UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ In re: MICHAEL LYNN ROBERTSON, Debtor.
BANNER BANK, formerly doing business in Utah as AmericanWest Bank or Far West Bank, Plaintiff - Appellee,

v. MICHAEL LYNN ROBERTSON, Defendant - Appellant. No. 18-4060 (BAP No. 17-034-UT) (Bankruptcy Appellate Panel)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ The United States Bankruptcy Appe llate Panel of the Tenth Circu it (BAP) dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of jurisdiction. The BAP reasoned th at a post-judgment motion Mr. Robertson filed

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 29, 2019
Elisabeth A. Shumaker Clerk of Court2 under Federal Rule of Bankrupt cy Procedure 9023 was untimely an d therefore did not toll the time limit for fil ing his notice of appeal from th e bankruptcy court’s underlying judgment. Accordingly , the BAP concluded that his n otice of appeal was untimely and that the BAP lacked jurisdiction. Exercising juri sdiction under 28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 90 23 motion was untimely and reaffirm Tenth Circu it precedent that the time to file a notice of appeal from a bankruptcy court is jurisd ictional. We also hold that a n untimely Rule 9023 motion is ineffective to toll th e time for filing a notice of a ppeal and that the BAP may raise the timeliness of a Rule 9023 motion sua sponte. We deny without prejudice appellee’s reque st for attorney fees. I. Overview of legal framework The issues in this appeal turn primarily on one statute and se veral rules of bankruptcy procedure governing th e time to file a notice of app eal from a bankruptcy court. We therefore set out the r elevant legal framework befor e turning to the facts and procedural backgr ound of this case. In 28 U.S.C. § 158(c)(2), Congres s included a timeliness condit ion for taking appeals from bankruptcy court decisions: “An appeal under subs ections (a) and (b) of this section shall be taken i n the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules.” § 158(c)(2) (emphasis added). In turn, Bankruptcy Rule 8002(a)(1) st ates: “Except as provided i n subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after3 entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a)(1). An exception in subdi vision (b) is relevant here a nd provides that Rule 8002(a)(1)’s 14-day time period for filing a notice of appeal c an be extended when certain motions, including a Rule 9023 motion, are timely filed: If a party files in the bankrupt cy court any of the following m otions and does so within the time allo wed by these rules , the time to file an appeal runs for all parties from the entr y of the order disposing of the last such remaining motion: . . . (B) to alter or amend the judgment unde r Rule 9023[.] Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And Bankrupt cy Rule 9023 requires that “[a] motion for a new trial or to alter or amend a judgment shall be filed . . . no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. With this framework in mind, we turn to the factual and proced ural background of this case. II. Factual and procedural background Through counsel, Mr. Robertson filed a Chapter 7 bankruptcy pe tition. Banner Bank (Bank) initiated an adversary proceeding seeking to except from discharge a deficiency judgment it had obtaine d against Mr. Robertson in Ut ah state court. After Mr. Robertson’s counsel withdrew , Mr. Robertson proceeded pro s e, and the parties filed cross-motions for summary judgment. On March 30, 2017, t he bankruptcy court entered an order and judgm ent granting the Bank’s motion and denying Mr. Robertson’s motion. Fourteen d ays later, on April 13, 2017 , Mr. Robertson mailed a Rule 9023 motion to the bankruptcy court, asking the c ourt to reconsider, alter, or amend the judgment. The motion was entered on the ba nkruptcy court’s4 docket on April 14, 2017, which w as 15 days after the judgment. The parties fully briefed the motion, and the Bank n ever complained that the moti on was untimely. The bankruptcy court denied the m otion on the merits, never men tioning whether the motion was timely. On July 14, 2017, 14 days afterthe bankruptcy court disposed of the Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of appeal designated only the bankruptcy court’s March 30, 2017 or der and judgment as the subject of the app eal. After the parti es completed merits briefing—where the Bank did not dispute that the BAP had jurisdiction over the app eal—the BAP issued an order to show cause why the appeal should not be dismissed f or lack of jurisdiction because the notice of appeal appeared untimely. After considering the parties’ r esponses to the show-cause orde r, the BAP determined that the notice of a ppeal was untimely. The BAP con cluded that because Mr. Robertson’s Rule 9023 motion was filed 15 days after entry of judgment, it was untimely and therefore did not toll the running of Rule 8002(a) (1)’s 14-day appeal period, which the BAP treated a s jurisdictional. In reaching i ts conclusions, the BAP rejected Mr. Robertso n’s argument that mailing the Rule 9023 motion on the fourteenth day after e ntry of the judgment was sufficient to re nder the motion timely filed , which the BAP said occurs whe n “a document [is] received by t he clerk,” R., Vol. I at 35. The BAP also reject ed his argument that by maili ng the motion to the clerk, he had served the clerk, and that service is complete up on mailing. The BAP reasoned that Rule 9023 requires filing within 14 days, and serv ice is not equivalent5 to filing. Accordingly, the BAP concluded that his notice of a ppeal was untimely and dismissed the appeal forlack of jurisdiction. Mr. Robertson filed a motion for rehearing or to alter or amend the BAP’s judgment, arguing that the time to file an appeal with the BAP was not jurisdictional, that Rule 9023 is a claim-proces sing rule and the Bank had forf eited any objection to the timeliness of his Rule 9023 motion, and that the BAP should not have considered the timeliness of that motion su a sponte. The BAP denied the m otion for rehearing. This appeal followed.
III. Discussion Mr. Robertson raises three issu es on appeal, which we address in the following order: (1) whether a Rule 9023 motion is deemed filed when mai led, so that his Rule 9023 motion was timely filed; (2) whether this circuit’s l aw that Rule 8002(a)(1)’s time limit for fili ng a notice of appeal from a ba nkruptcy court’s judgment is jurisdicti onal remains good afte r intervening Supre me Court decisions; and (3) whether Rule 9023’s 14- day timeliness requirement is a claim-processing rule that the Bank waived, so the unt imely Rule 9023 motion was effe ctive in tolling the appeal period. The third issue has a related concern: whetherit was proper for the BAP to raise the timeliness of the Rule 9023 motion sua sponte as a predicate to determining its jurisdiction. The issues on appeal concern ma tters of law or “mixed questions consisting primarily of legal conclusions dra wn from the facts,” so our re view is de novo. Gullickson v. Brown (In re Brown) , 108 F.3d 1290, 1292 (10t h Cir. 1997). We afford6 a liberal construction to Mr. R obertson’s pro se filings, but w e do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008).
A. A Rule 9023 motion is file d when the court receives it We first address whether Mr. R obertson’s Rule 9023 motion was timely filed. If it was, then it tolled the app eal period, his notice of appe al to the BAP was timely, and we would not have to address any other issues in this appea l. We conclude, however, that the motion was not timely filed. Mr. Robertson argues that his mo tion should be treated as filed on April 13, 2017, the fourteenth day after e ntry of judgment, because he pl aced it in the United States mail that day, postage p repaid. He contends that the Fe deral Rules of Bankruptcy Procedure do not defin e when “filing” occurs, but he advocates for defining that moment by referen ce to Supreme Court Rule 29.2, w hich allows the date of filing to be the date o f mailing provided certain requi rements are satisfied. 1 We disagree with Mr. Robertson’s premise that no federal bankru ptcy rule defines when filing occurs. The refore, we need not consider wh ether Supreme Court Rule 29.2 should apply. As noted , a Rule 9023 motion must be “ filed . . . no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023 (emphasis added). In adversary proceedings, such as we have here , the filing of pape rs is governed by

