Steven Conway v. Richard Heyl, 609 B.R. 194

Background

Appellants (Steve Conway, Lori Conway, LorCon #1 and #4) sued to declare certain debts nondischargeable; the district court referred the matter to the bankruptcy court. Defendants moved to dismiss and for sanctions.
A dismissal hearing was continued from Dec. 4, 2018 to Dec. 18, 2018; on Dec. 17 the bankruptcy court cancelled the Dec. 18 hearing, granted the motion to dismiss, and denied sanctions. Counsel (Fondren) moved to withdraw on Dec. 17 and formally had his withdrawal granted Jan. 9, 2019.
On Dec. 28, 2018 appellants (purporting to act pro se) filed a motion for an extension of time to file a motion to reconsider/rehear and to seek new counsel; the bankruptcy court denied that motion on Jan. 9, 2019.
New counsel filed a Rule 59 motion Jan. 15, 2019, which the bankruptcy court denied as untimely; appellants filed a Jan. 22, 2019 motion to (a) declare their right to appeal and (b) extend the 14-day appeal period under Fed. R. Bankr. P. 8002(d)(1)(B) for excusable neglect and also filed a notice of appeal.
The bankruptcy court denied the Jan. 22 motions on Feb. 1, 2019; appellants appealed those orders. The BAP consolidated the appeals and reviewed whether the denial of extensions and the dismissal were proper and whether any appeal was timely.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellants showed "excusable neglect" to extend the 14-day appeal period under Fed. R. Bankr. P. 8002(d)(1)(B)	Counsel withdrawal, personal hardships (illness of Conway's mother), holiday season, busy with other appeals — filed motion within the 21-day grace period	Counsel remained counsel of record until court-authorized withdrawal; appellants had time and filed other motions; firing counsel is dilatory tactic; no sufficient excuse	Affirmed: appellants failed to demonstrate excusable neglect; extension denied
Whether the Dec. 28 motion should be treated as a Rule 59 motion (tolling the appeal period under Rule 8002(b)(1)) or as an alternative motion to extend time to appeal	Pro se filing should be liberally construed as Rule 59/new-trial motion or as motion to extend time to appeal	The Dec. 28 motion explicitly sought time to file rehearing/reconsideration and to seek counsel and did not reference notice or appeal; court need not divine alternative intents	Affirmed: Dec. 28 motion did not qualify under Rule 8002(b)(1) and did not toll appeal time
Whether appellants were entitled to pro se liberal construction because they had terminated counsel before the appeal deadline	Appellants say they effectively acted pro se after terminating Fondren on Nov. 16	Local rule and docket show counsel remained counsel of record until court-authorized withdrawal; pro se leniency not warranted for experienced litigant	Affirmed: counsel was counsel of record until withdrawal granted; no special pro se treatment
Whether the bankruptcy court abused discretion by ruling without a hearing on the extension/tolling motions	Appellants contended a hearing was required or appropriate	Fed. R. Bankr. P. 9006 does not require a hearing for motions to enlarge/extend time; court may decide on the record	Affirmed: no abuse of discretion; hearing not required

Key Cases Cited

Bowles v. Russell, 551 U.S. 205 (Supreme Court) (timely filing of appeals is mandatory and jurisdictional)
Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380 (Supreme Court) (test for "excusable neglect")
Lowry v. McDonnell Douglas Corp., 211 F.3d 457 (8th Cir.) (excuse for late filing bears greatest weight among Pioneer factors)
United States v. Stute Co., 402 F.3d 820 (8th Cir.) (timeliness of notice of appeal is jurisdictional)
Dial Nat’l Bank v. Van Houweling (In re Van Houweling), 258 B.R. 173 (B.A.P. 8th Cir.) (applying Pioneer to bankruptcy time extensions)
McNeil v. United States, 508 U.S. 106 (Supreme Court) (pro se status does not excuse procedural rule compliance)
Nyffeler Const., Inc. v. Sec’y of Labor, 760 F.3d 837 (8th Cir.) (statutory and rule-based appellate-timing constraints are rigid)