United States District Court, D. New Mexico
In re THE VAUGHAN COMPANY, REALTORS, Debtor. DAVID LANKFORD and LEE ANN LANKFORD, Appellants,
JUDITH A. WAGNER, Chapter 11 Trustee of the Bankruptcy Estate of the Vaughan Company Realtors, Appellee. No. 1:18-cv-00037 WJ/KRS
MEMORANDUM OPINION AND ORDER DISMISSING APPEAL AS
UNTIMELY AND DENYING MOTION TO VACATE INJUNCTION
MATTER comes before the Court on an Order to Show Cause Why
Appeal Should Not be Dismissed as Untimely, filed January 23,
2018 (Doc. 8). On January 29, 2018,
Appellants filed a Response to the Order to Show Cause and to
Void Injunction (Doc. 10). Appellees filed a
Reply in Opposition to Appellants' response on January
31, 2018 (Doc. 11).
Appellants appealed to this Court the bankruptcy court's
Memorandum Opinion and Order Denying Motion to Vacate Void
Judgments per Rule 60(b)(4). The bankruptcy court entered
this appealed MOO on December 12, 2017. Appellants filed a
Notice of Appeal in bankruptcy court on January 4, 2018. The
Court issued the Order to Show Cause, because it appeared
that the Notice of Appeal was untimely, as it was filed more
than fourteen days after the appealed MOO was issued. The
Order to Show Cause required the Appellants to give an
explanation why this appeal should not be dismissed as
District Court has “jurisdiction to hear appeals from
… final judgments, orders, and decrees” of the
Bankruptcy Court. 28 U.S.C. § 158(a)(1). The appellate
process functions in essentially the “same manner as
[civil] appeals ... are taken to the courts of appeals from
the district courts.” 28 U.S.C. § 158(c)(2).
However, the procedures and “time limits that govern
such an appeal are … set forth in the Bankruptcy
Rules” rather than the Federal Rules of Appellate
Procedure. In re Latture, 605 F.3d 830, 838 (10th
Cir. 2010). See also Fed. R. Bankr. P. 8001(a)
(“These … rules govern the procedure in a United
States District Court … on appeal from a judgment,
order or decree of a bankruptcy court.”).
the notice of appeal was filed in bankruptcy court more than
fourteen days after entry of the MOO, the notice of appeal
was untimely. See Fed. R. Bankr. P. 8001(a) and
8002(a); see also Fed. R. Bankr. P. 9006(a)(1) (if
filing deadline ends on a holiday or weekend, time is
extended to the next business day). An untimely notice of
appeal deprives this Court of jurisdiction to hear the
appeal. See In re Latture, 605 F.3d 830, 833 (10th
Cir. 2010); Hatch Jabobs, LLC v. Kingsley Capital, Inc.
(In re Kingsley Capital, Inc.), 423 B.R. 344, 351 (10th
Cir. BAP 2010).
their response, the Appellants did not demonstrate grounds
for tolling or otherwise disagree with the Court's
proposed timeline. Appellants' sole argument is that the
Notice of Appeal was timely, because there is no deadline to
file an appeal of an order denying a motion to vacate
judgment under Rule 60(b)(4). The Court disagrees. The plain
language of Fed.R.Bankr.P. 8002(a) provides: “…
a notice of appeal must be filed with the bankruptcy clerk
within 14 days after entry of the judgment, order, or decree
being appealed.” Appellants have provided no reason
based in law why the appeal deadline should not apply to an
appeal of an order denying a Rule 60(b)(4) motion. See,
e.g., White v. McKinna, 510 Fed.Appx. 684, 684-85 n.1
(10th Cir. 2013) (Tenth Circuit issued order to show cause
why appeal of order denying Rule 60(b)(4) motion should not
be dismissed as untimely); Kansas City S. Ry. Co. v.
Great Lakes Carbon Corp., 595 F.2d 431, 433 (8th Cir.
1979) (applying appeal filing deadlines in Fed. R. App. P.
4(a) to appeal of Rule 60(b)(4) motion).
pro se pleadings are construed more liberally than pleadings
filed by attorneys, “pro se parties [must] follow the
same rules of procedure that govern other litigants.”
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994). Moreover, an appellate court is not obligated to
search the record or argue for pro se litigants. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (“the court cannot take on
the responsibility of serving as the litigant's attorney
in constructing arguments and searching the record”).
Here, the Appellants did not come forward with any other
grounds why the appeal is in fact timely or why the appeal
period should be tolled.
Appellants also ask the court to vacate the injunction
entered in David Lankford and Lee Ann Lankford v. United
States Department of Justice, 1:17-cv-00668 WJ/GBW, Doc.
24. The Court denies Appellants' request. Appellants do
not raise any arguments that were not already raised in the
Lankfords' Objections to the Court's Order to Show
Cause Why File Restrictions Should Not be Imposed, and
overruled by the Court.
the notice of appeal was untimely, the Court dismisses this
appeal for lack of jurisdiction.
IS THEREFORE ORDERED that this appeal is
DISMISSED for lack of appellate jurisdiction
on the ground that it was untimely filed.
IS FURTHER ORDERED that Appellants' request to
vacate the permanent injunction imposing filing restrictions
 Appellants included in their response
to the Order to Show Cause a three sentence argument that the
undersigned should recuse pursuant to 28 U.S.C. §
455(a), because a ruling against Appellants in another case
was allegedly not based on the evidence presented. Appellants
argue that this prior ruling creates the appearance of bias.
The Court disagrees. Any argument about whether the Court