Brookover v. Vanderheiden

¶1MEMORANDUM2

¶2Phillip and Vickie Brookover appeal pro se the district court’s order affirming the bankruptcy court’s decision to reopen the Brookovers’ bankruptcy proceedings and except from discharge a superior court judgment against the Brookovers. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand.

¶3We review the timeliness of a notice of appeal de novo. Delaney v. Alexander (In re Delaney), 29 F.3d 516, 517 (9th Cir.1994) (per curiam). The court of appeals must consider the jurisdictional issue sua sponte and regardless of whether it was raised below. Greene v. United States (In re Souza), 795 F.2d 855, 857 n. 1 (9th Cir.1986).

¶4A notice of appeal must be filed with the district court within 10 days of the bankruptcy court’s entry of judgment. Fed. R. Bankr.P. 8002(a). The provisions of Bankruptcy Rule 8002 are jurisdictional and are strictly construed. See Greene, 795 F.2d at 857. The untimely notice of appeal was not called to the attention of the district judge, nor was it cited to us. However, because the Brookovers filed their notice of appeal to the district court more than 10 days after the bankruptcy court entered judgment, the district court lacked jurisdiction over their untimely appeal. See id. at 857-58. Accordingly, we vacate the district court’s order and remand for dismissal.

¶5We deny appellee’s request for attorneys fees and costs. Each party shall bear its own costs on appeal.

¶6VACATED and REMANDED.