1 In relevant part, Supreme Cour t Rule 29.2 provides: “A docume nt is timely filed if it is received by the Cl erk within the t ime specified for filing; or if it is sent to the Clerk through the United Stat es Postal Service by first-cla ss mail (including express or priority mail), posta ge prepaid, and bears a postmar k, other than a commercial postage meter label, s howing that the document was m ailed on or before the last day forfiling . . . .”7 Federal Rule of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (“Rule 5 F.R.Civ.P. applies in adversary proceedings .”). And under Civil Rule 5, “ [a] paper not filed electronically”—like Mr. Robertson’ s Rule 9023 motion—“is filed by delivering it . . . to the clerk” or “to a judge who agrees to accept it for filing.” Fed. R. Civ. P. 5(d)(2) (emphasis added). De livery, and hence filing, requi res receipt by the clerk or a judge. See United States v. Lombardo , 241 U.S. 73, 76 (1916) (“Filing, it must be observed, is not complete un til the document is delivered an d received.”); In re Nimz Transp., Inc. , 505 F.2d 177, 179 (7th Cir. 1974) (“[M]ailing alone does not constitute filing[.] . . . [F]il ing requires delivery and recei pt by the proper party.” (citations omitted)); Kahler-Ellis Co. v. Ohio Tpk. Comm’n , 225 F.2d 922, 922 (6th Cir. 1955) (depositing a doc ument in the mail “is not a fi ling; only when the clerk acquires custody has [a doc ument] been filed” (citations omitted)). Mr. Robertson does not argue that the clerk or a judge received his Rule 9023 motion on April 13, 2017, but onl y that he mailed it on that da te. Consequently, the motion was untimely. 2

2 The Bank has not cited Rule 70 05 or its incorporation of Civil Rule 5, and the BAP approached this issue by analyzing the meaning of the w ord “filed” in Federal Rule of Bankruptcy Proce dure 5005(a)(1), which provides that “motions . . . required to be filed by these rule s, except as provided in 28 U .S.C. § 1409 [concerning venue in Chapter 11 p roceedings], shall be filed wi th the clerk in the district where the case under th e Code is pending.” Even if Ba nkruptcy Rule 5005 controls, we would reach the sam e conclusion—that mailing is no t equivalent to filing.8 B. Rule 8002(a)(1)’s time limit is jurisdictional We next consider Mr. Robertson’ s argument that Rule 8002(a)(1)’ s 14-day time limit for filing a notice of appeal from a bankruptcy cour t’s ruling is not jurisdictional but a claim-proces sing rule. The distinction ma tters because if a time limit for filing a notice of appeal is “jurisdictional,” then “ late filing of the appeal notice necessitates dismissal of the appeal”; but if it is “a m andatory claim-processing rule,” it is “ subject to forfeiture if not pro perly raised by the [opposing party].” Hamer v. Neighborhood Hous. Servs. of Chicago , 138 S. Ct. 13, 16 (2017). For the following r easons, we reject Mr. Robertson’ s argument. We considered Rule 8002(a) in Deyhimy v. Rupp (In re Herwit) , 970 F.2d 709, 710 (10th Cir. 1992), holding that the “failure to file a timel y notice of appeal [is] a jurisdictional defect barri ng appellate review.” In Emann v. Latture (In re Latture) , 605 F.3d 830 (10th Ci r. 2010), we reaffirmed our holding in In re Herwit after considering the Supreme Court’s intervening jurisprudence conce rning the distinction between time limits that are non -waivable jurisdictional requir ements and those that are waivable claim-processing rules. See id. at 832–37. 3 Consistent with that intervening jurisprudence, we c onsidered whether Congress had “ ‘rank[ed] [the] statutory limitation . . . as jurisdictional,’” id. at 834 (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 516 (2006)), and th e “‘context, including [the Supreme] Court’s

