United States District Court, W.D. Oklahoma
HEATON CHIEF U.S. DISTRICT JUDGE.
Khrishna Kumar Agrawal filed this appeal from the bankruptcy
court's order granting relief pursuant to § 303 of
the Bankruptcy Code. Four entities claiming to be creditors
of Mr. Agrawal had filed an involuntary petition in April
2016. Mr. Agrawal moved to dismiss the petition on the basis
that the petition was filed in bad faith and that a bona fide
dispute existed as to petitioning creditors' debts. The
bankruptcy court denied that motion, concluding that the
involuntary petition was facially sufficient and that Mr.
Agrawal's arguments did not warrant dismissal at that
stage. He then answered, raising again the issue of whether
petitioners were qualifying creditors holding claims which
were “not contingent as to liability or the subject of
a bona fide dispute as to liability or amount
….” See 11 U.S.C. § 303(b)(1). The
petitioners' claims were based on state court judgments,
and the bankruptcy court proceeded to consider whether the
judgments met the § 303(b)(1) standard.
court directed the parties to submit summaries of the state
court proceedings resulting in the judgments and to submit
briefs in support of their respective positions. On November
1, 2016, the court entered an order directed to the nature of
the petitioning creditors' claims, addressing the fact
that the particular claims at issue were state court
judgments [Doc. #4-17]. It concluded that three of the four
state court judgments qualified as non-default judgments
which were either unappealed or appealed but
unstayed. Based on that determination, and applying
what it viewed as the majority rule, the court concluded that
the three judgments were not “the subject of a bona
fide dispute as to liability” and hence were a proper
basis for the involuntary petition.
thereafter, the court conducted an evidentiary hearing
directed to the further question of whether the debtor was
paying his debts as they became due. See 11 U.S.C.
§ 303(h)(1). During that hearing, Mr. Agrawal sought to
offer evidence directed to the underlying validity of the
state court judgments, which the court excluded. He also
sought the recusal of the bankruptcy judge, which was denied.
On December 13, 2016, the court entered its order finding
that Mr. Agrawal was not paying his debts as they became due
and, incorporating the legal conclusions addressed in the
November 1 order, granted the order for relief based on the
Agrawal commenced this appeal on January 11, 2017. His
various arguments are all to the effect that he was entitled,
through offers of proof or otherwise, to challenge in the
bankruptcy court the underlying validity of the state court
judgments and that, because he was attempting to do so, a
bond fide dispute exists as to them. The petitioning
creditors, appellees here, argue that Mr. Agrawal's
appeal was not timely and that the bankruptcy court's
order was correct on the merits.
court concludes it is unnecessary to address the substantive
merit of the bankruptcy court's decision, as Mr.
Agrawal's appeal is plainly untimely. The general rule is
that appeals from a judgment, order or decree in bankruptcy
“must be filed with the bankruptcy clerk within 14 days
after entry of the judgment, order, or decree being
appealed.” Fed.R.Bankr.P. 8002(a)(1). This rule
“is strictly construed and requires strict
compliance.” In re Herwit, 970 F.2d 709, 710
(10th Cir. 1992). Failing to file a timely notice of appeal
creates a “jurisdictional defect barring appellate
review.” Id. Here, the final order being
appealed was the order granting relief on December 13, 2016.
Agrawal's notice of appeal was filed January 11, 2017,
clearly past the 14-day filing deadline.
general rule of fourteen days to appeal is subject to certain
exceptions. Mr. Agrawal attempts to rely on the exception
stated in Fed.R.Bankr.P. 8002(b), which potentially extends
the appeal time if one of four types of motions is filed by a
party in the meantime. Specifically, he asserts that his
motion to lift automatic stay filed November 10, 2016, was
actually a motion for “additional findings under Rule
7052” or a motion to reconsider. However, a fair
reading of the motion supports neither assertion. He plainly
was not seeking additional findings from the bankruptcy court
and his motion never mentioned Rule 7052. Rather, he was
seeking relief from the automatic stay so that he could
pursue his fraud and other theories in the state courts which
rendered the various judgments. Similarly, the motion cannot
plausibly be read as seeking to alter or amend a judgment, or
for new trial. It did not ask for that relief and, in any
event, the November 1 order was not a final order within the
reach of those provisions.
Agrawal failed to file a timely notice of appeal and has not
stated any valid basis for tolling or extending the appeal
time. This court is therefore without jurisdiction to hear
this appeal. The appeal is DISMISSED.
IS SO ORDERED.
 Debtor did not challenge the fact of
the judgments or their status (i.e. appealed or not; stayed
or not.) Rather, he challenged the underlying validity of the
judgments, claiming they were the ...