KONCAK v. DEUTSCHE BANK NATIONAL TRUST

Civil No. 3:16-CV-1507-L-BK.

JAMES D. KONCAK and JUDI K. KONCAK, Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST and OCWEN LOAN SERVICING, LLC, Defendants.

United States District Court, N.D. Texas, Dallas Division.

Editors Note
Applicable Law: 28 U.S.C. § 1332
Cause: 28 U.S.C. § 1332 Diversity - Breach of Contract
Nature of Suit: 190 Contract: Other Contract
Source: PACER


Attorney(s) appearing for the Case

James D. Koncak, Plaintiff, Pro Se.

Judi K. Koncak, Plaintiff, Pro Se.

Deutsche Bank National Trust, Defendant, represented by J. Garth Fennegan , SettlePou & Charles Royal Curran , SettlePou.

Ocwen Loan Servicing LLC, Defendant, represented by J. Garth Fennegan , SettlePou & Charles Royal Curran , SettlePou.


FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

RENEE HARRIS TOLIVER, Magistrate Judge.

Pursuant to District Judge Lindsay's Order of Reference, Doc. 29, the Court now considers Plaintiffs' Motion for Extension of Time to File Plaintiffs' Notice of Appeal, Doc. 26. For the reasons that follow, the motion should be GRANTED.

A. Background

Final judgment was entered in this case on February 8, 2017. Doc. 25. Accordingly, Plaintiffs had until March 10, 2017 to file their notice of appeal. FED. R. APP. P. 4(a)(1). On March 16, 2017, Plaintiffs filed the instant motion, arguing that they can show excusable neglect for not timely filing their notice of appeal. Doc. 26 at 2. In particular, they claim that they inadvertently failed to timely file their notice of appeal because they (1) misinterpreted Rule 4(a) in calculating the 30-day deadline; (2) were unaware that they could move for an extension of the deadline; (3) relied on non-professional advice in regard to the deadline; and (4) are struggling with their business operations. Doc. 26 at 3.

Defendants oppose Plaintiffs' request, first because Plaintiffs failed to confer with them before filing the motion. Doc. 27 at 1-2. On the merits, they argue that the Court should deny Plaintiffs' motion because they have not adequately demonstrated excusable neglect. Doc. 27 at 2-4.

B. Applicable Law

A notice of appeal in a civil case must be filed with the district clerk "within 30 days after entry of the judgment or order appealed from." FED. R. APP. P. 4(a)(1)(A). However, a district court may extend the time for filing a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

FED. R. APP. P. 4(a)(5)(A). The Rules of Procedure further provide that "[n]o extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later." FED. R. APP. P. 4(a)(5)(C).

In determining whether a party has made a showing sufficient to warrant an extension of time, the Court considers "(1) the possibility of prejudice to the other parties, (2) the length of the applicant's delay and its impact on the proceeding, (3) the reason for the delay and whether it was within the control of the movant, and (4) whether the movant has acted in good faith." Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012) (internal quotation marks omitted).

C. Analysis

Plaintiffs filed the instant motion six days after the 30-day time period prescribed by Rule 4(a) had expired. Accordingly, they are eligible for an extension under Rule 4(a)(5)(A). Considering the factors Plaintiffs described, coupled with the short delay in their filing the motion for an extension, the Court finds that Plaintiffs have sufficiently demonstrated excusable neglect. Salts, 676 F.3d at 474; see also Davis v. Valdez, No. 12-CV-2013-L at Doc. 67 & Doc. 71 (granting motion for an extension of time to file a notice of appeal where the movant had been transferred to a different prison prior to the entry of judgment and the delay in filing was seven days); United States v. McLemore, 12-CR-00427-L at Doc. 769 (granting motion for an extension of time where the movant did not understand the technical requirements for filing a notice of appeal). The Court further finds no indication that Defendants would be prejudiced if the motion is granted. Salts, 676 F.3d at 474. Finally, it does not appear that Plaintiffs have acted in bad faith. Id. Thus, Plaintiffs should be granted an extension of time to file their notice of appeal.

D. Conclusion

For the foregoing reasons, Plaintiffs' Motion for Extension of Time to File Plaintiffs' Notice of Appeal, Doc. 26, should be GRANTED.

SO RECOMMENDED.


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