3 Just prior to our decision in In re Latture , the BAP conducted a similar analysis and reached the same c onclusion that Rule 8002(a)(1) i s jurisdictional. See Hatch Jacobs, LLC v. Kingsley Capital, Inc. (In re Kingsl ey Capital, Inc.) , 423 B.R. 344, 347–51 (B.A.P. 10th Cir. 2010).9 interpretation of similar provisi ons in many years past,’” to d etermine whether Rule 8002(a)(1)’s 14-day time li mit is “‘jurisdictional,’” id. at 835 (quoting Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 168 (2010)). We discussed several factors indicating that Rule 8002(a)(1)’s 14-day time limit is a jurisd ictional time prescription, not a waivable or f orfeitable claim-processing ru le: First, we noted that in 28 U.S. C. § 158(c)(2), Congress had “ex plicitly included a timeliness condition” f or taking appeals—“that a not ice of appeal be filed within the time provided by Rule 8002(a).” In re Latture , 605 F.3d at 837. Second, we noted that this “time liness requirement . . . is lo cated in the same section granting the district c ourts and bankruptcy appellate p anels jurisdiction to hear appeals from bankruptcy courts—Section 158(a)-(b).” Id. And third, we observed that in Bowles v. Russell , 551 U.S. 205 (2007), the Supreme Court had noted that “ti me limits for filing a notice o f appeal have been treated as jurisdictional in Ame rican law for well over a centu ry.” Id. at 210 n.2. Although Bowles concerned a civil appeal rather than a bankruptcy appeal, we d id not “believe [that] distinction makes a difference” because “th e Advisory Committee Notes accompanying Rule 8002(a) s tate that the rule is an adapt ation” of the same rule the Court addressed in Bowles , Federal Rule of Appellate Procedure 4(a), In re
Latture , 605 F.3d at 837 (internal quot ation marks omitted), and Bowles and Reed
Elsevierinstruct that we must “look at the [Supreme] Court’s ‘interpre tation of similar provisions,’” id. (quoting Reed Elsevier, Inc. , 559 U.S. at 168). We also noted that historically, all cir cuits had treated Rule 8002(a)( 1)’s time limit as10 jurisdictional prior to Kontrick v. Ryan , 540 U.S. 443 (2004), which launched the Supreme Court’s recent series of decisions analyzing whether ti me limits and other conditions in statutes and ru les are jurisdictional. In re Latture , 605 F.3d at 837. Mr. Robertson claims that In re Latture was wrongly decid ed and should be overturned (1) because we misapp lied the Supreme Court decision s we discussed in
In re Latture and (2) in light of decisions t he Supreme Court has issued sin ce In re
Latture that involved or discussed app eals from or to courts that, lik e bankruptcy courts and the BAP, are Article I courts, not Article III court s. But this panel is “bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Meyers , 200 F.3d 715, 720 (10th Cir. 2000) (emphasis added) (internal q uotation marks omitted). Therefore, in determ ining what is binding precedent from this court, we will consider only Supreme C ourt decisions issued after In re Latture that Mr. Robertson cites in his openi ng brief and that are substanti vely relevant to his “Article I” argument. 4 We discern two such cases: Hamer v. Neighborhood Housing

4 In addition to his “Article I” argument, Mr. Robertson suggest s that In re Latture is in tension with Federal Rul e of Bankruptcy Procedure 9030. Aplt. Opening Br. at 10–11. Rule 9030 r eads: “These rules shall not be construed to extend or limit the jurisdicti on of the courts or the venue of any matters therein.” We rejected this argument in In re Latture , 605 F.3d at 837, holdi ng that § 158(c)(2) determined the timeliness component of jurisdiction over appeal s from bankruptcy courts “by incorporating the tim e limits prescribed in Rule 800 2(a).” None of the later Supreme Court decisions Mr . Robertson cites in his openin g brief bear on that conclusion. Accordingly, this pa nel will not reconsider the po int. Meyers , 200 F.3d at 720.11 Services of Chicago , 138 S. Ct. 13 (2017), and Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428 (2011) ( Henderson ). 5 Neither one requi res us to overturn In
re Latture

. In Hamer , the Supreme Court held that Fe deral Rule of Appellate Procedu re 4(a)(5)(C)’s 30-day time limit on the length of an extension of time to file a notice of appeal in a civil case is a nonj urisdictional claim-processing rule. 138 S. Ct. at 21. Facially, that holding has no a pplication here. But Mr. Robert son directs our attention to the following statement in Hamer : “The rule of decision our precedent shapes is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to anotherappears in a statute, the limitation is jurisdictional; otherwise , the time specification fits within the claimprocessing category[.]” Id. at 20 (emphasis added) (cita tion omitted). Mr. Robertson claims the reference to an “A rticle III court” means that only timeliness prescriptions concerning “appeals from one Ar ticle III court to another are j urisdictional,” Aplt.

5 In his opening brief, Mr . Robertson also relies on Sebelius v. Auburn Regional Medical Center , 568 U.S. 145 (2013), in sup port of his “Article I” argument. The time limits at issue in Sebelius , however, did not involve any federal courts but the time to appeal fro m a Medicare reimbursement det ermination by “[g]overnment contractors, calle d fiscal intermediaries, . . . to an administrative body named the Provider Reimbur sement Review Board.” Id. at 821. Sebelius is therefore not germane to Mr. Robertson’s “Article I” argument. Consequen tly, we will discuss it no further. In his reply brief, Mr. Robe rtson relies on ano ther recent case, Patchak v. Zinke , 138 S. Ct. 897 (2018), in support of his “Article I” argument . But that reliance comes too late. Patchak was decided before Mr. R obertson filed his opening brief, but he waited until his reply brief to cite it. We ordi narily do not consider matters raised for the first tim e in a reply brief, including a rguments that might support a court’s jurisdiction. McKenzie v. U.S. Citizensh ip and Immigration Servs. , 761 F.3d 1149, 1154–55 (10th Ci r. 2014). We decline to do so h ere.12 Opening Br. at 14, and therefore “appeals from Article I Bankru ptcy courts fit into the claim processing category,” id. at 11. He posits that Rule 8002(a)(1) sets the time limit to appeal from one Article I court (a federal bankruptcy court) to another (the BAP) and is therefore nonjurisdictional under Hamer

