Ozenne v. Chase Manhattan Bank (In re Ozene)

Debtor who failed to appeal within the 14-day bankruptcy appeal deadline from an order denying his third motion to reconsider denial of motion for sanctions for violation of the automatic stay, could not cure the untimeliness of the appeal by use of a petition for writ of mandate.  A petition for writ of mandate cannot serve as a substitute for a timely appeal.  Here, Ozenne failed to appeal within the 14-day bankruptcy appeal deadline from an order denying his third motion to reconsider denial of his motion for sanctions for violation of the automatic stay.  He then filed a mandate petition in the BAP seeking an order directing the bankruptcy court to grant the hearing that his motion to reconsider had sought.  Held, the BAP lacked jurisdiction to consider the mandate petition since the appeal time had run.  Also, since Ozenne had a right to an ordinary appeal, he could not satisfy the Baumann factors governing issuance of mandate in the 9th Circuit.

Ninth Circuit Court of Appeals (en banc) (Smith, N.R.); November 9, 2016; 2016 WL 6608963

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