F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 28 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re: GERALD WEDEL; LETHA
WEDEL,
Debtors,
_______________________________
GERALD WEDEL; LETHA WEDEL,
Appellants,
v. No. 03-3242
(BAP No. KS-03-050)
CASE CREDIT CORPORATION, (BAP)
Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellants seek review of an order of the Bankruptcy Appellate Panel
(BAP) dismissing their appeal from an order granting appellee’s motion to modify
the automatic stay. The BAP dismissed appellants’ appeal for lack of jurisdiction
because it was untimely filed. We have jurisdiction, and we affirm.
We review de novo the question of whether the BAP properly dismissed
appellants’ appeal as untimely. Mason v. Young (In re Young) , 237 F.3d 1168,
1172 (10th Cir. 2001). The notice of appeal from a bankruptcy court order must
be filed with the clerk of the bankruptcy court “within 10 days of the date of the
entry of the judgment, order, or decree appealed from.” Fed. R. Bankr. P.
8002(a). The bankruptcy court’s order modifying the stay was entered on
April 16, 2003, but the notice of appeal was not filed until June 13, 2003. The
requirement of timely filing of a notice of appeal is mandatory, and the failure to
do so deprives an appellate court of jurisdiction. See Deyhimy v. Rupp (In re
Herwit) , 970 F.2d 709, 710 (10th Cir. 1992).
Before the BAP, appellants argued that they had not received notice of the
order modifying the stay. The bankruptcy court’s docket report, however, reflects
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that they were properly served with a copy of the order by first class mail.
Aplee’s Supp. App. at 89. Their attorney was also served. Id.
On appeal, appellants have focused on the merits of their challenge to the
BAP’s order modifying the stay. They also reiterate briefly, and without support,
that they were not notified by either the court or their attorney until after the
appeal deadline. However, even lack of notice of the entry of an order does not
excuse the “failure to appeal within the time allowed . . . .” Fed. R. Bankr. P.
9022(a). We therefore conclude that the BAP correctly dismissed appellant’s
appeal for lack of jurisdiction.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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