. We disagree. Nothing in Hamerindicates that the Court’s analysis turned on the constitutional basis for a federal court’s jurisdiction. I nstead, the Court’s rationale was that the 30-day tim e limit, which purported to ap ply “in all circumstances,” was set forth only in Appellate Rule 4(a)(5)(C) , whereas the relevant statute, 28 U.S.C. § 2107(c), se t a shorter time limit (14 days ) on the length of an extension only in cases where “th e prospective appellant lacked notice of the entry of judgment.” Hamer , 138 S. Ct. at 19 (empha sis omitted). Nor does Hamer stand for the proposition that a timeliness prescription for taking an ap peal from or to an Article I court is per se a clai m-processing rule. To the cont rary, Hamercited examples of “cases not involving the timebound transfer of adju dicatory authority from one Article III court to anot her” where the Court had “add itionally applied a clear-statement rule.” Id. at 20 n.9. The Court then expl ained that the rule requires consideration of “context” and the “Court’s interpretations of similar provisions in many years past” when determining if Congress provided a clear statement that a particular provision was inte nded to be jurisdictional. Id. (internal quotation marks omitted). That expl anation confirms In re Latture ’s analytical course, which included consideration of contex t and precedent in determining whether Congress has “rank[ed]” a time lim it as jurisdictional. In re Latture , 605 F.3d at 834.13 For these reasons, nothing in Hamercauses us to question the analysis or result in In re Latture on the basis that time limits for filing notices of appeal fro m or to Article I courts are nonjuri sdictional claim-processing rule s. Other courts have agreed. See Wilkins v. Menchaca (In re Wilkins) , 587 B.R. 97, 105 (B.A.P. 9th Cir. 2018) (“[T]here is nothing in Hamerthat gives us a reason to reexamine the Ninth Circuit’s longstanding constructi on of the time deadline in Rul e 8002(a)” as jurisdictional.); In re Jackson , 585 B.R. 410, 412, 415–16 , 420–21 (B.A.P. 6th Cir. 2018) (considering Hamer and concluding that § 158(c )(2)’s time requirement, as implemented by Rule 8002(a )(1), is jurisdictional).
Henderson is even further afield than Hamer . In Henderson , the Supreme Court held that a statutory 12 0-day deadline for filing a notic e of appeal from a decision by the Board of Veteran s’ Appeals to the United States Court of Appeals for Veterans Claims was not jurisdi ctional. 562 U.S. at 431. Afte r noting that none of its precedents, including Bowles , controlled the outcome be cause the case involved “review by an Article I tribunal as part of a unique administra tive scheme,” the Court considered several factors bea ring on congressional intent. Id. at 437–38. And it was those factors—not the Article I n ature of the reviewing court—t hat informed the result. For our purposes, the m ost significant of those other factors are (1) the absence of jurisdictional terms in the statute at issue and (2) the numerous differences between “ordinary civil litigati on” that “provided the context of [the Court’s] decision in Bowles ,” and the “informal and nonadver sarial” nature of “the system Congress that created for the a djudication of veterans’ benefit s claims,” id. at 440.14 In contrast, § 158(c)(2) does spea k in jurisdictional terms, as discussed in In re
Latture , 605 F.3d at 837. Furthermore, § 158(c)(2) directs that appea ls from bankruptcy courts “shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002.” The Henderson Court found that similar statutory language clearly signals an intent that a time limit should be treated a s jurisdictional. 562 U.S.
at 438–39. 6 And bankruptcy proceedings h ave much more in common with adversarial civil litigation th an with the nonadversarial schem e discussed in
Henderson

. See Bullard v. Blue Hills Bank , 135 S. Ct. 1686, 1692 (2015) (“A bankruptcy case involves an aggreg ation of indivi dual controver sies, many of which would exist as stand-alone lawsu its but for the bankrupt status of the debtor.” (internal quotation marks omitted)); In re Grasso , 519 B.R. 137, 140 (Bankr. E.D. Pa. 2014) (“The adversarial nature o f bankruptcy proceedings presum es the participation of creditors will be driven by th eir self-interest and not the expectation of

6 Mr. Robertson claims the word “generally” in § 158(c)(2), read in conjunction with 28 U.S.C. § 210 7(d)’s statement that § 2107, w hich sets the time for taking appeals in civil proceedi ngs, “shall not apply to bankru ptcy matters or other proceedings under Title 11,” indi cates that Congress was delega ting to the Supreme Court the authority to set how a nd when appeals are taken from bankruptcy courts. In further support, he notes tha t in 2009, the Supreme Court, w hich promulgates the Federal Rules of Bankruptcy Proce dure, extended Rule 8002(a)’s original 10-day limit to 14 days. But this argum ent does not depend on or deri ve solely from any Supreme Court decision issued after In re Latture ; Mr. Robertson cites only Henderson and only for its definition of claim-processing rules. See Aplt. Opening Br. at 9. So even if this were a meritorious argument (and we expressly disavow any suggestion that it is), it could not serve as a basis for overt urning In re Latture absent en banc reconsideration or a supe rseding Supreme Court decision

