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In re Johnson

January 29, 2007

IN RE DAVID TIMOTHY JOHNSON, DEBTOR.
DAVID TIMOTHY JOHNSON, APPELLANT,
v.
WELLS FARGO BANK, N.A., APPELLEE.



The opinion of the court was delivered by: Mary L. Cooper United States District Judge

Bankruptcy No. 06-15876 (KCF)

MEMORANDUM OPINION

IT APPEARING that these dates and events are relevant here:

! September 14, 2006: the United States Bankruptcy Court issues an order granting the appellee's motion to (1) vacate the automatic stay, (2) pursue its rights in certain "mortgaged premises," and (3) bar the automatic imposition of a stay as to the mortgaged premises if the appellant - David Timothy Johnson - makes any "future filings" ("9-14-06 Order") (dkt. entry no. 1-3);

! September 21, 2006: Johnson moves in Bankruptcy Court "to rescind, vacate, reconsider, or set aside" the 9-14-06 Order, and thus moves, in effect, under (1) Federal Rule of Bankruptcy Procedure ("Rule") 9023(e) to alter or amend the 9-14-06 Order, and (2) Rule 9024(b) for relief from that order ("9023/9024 Motion") (Bankr. No. 06-15876 (KCF), dkt. entry no. 29), see Dimeff v. Good (In re Good), 281 B.R. 689, 698 (B.A.P. 10th Cir. 2002) (construing "motion for reconsideration" as motion under Rules 9023 and 9024);

! November 2, 2006: Johnson - despite the pending 9023/9024 Motion - (1) files a notice of appeal from the 9-14-06 Order ("Notice of Appeal"), and (2) separately moves in Bankruptcy Court for an "emergency stay" of the 9-14-06 Order ("Bankruptcy Court Stay Motion") (Bankr. No. 06-15876 (KCF), dkt. entry nos. 35-36);

! November 3, 2006: Bankruptcy Court issues an order denying the 9023/9024 Motion ("11-3-06 Order") (id., dkt. entry no. 34);

! November 6, 2006: Johnson files a motion for an "emergency stay . . . pending appeal" of the 9-14-06 Order in this Court ("District Court Stay Motion"), which is assigned its own docket number (Civil Action No. 06-5313 (MLC), dkt. entry no. 1);*fn1

! November 27, 2006: Bankruptcy Court issues an order denying the Bankruptcy Court Stay Motion ("11-27-06 Order") (Bankr. No. 06-15876 (KCF), dkt. entry no. 43);

! December 7, 2006: Bankruptcy Court certifies that Johnson has failed to file a designation of record for the appeal ("Certification of Failure") from the 9-14-06 Order (id., dkt. entry no. 45);

! December 11, 2006: Bankruptcy Court transmits the Notice of Appeal and Certification of Failure to this Court; and

AN APPELLANT generally being required to file "a designation of the items to be included in the record on appeal and a statement of the issues to be presented" ("Designation") within 10 days after filing a notice of appeal, Fed.R.Bankr.P. 8006; but

IT APPEARING that if an appellant also:

makes a [certain] timely motion . . . , the time for appeal . . . runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion: (1) to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment; (2) to alter or amend the judgment under Rule 9023; (3) for a new trial under Rule 9023; or (4) for relief under Rule 9024 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the . . . order, . . . but before disposition of any of the above motions is ineffective to appeal from the . . . order . . . specified in the notice of appeal, until the entry of the order disposing of ...


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