1 Appellant filed a Motion for Leave to Proceed In Forma Pauperis with the

bankruptcy court on April 8, 2010 (“IFP Application”). On May 3, 2010,

(continued...)

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE ANTHONY DONALD

PLESCIA, formerly doing business as

Plescia Enterprises, LLC, Louis Curtiss

Studios, LLC, and Studio Restaurant,

LLC, and SHARISE RENE PLESCIA,

Debtors.

BAP No. KS-10-021

LAWRENCE GOLDBLATT,

Appellant,

Bankr. No. 08-23006

 Chapter 7

v. ORDER OF DISMISSAL

ANTHONY DONALD PLESCIA,

SHARISE RENE PLESCIA, and ERIC

C. RAJALA, Trustee,

Appellees.

May 10, 2010

Before MICHAEL, RASURE, and ROMERO, Bankruptcy Judges.

This appeal is from the Order Denying Motion to Dismiss, entered by the

Bankruptcy Court for the District of Kansas on March 3, 2010 (the “March 3

Order”). The pro se Appellant, Lawrence Goldblatt, filed his Notice of Appeal on

April 5, 2010. 

On April 12, 2010, this Court entered a Notice of Deficiency and Order to

Show Cause Why Appeal Should Not Be Considered For Dismissal as untimely,

interlocutory, and for failure to pay to the bankruptcy court the filing and

docketing fees1

 (“OSC”). Appellant’s response to the OSC was due April 26,

BAP Appeal No. 10-21 Docket No. 19 Filed: 05/10/2010 Page: 1 of 3
1 (...continued)

Appellant advised this Court that his IFP Application was still pending.

2 Although Appellant’s memorandum was untimely, we will nevertheless

consider his argument. 

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2010.

On April 26, 2010, Appellant filed a “Motion for Leave to File Amended

Notice of Appeal to Bankruptcy Appellate Panel [28 U.S.C.S. 158(b); Bankruptcy

Rule 8003]” (the “Motion”). No response has been filed to the Motion by any of

the Appellees. It appears that in the Motion, Appellant seeks leave to appeal the

March 3 Order as an interlocutory order, in response to the OSC why the appeal

should not be dismissed as interlocutory.

On May 5, 2010, Appellant filed a “Memorandum of Law on Timeliness.”2

In it he argues that although his Notice of Appeal was not filed until April 5,

2010, he mailed it on April 3, 2010. Appellant asserts, without authority, that he

had thirty days in which to appeal the March 3 Order, and that Bankruptcy Rule

9006(f) granted him a three-day extension after mailing. Thus, he argues, the

Notice of Appeal filed within thirty-three days after the March 3 Order was

timely. Bankruptcy Rule 8002(a), however, mandates that a notice of appeal be

filed (not mailed) within 14 days of the entry of the order appealed. Accordingly,

Appellant should have filed his Notice of Appeal no later than March 17, 2010. 

Appellant’s failure to timely file the Notice of Appeal is a “jurisdictional

defect barring appellate review.” In re Herwit, 970 F.2d 709, 710 (10th Cir.

1992). See also In re Furst, 206 B.R. 979, 980 (10th Cir. BAP 1997). Because

this appeal must be dismissed as untimely, we need not consider whether the

order appealed is interlocutory, and if so, whether to grant Appellant leave to

appeal an interlocutory order. Thus, the Motion should be denied as moot.

Accordingly, it is HEREBY ORDERED that:

(1) This appeal is DISMISSED.

BAP Appeal No. 10-21 Docket No. 19 Filed: 05/10/2010 Page: 2 of 3
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(2) The Motion is DENIED AS MOOT.

For the Panel:

Barbara A. Schermerhorn, Clerk of Court

By:

Deputy Clerk

BAP Appeal No. 10-21 Docket No. 19 Filed: 05/10/2010 Page: 3 of 3