. Meyers , 200 F.3d at 720. We therefore declin e to discuss it further.15 payment.”); see also Tenn. Student Assistance Corp. v. Hood , 541 U.S. 440, 457 (2004) (Scalia, J., dissenting) (“The similarities between adve rsary proceedings in bankruptcy and federal civil litigation are striking.”). In sum, neither Hamer nor Henderson causes us to question the analysis or result in In re Latture . We therefore reject Mr. Robert son’s invitation to overturn In
re Latture and instead reaffirm that Rule 8 002(a)(1)’s time limit is juri sdictional.
C. Late-filed Rule 9023 motion did not toll the appeal period As noted, Bankruptcy Rule 8002( b)(1) extends or tolls Rule 8002 (a)(1)’s 14-day time period for filing a notice of appeal when certain m otions, including a Rule 9023 motion, are timely filed, and a Rule 9023 moti on must be filed “no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. Mr. Robertson argues that Rule 9023’s time limit is a claim-processing rule and ther efore subject to waiver and forfeiture. He notes that th e Bank did not c ontest whetherhis Rule 9023 motion was timely, either in the bankruptcy court or in merits briefin g before the BAP, and that the bankruptcy court denied it on the merits. He further argues that while the bankruptcy court was entertaini ng the motion, there was no fina l judgment to appeal. Therefore, he posits, it was erro r for the BAP to consider time liness of the Rule 9023 motion sua sponte and dismiss hi s appeal for lack of jurisdicti on. The Bank does not argue that Rule 9023’s time limit is jurisdic tional but urges that an untimely Rule 9023 moti on cannot toll the time to file a notice of appeal even if the opposing party does not rai se a timeliness objection to the bankruptcy court’s consideration of the motion, a nd even if the bankruptcy court d isposes of the motion16 on the merits. For reasons that follow, we conclude that Rule 9023’s time limit is a claim-processing rule, but an un timely Rule 9023 motion is inef fective to toll the time to appeal under Rule 8002(b )(1)(B) even if an opposing par ty does not object and the bankruptcy court dispos es of it on the merits, and the BAP can, sua sponte, raise the timeliness of a Rule 9023 motion for purposes of dete rmining its jurisdiction.
1. Rule 9023’s time limit is a claim-processing rule Rule 9023’s time limit appears to be a claim-processing rule; t he Bank has not suggested it has any statutory basis, and we are aware of none. See United States v.
Mitchell , 518 F.3d 740, 744 (10th Cir . 2008) (explaining that “ Bowles . . . clarified that court-issued federal procedur al rules not derived from sta tutes are not jurisdictional, but rather infl exible claim-processing rules”). But the parties have not cited any judicial decision di rectly on point, and the only cas e we have uncovered is Dixon-Ross v. Hartwell (In re Dixon-Ross) , No. 14-18608, 201 6 WL 1056776, at *2– 3 (E.D. Pa. Mar. 17, 2016) (unpub lished), where the court compa red Rule 9023 to Federal Rule of Civil Procedure 59(e) and held that the debtor forfeited a defense of untimeliness to the ba nkruptcy court’s cons ideration of an unti mely Rule 9023 motion by not raising that defense in a timely manner. We agre e. Analogizing from Rule 59(e) is proper because (1) Rule 9023 exp ressly states that, subject to exceptions notrelevant here, “Rule 59 . . . applies in cases under the [Bankruptcy] Code,” Fed. R. Bankr . P. 9023; and (2) like Rule 9 023, Rule 59(e)17 concerns the time limit (28 da ys) for filing a motion to alter or amend a judgment. 7
And all circuits that have consid ered the nature of Rule 59(e) in the wake of
Kontrick , Eberhart , and Bowles have held that it is a claim -processing rule because it is untethered to any ju risdictional statute. See Suber v. Lowes Home Ctrs., Inc. , 609 F. App’x 615, 616 (11th Cir . 2015) (per curiam) (“Th[e] tim e limit for filing a Rule 59(e) motion is a claims-pr ocessing rule, not a jurisdicti onal rule, because it is not grounded in a statutory requi rement.” (internal quotation m arks omitted)); Blue v. Int’l Bhd. of Elec. Wo rkers Local Union 159 , 676 F.3d 579, 584 (7th Cir. 2012) (concluding that Rule 59(e) is a “non-jurisdictional procedural rule[]” because it was “promulgated by the Supreme Cour t under the Rules Enabling Act, 28 U.S.C. §§ 2071–2077, and therefore ‘do[es ] not create or withdraw fede ral jurisdiction’” (quoting Kontrick , 540 U.S. at 453)); Lizardo v. United States , 619 F.3d 273, 277 (3d Cir. 2010) (same); Nat’l Ecological Found. v. Alexander , 496 F.3d 466, 475 (6th Cir. 2007) (same); First Ave. W. Bldg., LLC v. James (In re Onecast Media,
Inc. ), 439 F.3d 558, 562 (9th Cir. 2006) (concluding that “Rule 59 is . . . a claim-processing rule”); cf. Wilburn v. Robinson , 480 F.3d 1140, 1146 n.11 (D.C.

7 The exceptions in Rule 9023 are found in (1) the rule itself, which provides that, in contrast to Rule 59(e )’s 28-day time limit, a Rule 902 3 motion must be filed “no later than 14 days after entry of judgment,” Fed. R. Bankr. P. 9023; and (2) Bankruptcy Rule 3008, which c oncerns motions for “reconside ration of an order allowing or disallowing a claim against the estate,” Fed. R. Ba nkr. P. 3008. Neither exception is relevant to whetherwe may analogize from case law regarding Civil Rule 59(e) to determine if Rule 9023’s time limit is jurisdicti onal.18 Cir. 2007) (rejecting dissent’s a rgument that Rule 60(b) is jur isdictional because parallel Rule 59(e) is jurisdictional). 8 The reasoning of In re Dixon-Ross and our sister circuits with respect to Civil Rule 59(e) persuades us that Rule 9023 is a claim-processing ru le, and a party can waive or forfeit a timeliness objection to the bankruptcy court ’s consideration of a Rule 9023 motion filed more tha n 14 days after entry of judgmen t. In this case, the Bank forfeited such an objection . But this does not resolve th e more difficult question: Whether either an opp osing party’s waiver or forfeit ure of an untimeliness

