UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES & KATHRYN SUNDE, 

Plaintiffs,

v.

WELLS FARGO HOME MORTGAGE,

Defendant.

 /

Case No. 09-12179

Honorable Nancy G. Edmunds

ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO APPEAL AND DENYING

AS MOOT PLAINTIFFS’ MOTION FOR STAY PENDING APPEAL [1]

This matter is before the Court on Plaintiffs’ motion for leave to appeal the Bankruptcy

Court’s March 26, 2009 Order Granting Relief from the Automatic Stay and Waiving the

Provision of FRBP 4001(a)(3) and Plaintiffs’ motion for a stay pending appeal. The Court

finds that the decision process would not be aided by oral argument. For this reason,

pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), Plaintiffs’ motions will be

decided without oral argument. 

An appeal from an order of a bankruptcy judge to a district court shall be taken “by

filing a notice of appeal within the time allowed by [Federal Rule of Bankruptcy Procedure]

Rule 8002.” Fed. R. Bank. P. 8001; see also 28 U.S.C. § 158(a). Pursuant to Federal Rule

of Bankruptcy Procedure 8002(a), “[t]he notice of appeal shall be filed with the clerk within

ten days of the date of the entry of the judgment, order, or decree appealed from.” Fed.

R. Bankr. P. 8002(a). In this case, Plaintiffs did not file a notice of appeal or motion for

leave to appeal until June 1, 2009, more than two months after entry of the March 26 order

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being appealed, and well beyond the ten-day period required by Rule 8002.

That Plaintiffs filed a motion to amend the March 26 order on May 26, 2009 does not

change the fact that Plaintiffs’ filing of the notice of appeal was untimely. When a party files

a timely motion to amend, “the time for appeal for all parties runs from the entry of the order

disposing of the last such motion outstanding.” Fed. R. Bankr. P. 8002(b). But, as the

Bankruptcy Court indicated in its May 27, 2009 Order Denying Debtors’ Motion to Amend

Judgment Approving Relief From Automatic Stay, pursuant to Local Bankruptcy Rule 9024-

1 (E.D. Mich.), a motion for reconsideration must be filed within ten days after entry of the

order to which it objects. Plaintiffs’ untimely motion to amend did not alter the ten-day

period for filing a notice of appeal. 

Because Plaintiffs’ notice of appeal and motion for leave to appeal are untimely, this

Court lacks jurisdiction to review the bankruptcy court’s order. See, e.g., Kasunic v.

Kingsmen Enterprises, No. 95-4044, 1996 WL 193805, *1 (6th Cir. Apr. 19, 1996). For this

reason, Plaintiffs’ motion for leave to appeal is DENIED. In light of this Court’s denial of the

motion for leave to appeal, Plaintiffs’ motion for a stay pending appeal is DENIED as moot.

It is hereby ordered that Plaintiffs' motion for leave to appeal is DENIED. It is further

ordered that Plaintiffs’ motion for a stay pending appeal is DENIED AS MOOT. 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: August 7, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

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on August 7, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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