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In re Nyholm

January 12, 2009

IN RE: ROBERT NYHOLM AND BONNIE NYHOLM, DEBTORS.
ROBERT NYHOLM AND BONNIE NYHOLM, APPELLANTS,
v.
JOSEPH ISRAEL, APPELLEE.



ON APPEAL FROM AN ORDER OF THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW JERSEY [Case No. 06-22768/GMB]

The opinion of the court was delivered by: Simandle, District Judge

[Adversary No. 07-01689/GMB]

MEMORANDUM OPINION

This bankruptcy appeal is before the Court upon its own motion pursuant to this Court's Order of November 21, 2008. THIS COURT FINDS AS FOLLOWS:

1. Appellants Robert Nyholm and Bonnie Nyholm filed this appeal of an Order entered by the Honorable Gloria Burns, United States Bankruptcy Judge, in the underlying Chapter 13 bankruptcy action. Judge Burns conducted a bench trial between these parties after the Nyholms sought to void a sale-leaseback agreement they entered into with Appellee, Joseph Israel, under which they sold certain property to Appellee. Judge Burns entered an order on July 2, 2008 granting judgment in favor of Mr. Israel and rejecting Appellants' argument that they had a right to reacquire the property. Appellants filed a motion for a new trial, which Judge Burns denied in an Order entered August 11, 2008. (Docket Item 1 at 7.) This Docket, entered on September 3, 2008, is an appeal from Judge Burns' August 11, 2008 Order.

2. Federal Rule of Bankruptcy Procedure 8009(a)(1) requires that a bankruptcy appellant "serve and file a brief within 15 days after entry of the appeal on the docket." Fed. R. Bankr. P. 8001(a). Prior to the expiration of this fifteen-day period, the Court granted the parties' request for a thirty-day extension for briefs, requiring that Appellants submit their brief no later than October 18, 2008, and that Appellee submit its brief no later than November 3, 2008.

3. Appellants failed to file their brief by October 18, 2008 and did not request an additional extension of time prior to that date. More than a month after the expiration of this extended deadline, however, on November 20, 2008, Appellants filed a motion seeking emergent relief in the form of (1) an order staying a warrant of eviction of the property at issue in the bankruptcy trial that had been entered in New Jersey state court, and (2) a stay of Judge Burns' Order denying Appellants' motion for a new trial. (Docket Item 5 at 10.) The Court convened a hearing on November 21, 2008 to hear oral argument on Appellants' motion.

4. In its November 21, 2008 Order, the Court denied Appellants' motion, finding that the Court lacked jurisdiction to entertain Appellants' request for an order staying the warrant of eviction, and that Appellants were unlikely to prevail on the merits of their appeal of Judge Burns' order. (Docket Item 4 at 2-3.) As to the matter of Appellants' failure to file a brief in support of their appeal, the November 21, 2008 Order provided:

IT IS . . . ORDERED that Appellants shall submit their Brief, which is currently overdue, not later than December 21, 2008, and, if Appellants' brief is timely filed, the Appellee's Brief shall be submitted not later than January 18, 2009; and

IT IS FURTHER ORDERED that if Appellants fail to file their Brief before the above deadline, this appeal will be dismissed for failure to prosecute, without further notice, pursuant to Bankruptcy Rule 8009.

(Id. at 3.)

5. Appellants failed to file their brief by December 21, 2008. On December 23, 2008, the Court received, via facsimile, a request from Appellants for yet another thirty-day extension.

6. The Court will deny Appellants' belated request and dismiss this appeal for failure to prosecute. Initially, the Court recognizes that in bankruptcy appeals,

the appellant brief serves a very important purpose. It contains a statement of the basis of appellate jurisdiction, the issues presented before the Court and applicable standard of review, a statement of relevant facts and all arguments thereto. Therefore, failure to file the appellate brief ...


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