8 In Watson v. Ward , 404 F.3d 1230, 1231 (10th Ci r. 2005), this court granted a certificate of appealability on “[w]hether the district court had jurisdiction to grant Respondent’s Rule 59 motion to a lter or amend judgment,” which had been filed well after what was then a 10-day time limit. We observed that “[w] ith admirable candor, Respondents concede that the dis trict court lacked jurisdiction .” Id. We then rejected an invitation to uphol d the district court’s ruling on the motion by treating it as if it was entered pur suant to Rule 60(b). Id. at 1232. But we provided little analysis of the jurisdictional issue, instead relying on (1) th e appellees’ concession that the district cour t lacked jurisdiction over an untimely Ru le 59(e) motion, and (2) Brock v. Citizens Bank of Clovis , 841 F.2d 344 (10th Cir . 1988), which predated Kontrick and stated in summary fashion that a district court had “corre ctly denied relief on jurisdictional grounds ” when it denied a Rule 59(e) m otion as untimely, id. at 347–48. See Watson , 404 F.3d at 1231. And although Watson post-dates Kontrick , which acknowledged the distinc tion between jurisdictional and claim-processing provis ions, it did not discuss Kontrick . Further, two panels of this court and one panel of the T enth Circuit BAP have cited Watson in noting we have not yet decided if Rule 59(e) is jurisdictional or a claim-proc essing rule in light of Kontrick and its progeny. See Martinez v. Carson , 697 F.3d 1252, 1258 n.1 (10th Cir. 2012); Sky Harbor Air Serv., Inc. v. Reams , 491 F. App’x 875, 891 n.17 (10th Cir. 2012); Onyeabor v. Centennial Pointe Prop. Owners’ Assoc. (In re Onyeabor) , BAP No. UT-14-047, 2015 WL 172 6692, at *6 n.60 (B.A.P. 10th C ir. Apr. 15, 2015). None of those th ree cases decided the issue ei ther. We therefore decline to base our ana lysis of Rule 9023 on Watson ’s suggestion that a district court lacks jurisdiction to grant a n untimely Rule 59 motion.19 argument in the bankruptcy court , or the bankruptcy court’s den ial of a Rule 9023 motion on the merits, rather than for untimeliness, means the u ntimely Rule 9023 motion can, under Rule 8002(b)(1)(B ), toll the appeal period an d hence render timely an otherwise untimely notice of appeal. We now turn to that qu estion. 2. An untimely Rule 9023 motion does not toll the appeal perio d The parties cite no judicial dec ision resolving whether an unti mely Rule 9023 motion can, under Rule 8002(b)(1)(B ), toll the time period in w hich to file a notice of appeal to the BAP or a district court, and we have found none. 9 We therefore must resort to analogous tolling rules. a. Analogous tolling rules Two procedural rules serve as pr oper analogues: Federal Rules of Appellate Procedure 4(a)(4)(A) and 6(b)(2)(A)(i). Rule 4(a)(4)(A) provides for t olling the jurisdictional time li mit for filing a notice of appeal from a district court to a circuit court found in 28 U.S.C. § 2107: “If a party files in the d istrict court any of the following motion s under the Federal Rules of Civil Procedure—and does so w ithin the time allowed by those rules—the time to file an appeal runs for all par ties from the entry of the orderdisposing of the last such remaining motion.” Rule 59(e) m otions are among the tolling mo tions listed in

9 Although In re Dixon-Ross held that a court has a ppellate “jurisdiction to review a timely appealed orderdisposing of an untimely motion for reconsideration,” 2016 WL 1056776, at *3 (internal quotation marks omitted), ther e is no indication that the notice of appeal in th at case was untimely and no ment ion of Rule 8002(b)(1)(B).20 Rule 4(a)(4)(A), see Fed. R. App. P. 4(a)(4 )(A)(iv), and those “m ust be filed no lat er than 28 days after the entry of the judgment,” Fed. R. Civ. P. 59(e). As an Advisory Committee’s note states, Rule 8002 “is an adaptation of [Appell ate] Rule 4(a),” and Rule 8002(b) “is essentially the same as [Appellate] Rule 4(a)( 4).” Fed. R. Bankr. P. 8002 advisory committee’s note. Similarly, Appellate Rule 6(b )(2)(A)(i) provides for tolling th e jurisdictional time limit to file a notice of appeal to a circuit court from a decision by a BAP or a district court exercising appella te jurisdiction in a bankruptc y case: 10 “If a timely motion for rehearing under Ba nkruptcy Rule 8022 is filed, the t ime to appeal for all parties runs from the entry of t he order disposing of the motio n.” Fed. R. App. P. 6(b)(2)(A)(i). Sim ilar to time limits found in Civil Rule 5 9(e) and Bankruptcy Rule 9023, Bankruptcy Rule 8022( a)(1) has a time limit (14 days ) for filing a motion for rehearing before a BAP or district court sitting in its app ellate capacity, and Rule 8022(a)(1) is anonjurisdictional cl aim-processing rule, see Tal v. Harth (In re Harth) , 619 F. App’x 719, 721 (10th Cir . 2015) (recognizing the BAP’s “authority to overlook the untimeliness of a [Ru le 8022] motion for rehearing on equitable grounds”). 11

10 This time limit is jurisdictional. See Taumoepeau v. Mfrs. & Traders Tr. Co. (In re Taumoepeau) , 523 F.3d 1213, 1216 & n.1 (10t h Cir. 2008) (jurisdictional timeliness requirement under § 21 07 and Appellate Rule 4(a)(1) is applicable to bankruptcy appeals to circuit c ourts by virtue of Appellate Rul e 6(b)(1) and Advisory Committee notes to Ba nkruptcy Rule 8001).

