108 F.3d 1385
In re Eugene MA; Joanne Ma, Debtors.
Eugene MA; Joanne Ma, Appellants,
IVANJACK & LAMBIRTH, fdba Ivanjack, Lambirth & Aranoff;
fdba Ross, Ivanjack & Lambirth; U.S. Small
Business Administration; Thomas
United States Court of Appeals, Ninth Circuit.
Submitted March 11, 1997.*
Decided March 13, 1997.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: SNEED, LEAVY, and THOMAS, Circuit Judges.
Chapter 7 debtors Eugene and Joanne Ma appeal the Bankruptcy Appellate Panel's dismissal, as untimely, of their appeal from the bankruptcy court's order dismissing the Mas' action against the Small Business Administration, which alleged the SBA violated the automatic stay by levying against the Mas. Although the Mas concede that they failed to file their notice of appeal within 10 days as required by Fed.R.Bank.P. 8002, they contend there was excusable neglect. They allege that the bankruptcy court clerk told their attorney that the bankruptcy judge had signed the order, but that the clerk could not determine whether the order had been entered on the docket. As a result, their attorney did not file a timely notice of appeal. Unlike the claimant in Zurich Insurance Company v. Wheeler, 838 F.2d 338 (9th Cir.1988), the bankruptcy clerk never misinformed the Mas' attorney, and in fact alerted the attorney to the fact that an order had been signed. The Mas subsequent failure to file a timely notice of appeal, therefore, is not excused, and we affirm the BAP's dismissal.