# FILED
MAR 29 2021
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 

### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: ANNA CHABROWSKI , Debtor

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MEMORAN DUM ∗ ANNA CHABROWSKI , Appellant , v. BA NK OF NEW YORK MELLON , f/k/a Bank of New York , Appellee

. Appeal from the United States Bankruptc y Court for the District of Arizona Madeline Carmel Wanslee , Bankruptcy Judge, Presiding

Before: LAFFER TY, BRAND , and TAYLOR , Bankruptcy Judges.

I NTR OD UCT ION Chapter 13 1 d ebtor Anna Chabrowski appeals the bankruptcy court ’ s order dismissing without prejudice her adversary proceeding against Bank

∗ Th is disposition is not appropriat e for publication. Although it m ay be cit ed for whatever per s uasi ve value it may have, see Fed. R. App

. P. 32.1, it has no p recedential2 of New York Mellon ( “ BONY M ” ) 2 after her repeated fail ures to effect
service in accord ance with Rule 7004 with in the time prescribed by Civil Rule 4(m), applicable in bankruptc y via Rule 7004

. Although the parties did no t raise the issue of finali ty, we have an independent duty to determin e our own jurisdiction

. Because the order on appeal is interlocutory , we DIS MIS S

. FACTS 3
D ebtor filed a ch apt er 1 3 peti ti on in January 20 19

. On August 7, 2019, she filed an adversary complaint against BONY M ob jecting t o BONY M ’ s proof of claim and requesting a determination of the validity of BONY M ’ s lien on her real prope rty

. Deb tor made several attempt s to effect service on BONYM , none of which complied with Rule 7004

. She twice attempted personal service on the law firm tha t had filed a notice of appearance in the adversary

v al ue, see 9th Cir. BAP R u le 8024

- 1.

1 Unles s s pecified other w ise, a ll chapte r and sec ti on references are to the Bankrup tc y Code, 1 1 U.S.C. §§ 101

– 1532, all “ Rul e” references are t o the Federal Rul es of Bankruptcy Procedur e , and all “ Civil Rule ” reference s are to the Federal Rule s of Civil Pro cedure

. 2 T he real pa rty in inter est is “ The Ban k of New Y ork M ellon fka The Bank of New York, as Trustee for the Certif ica teholders CWALT , Inc ., A lternativ e Loan Trust 2006

- 20CB Mortgage Pass

- Through Certificates, Seri es 2006

- 20CB

. ”
3 Debtor did not provide complete excer pts of the record

. Accordingly, we ha ve exercised our discretion to take judicial notice of the docket s an d imaged papers file d in Debtor ’ s bankruptcy case and the rel ated adversary proceeding

. See Atwo od v. Chase Manhattan Mortg. Co. (In re Atwood) , 293 B.R. 22 7, 233 n. 9 (9th Cir. BAP 2003). Debtor improperly included in her excerpts documents that were no t b efore the bankruptcy
cou rt ; we ha ve not relied on any of th o se documents in disposing of th is ap peal.3 proceeding , but th at notice did not state that the firm wa s authori zed to
receive service o f process on BONYM ’ s behalf

. After t he bankruptcy court informed Debtor that such service was not effective, Deb tor hired a process

server , wh o attempted personal service on BO NYM at its New York City headquarters . T he c ert ificate o f service stated that the summons and complaint were served on an un named mail clerk. In the meantime, a fter four months had passed without effective se rvice, BONYM moved to dismiss the adversary proceeding under Civil Rule 4(m)

. After a status he aring at which the bankruptcy court explained to Debtor why her previous attempts at service were ineffective, the court gave Debtor one last chance to effect se rvice. But Debtor did not do so. Deb tor again used the same process serv er to ser ve BONYM

. Thi s time, t he c e rtificate of service showed that the summons and complaint

were serve d on “ Albert Cruz, Mail Cler k Manager ” at BONYM ’ s corporate headquarters wit hout inclu d ing any basis for the process server ’ s de claration that the person served was autho riz ed by BON YM to accep t service on its behalf. The bankruptcy court thus dismissed th e adversary
proce eding without prejudice. Debtor timely appealed. JURIS D ICTION The bankru ptcy court h ad jur isdictio n un de r 28 U.S.C. §§ 13 34 and
157 (b)(2)( K ). But as will be discusse d, we lack jurisdiction over this appeal. Although no party raised the issue of finality, we have an independ ent duty to consider our own ju risdiction. Di cker v. D ye ( In re4 Edelman ) , 237 B.R. 146, 150 ( 9 th Cir . BAP 1999)

. “ We have appellate jur isd ic tion ov er ‘ final judgments, orders, and decrees ’ of bankrupt cy judges pursuant to 28 U.S.C. § 158(a)(1). In contrast, we [generally ] lack appellate jurisdiction over interlocutory orders and decrees of bankruptcy judges

. . . unless we first grant lea ve to appe al under § 158(a)(3). ” Belli v. Temkin (I n re Belli ) , 2 68 B.R. 85 1, 85 4 ( 9th Cir. BAP 2001)

. Ordinarily, a n order d ismissing a complaint without prejudice is interlocutory

. Barn e s v. Belice (In re Belice) , 461 B.R. 564, 571

- 72 (9th Cir. BAP 2011)

. T he re are circumstances where such an order may be treated as final

. For example, the order may be treated as final when th e statute of limitations on the underlying claim has run , thus precluding t he plaint iff from refiling

. Domingo v. Port ugues

- S antana (I n re Domingo ) , No. NV

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– 11 35

– BHTa , 2017 WL 6601773, at *6 ( 9 th Cir

. BAP Dec. 26, 2017)

. The order may also be treated as final if the bankruptcy cou r t has “ clearly manifested its intent that the dismissal order be its final act in th e matter

. ” In re Be li c e , 461 B.R. at 571 n.6 (cit at ions om itted)

. See also Sterling

- Pac

. Lending, Inc. v. Moser (In re Mos er) , 613 B. R. 721 , 726 ( 9 th Cir. BAP 2020) ( tr eating order dismissing adversary proceeding without pr ejudice as final where dismissal co nclusively denied pl aintiff ’ s requested reli ef and en ded the bankruptcy court litigation , and the court stat ed that dismissal was without
pr ejudice to the plaintiff p ursuing his claims in state court)

. Here, there is not hing in the record to indicate that the bankruptcy

co urt intended the di smis sal to preclu de Debtor from re

- filing the5 adversa ry proceeding. At oral argu ment, BONYM ’ s counsel s tated that the
statute of l imitations had not run on De b tor ’ s claims. Accordingly, the re is no basis for treating the order as final

. We also have discretion to tr eat a n otice of appeal as a motion for leave to file an interl ocutory appeal. I n re Belice , 461 B.R. at 572. Leave to appeal is appropriate when the order involves a controlling question of law where there is substantial ground fo r difference of opinion , a nd a n i mmediate appeal may materially advance the ultimate termination of the litigation. Id

. ; I n re Belli , 2 68 B. R. at 858

. These factors are not satisfied here

. The adversary proceeding was dismissed on purely procedu ral grou nds , and there is no legal qu estion involving a substantial ground for difference of opinion

. And a n immediate appeal would not advance the ter mination of the liti gation , as the merits of Debtor ’ s claims still need to be adjudicated

. Therefore, we will not gr ant leave to appeal

. CON C LUSION
B e cause the order on appeal is interlocutory, and we will not gr ant leave to appeal, we lack jurisdiction

. Accordingly, t his appeal is
D ISMI SSED

.