11 We cite unpublished decisions onl y for their persuasive value consistent with 10th Cir. R. 32.1(A).21 b. Case law Having established the relevantanalogue rules, we turn to case law interpreting them. We start with Browder v. Director, De partment of Corrections , where the Supreme Court held tha t an untimely post-judgment mot ion filed under either Civil Rule 52(b) or Rule 59 “could not toll the running of time to appeal under Rule 4(a)” and therefore the circ uit court “lacked jurisdiction to review the [underlying order granting habe as relief].” 434 U.S. 257, 265 (1978). Before the district court, the opposing party had obj ected on timeliness g rounds to the court’s consideration of the motion, but that fact appears to have play ed no role in the Supreme Court’s decision. Ins tead, the Court relied on what Bowles later confirmed—that § 2107(a)’s 30-da y time limit for filing a notic e of appeal in a civil case is “jurisdictional,” id. at 264 (internal quotati on marks omitted)—and on Rule 4(a)(4)(A)’s purpose, which i s “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed appl ication has been made; and if it has not, to advise pro spective appellees that they ar e freed of the appellant’s demands,” id. (internal quotation marks omitted). We next consider Chief Judge Sen telle’s dissenting opinion in Obaydullah v. Obama , 688 F.3d 784 (D.C. Cir. 2012) ( per curiam), and opinions from the First, Third, Fourth, Fifth, Seventh, and Eleventh Circuits, almost al l of which post-date
Bowles and follow Browder . These decisions further dev elop the rationale for the rule that untimely post-judgment motions cannot toll the period in which to file a22 notice of appeal even where an o pposing party does not object o n timeliness grounds or the district court disposes of the motion on the merits.
In Obaydullah , the government did not oppo se the district court’s consideration of an untimely Rule 59(e) motion, which the court granted. Were it not for the tolling effect of that m otion, Obaydullah’s notice of appeal would have been untimely to appeal the underlying judgment. In determining tha t the untimely motion tolled the appeal period, the m ajority relied on circuit preced ent to conclude that Rule 4(a)(4)(A)’s tolling provisi on for Rule 59(e) motions is a claim-processing rule,
id. at 789, and therefore “the . . . waiver of any timeliness obje ction” to an untimely Rule 59(e) motion permits a cour t to consider an appeal from th e underlying judgment, id. at 791. But in what we considera persuasive dissent, Chief J udge Sentelle argued that “ Bowles and Browder . . . should govern [the] case,” id. at 800, pointing out that Bowles (1) “clarified that Browder. . . is good law,” (2) “cited
Browder ’s treatment of time limits with approval,” and (3) “explained that [the Court’s] recent negative treatment of Robinson [12] and other cases, such as Browder , that relied on Robinson for the proposition that the t ime limit set fo r a notice of appeal is jurisdictional, was ‘dicta,’” id. at 799 (quoting Bowles , 551 U.S. at 210 n.2). Judge Sentelle also likened allo wing an untimely (and unobjecte d-to) Rule 59(e) motion to toll a jurisdictional appeal period to the “unique ci rcumstances” doctrine

12 United States v. Robinson , 361 U.S. 220 (1960).23 the Supreme Court jettisoned in Bowles

. See id. at 800 (internal quotation marks omitted). We also find the Third Circuit’s decision in Lizardo v. United States , 619 F.3d 273 (3d Cir. 2010), persuas ive and instructive. In Lizardo , the government failed to object to a Rule 59(e) motion as untimely, and the district cou rt denied it. The Third Circuit held that because Rule 59(e) is a claim-processing rule , the government had forfeited any timeliness objection it could have made in the di strict court, but it did not forfeit its objection for purposes of Rule 4(a)(4)(A). Rel ying primarily on
Browder , the court held that “[a]n untimely Rule 59(e) motion does not toll the time for filing an appeal under Rule 4 (a)(4)(A). This is true even if the party opposing the motion did not object to the moti on’s untimeliness and the dist rict court considered the motion on the merits.” Id. at 278. The court reasone d that “Rule 4’s main purpose is ‘to set a definite point of time when litigation sha ll be at an end,’” id. at 279 (quoting Browder , 434 U.S. at 264), and “[h] olding that an untimely Rule 59(e) motion is timely for purposes of Rule 4(a)(4)(A) by virtue of the opposing party’s failure to object to that untimeliness in the district court would accomplish the opposite result,” id. at 280. In reaching the conclusion that untimely post-judgment motions cannot toll the period for filing a notice of app eal, the Fifth and Seventh Cir cuits have followed,
inter alia , Browderand Lizardo

. See Overstreet v. Joint Facilities Mgmt., L.L.C. (In re Crescent Res., L.L.C.) , 496 F. App’x 421, 424 (5th Cir. 2012) (per curiam) (holding that an untimely Rule 59(e) motion “will not toll the notice of appeal period,24 even if the district court addr essed the late-filed motion on t he merits”); Blue v. Int’l Bhd. of Elec. Workers Local Union 159 , 676 F.3d 579, 582–85 (7th Cir. 2012) (concluding that, where opposing party had not objected to an i mpermissible extension of the deadline to file a post-trial motion, the dist rict court had jurisdiction to hear those motions but they “d id not toll the time [appellan t] had to file its Notice of Appeal”). And in decisions pre-dating Lizardo , the First and Fourth Circuits have followed Browder

. See Garcia-Velazquez v. Frito Lay Snacks Caribbean , 358 F.3d 6, 8–11 (1st Cir. 2004) (concluding that under Browder , an untimely Rule 59(e) motion did not toll the appeal per iod even though the district court had denied it on the merits); Panhorst v. United States , 241 F.3d 367, 369–70 (4 th Cir. 2001) (relying

on Browder to hold that “[a]n untimely Rule 59(e) motion does not defer the time for filing an appeal, which continues to run from the entry of the initial judgment order,” where district court had grante d motion to consider untimely Ru le 59(e) motion then denied that motion) . In another pre- Lizardo case, the Eleventh Circuit also reached the same conclusion, albeit without reliance on Browder

