United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Elsa Huertas, proceeding pro se. has filed an appeal
of the U.S. Bankruptcy Court's September 19, 2016 order
dismissing her case and terminating the automatic stay
imposed pursuant to 11 U.S.C. § 362(a). See ECF
No. 1; ECF No. 1 -1. For the reasons that follow.
Appellant's Appeal is dismissed.
Rule 8018 requires Appellant to "serve and file a brief
within 30 days after the docketing of notice that the record
has been transmitted or is available electronically."
See Fed. R. Bankr. P. 8018(a)(1). The Designation of
Record was docketed on November 1. 2016, ECF No. 5, and on
November 2, 2016, Appellant was sent a letter notifying her
that she had 30 days to file her brief. ECF No. 6. On
November 22, 2016, prior to the filing deadline. Appellant
moved for a 45-day extension. ECF No. 8. which this Court
granted on December 6. 2016. ECF No. 9. On January 23, 2017,
three days after the new deadline expired. Appellant filed an
"Emergency Motion for an Extension of Time to File
Appellant's Brief." stating that Appellant was
"currently being treated for severe medical
conditions." ECF No. 10 at l. On March 10. 2017. the Court
issued a paperless order granting Appellant's Emergency
Motion for a 45-day extension, but warned that "[n]o
further extensions [would] be granted." ECF No. 13.
final extension expired on April 24, 2017. Subsequently on
April 26. 2017. Appellee Nancy Spencer Grigsby, the Chapter
13 Trustee, moved to dismiss the appeal. ECF No. 14. The next
day. April 27, 2017. Appellant was sent a letter notifying
her that a Motion to Dismiss had been filed in her case and
that failure to respond could result in dismissal of the
case. ECF No. 15." On May 11, 2017. the two remaining
Appellees, Bank of America and Nationstar Mortgage, LLC,
moved to dismiss the appeal on the same grounds as Appellee
Grigsby. ECF No. 17. Appellant was similarly sent a letter
notifying her of the second motion to dismiss and that
failure to respond could result in dismissal of her case. ECF
No. 18. To date, the Court has not received a response to
either of Appellees" Motions and Appellant's time to
respond has expired.
Rule 404.3 permits the Court to dismiss an appeal for
non-compliance with Bankruptcy Rule 8018 "after giving
the appellant an opportunity to explain the non-compliance
and upon considering whether the non-compliance had
prejudicial effect on the other parties." See
Loc. R. 404.3 (D. Md. 2016). Also, Fed.R.Bankr.P. 8003(2)
(formerly cited as Rule 8001(a)) provides that "[a]n
appellant's failure to take any step other than the
timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for the district
court...to act as it considers appropriate, including
dismissing the appeal." In determining whether to
dismiss a bankruptcy appeal for a 8003(2) violation, a
district court must: "(1) make a finding of bad faith or
negligence; (2) give the appellant notice and an opportunity
to explain the delay; (3) consider whether the delay had any
possible prejudicial effect on the other parties; [and] (4)
indicate that it considered the impact of the sanction and
available alternatives/* In re Harris, 129 F.3d
1259, *2 (4th Cir. 1997) (unpublished) (citing In re
Serra Builders, Inc.. 970 F.2d 1309. 1311 (4th Cir.
1992); see also In re Weiss, 111 F.3d 1159. 1173
(4th Cir. 1997) (noting all factors should be considered and
the second factor alone is insufficient to dismiss an
failure to serve and file a brief within the time required by
the Federal Rules of Bankruptcy Procedure is negligent. The
Designation of Record was docketed on November 1. 2016, ECF
No. 5. and Appellant was mailed a letter the next day.
notifying her that she had 30 days to file her brief. ECF No.
6. The Court subsequently granted Appellant two extensions,
providing her with ample time to comply. ECF Nos. 9 & 13.
In granting Appellant's second 45-day extension in March,
the Court explicitly stated that "[n]o further
extensions [would] be granted." ECF No. 13. Finally.
Appellant was given an opportunity to respond to
Appellees' Motions to Dismiss Appeal and was warned that
a failure to respond could result in the dismissal of her
appeal. ECF Nos. 15 & 18.
Appellant's failure to comply with Bankruptcy Rule 8018,
"burdens the Court's docket, unnecessarily delays
resolution of the controversies in this case, and is
prejudicial to the prompt administration of justice."
McDaniel v. Fed. Nat. Morlg. Ass'n, No. RWT
14-CV-0626, 2015 WL 1522942. at *3 (D. Md. Mar. 31, 2015)
(discussing failure to follow procedural rules in a
bankruptcy appeal). Appellant's delay also prejudices her
creditors by depriving them of the opportunity to take
advantage of the Bankruptcy Court's decision to lift the
automatic stay. ECF No. 1-1.
the Court recognizes that dismissal of a bankruptcy appeal
for a procedural error is a harsh remedy that should not be
imposed lightly, see In re Serra Builders. 970 F.2d
at 1311, anything less would be futile given that Appellant
has failed to pursue this appeal in a timely manner. See
Tekmen v. John E. Harms, Jr. & Assocs., Inc.. 2011
WL 5061874, at *5 (D. Md. Oct. 25, 2011) (". . . this
Court finds that dismissal is nonetheless appropriate where
Appellants consistently disregarded procedural rules without
providing reasonable excuse or explanation for their
Appellant's Appeal, ECF No. 1, is hereby dismissed. A
separate Order follows.
 Pin cites to documents filed on the
Courfs electronic filing system (CM/ECF) refer to the page