. See Green v. Drug Enf’t
Admin. , 606 F.3d 1296, 1302 (11th Ci r. 2010) (holding that “Appellate Rule 4(a)(4)(A) requires [post-ju dgment] motions be timely to t oll the period for filing a notice of appeal,” and explaining that “[a]lthough Kontrick and Eberhart suggest that a district court ha s jurisdiction to hear an out-o f-time Rule 59(e) motion if the non-moving party does notobject promptly enough (and th us forfeits his ability to object to timeliness later), n either case would turn an unti mely Rule 59(e) motion into a timely one” (footnote omitted)).25 Finally, we have applied Browder in a bankruptcy case with a procedural posture analogous to this case. In In re Harth , we concluded that an untimely motion for rehearing by the BAP filed under Bankruptcy Rule 8022, whic h the BAP denied on the merits after noting its un timeliness, did not toll the t ime limit to appeal to this court under Appellate Rule 6(b)(2 )(A)(i). In support, we relie d on Browder , explaining that although the BA P had “authority to overlook the untimeliness of a motion for rehearing on equ itable grounds, that is a separate matterfrom whether the BAP affects our appellate jurisdi ction by denying the untimely motion on the merits.” 619 F. App’x at 721 (emphasis a dded). We said that whether the appellant was “entitled to tolling of the appeal period is itself a jurisdict ional issue,” and under
Bowles , “courts have no authority to c reate equitable exceptions to j urisdictional requirements.” Id. (brackets and internal quotation marks omitted). “We therefore agree[d] with those circuits hol ding that a lower court’s discr etionary election to deny an untimely post-judgment mo tion on the merits (an equitab le action without jurisdictional import in that c ourt) does not re-invest that mo tion with a tolling effect for purposes of appella te jurisdiction.” Id. We consider In re Harth ’s application of
Browderin the bankruptcy contex t to be persuasive. The Second, Sixth, Ninth, and D.C . Circuits have concluded that an untimely post-judgment motion can toll th e appeal period under Appellate Rule 4(a)(4)(A).
See Demaree v. Pederson , 887 F.3d 870, 876 (9th Ci r. 2018) (per curiam); Weitzner v. Cynosure, Inc. , 802 F.3d 307, 312 (2d Cir. 2015); Obaydullah , 688 F.3d at 789; Nat’l Ecological Found. , 496 F.3d at 476. The Eighth Ci rcuit has implied as much.26 See Dill v. Gen. Am. Life Ins. Co. , 525 F.3d 612, 619 (8th Cir. 2008). However, we are more persuaded by the c ontrary view expressed in Browder , Chief Judge Sentelle’s dissent in Obaydullah , and the other circuit decisions cited above. Accordingly, we hold that an un timely Rule 9023 motion is ineff ective to toll the time to file a notice of a ppeal under 28 U.S.C. § 158(c)(2) and Bankruptcy Rule 8002(a) regardless of whether t he bankruptcy court disposes of the motion on the merits or whether an opposing pa rty raises in the bankruptcy co urt a timeliness objection to that court’s consider ation of the motion. In the latter situation, holding otherwise would allow an opposi ng party’s failure to raise a ti meliness objection to expand the jurisdictional appeal p eriod, and that would violate the tenet that “a court’s subject-matter jurisdic tion cannot be expanded to accou nt for the parties’ litigation conduct.” Kontrick , 540 U.S. at 456; see Bowles , 551 U.S. at 213 (explaining that where an “error is one of jurisdictional magni tude, [a litigant] cannot rely on forfeiture or waiver to excuse his lack o f compliance w ith [a] statute’s time limitations [for filing a notice of appeal]”). 3. BAP had authority to cons ider, sua sponte, Rule 9023 motion’s timeliness Mr. Robertson complains that the BAP should not have considered the timeliness of his Rule 9023 moti on sua sponte. But given our r eaffirmance that Rule 8002(a)(1)’s time limit is jurisdictional, we conclude tha t the BAP had authority to consider sua sponte whether Mr . Robertson’s Rule 9023 motion was timely filed for purposes of determining whet her the BAP had jurisdiction ov er his appeal. See27 Henderson , 562 U.S. at 434 (“[F]ederal cour ts have an independent obliga tion to ensure that they do not exceed t he scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties eith er overlook or e lect not to press.”) IV. Attorney fees Included with its appellate brief , the Bank summarily requests “attorneys’ fees on appeal pursuant to the final o rders and judgments made by th e Bankruptcy Court, the Utah State District Court a nd the Utah Court of Appeals bas ed upon the loan documents entered into between the Bank and [Mr.] Robertson.” Aplee. Resp. Br. at 53–54. The statute the Ba nk cites in support of its req uest authorizes a court to award attorney fees to the prev ailing party “in a civil action based upon any promissory note, written contr act, or other writing executed af ter April 28, 1986, when the provisions of the prom issory note, wr itten contract, o r other writing allow at least one party to recover attorney fees.” U tah Code Ann. § 78B-5-826. We deny the request without prej udice to the Bank filing a prop er motion that complies with applicab le procedural rules, i ncluding 10th Cir. R. 27 and 39.2, and that sets out more fully the lega l basis for an award for attor ney fees. At a minimum, any such motion should (1) iden tify the “promissory note[s], wr itten contract[s], or other writing[s] allow[ing] at l east one party to recover attor ney fees,” Utah Code Ann. § 78B-5-826; (2) discuss wh ether an appeal from a BAP deci sion regarding an adversary proceeding is “a civil action” within the meaning of § 78B-5-826 and, if so, whether excepting from discha rge a deficiency judgment in a n adversary28 proceeding means that the advers ary proceeding is “based upon” the relevant “promissory note, written c ontract, or other writing,” id. ; and (3) identify any other Utah statutory or case law bear ing on the Bank’s entitlement to attorney fees in this appeal, see, e.g. , Mgmt. Servs. Corp. v. Dev. Assocs. , 617 P.2d 406, 409 (Utah 1980) (holding “that a provision for pa yment of attorney’s fees in a contract includes attorney’s fees incurred by the prevailing party on appeal as w ell as at trial, if the action is brought to enforce the contract ” (emphasis added)).
V. Conclusion We affirm the BAP’s judgment di smissing Mr. Robertson’s appeal for lack of jurisdiction. We deny the Bank’s request for attorney fees on appeal without prejudice to the Bank filing a pr oper motion for attorney fees.

Entered for the Court

Jerome A. Holmes Circuit Judge