Elawyers Elawyers
Washington| Change

Elmira Wheatley v. Edward Cohn, 14-1862 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-1862 Visitors: 33
Filed: Mar. 05, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1862 ELMIRA WHEATLEY; BRETT LEWIS WHEATLEY, Plaintiffs – Appellants, v. EDWARD S. COHN; STEPHEN N. GOLDBERG; RICHARD E. SOLOMON; RICHARD J. ROGERS; RANDALL J. ROLLS; FLAGSTAR BANK; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, (MERS); ST. FIN CORP., d/b/a Star Financial, a California Corporation, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, I
More
                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1862


ELMIRA WHEATLEY; BRETT LEWIS WHEATLEY,

                Plaintiffs – Appellants,

          v.

EDWARD S. COHN; STEPHEN N. GOLDBERG; RICHARD E. SOLOMON;
RICHARD J. ROGERS; RANDALL J. ROLLS; FLAGSTAR BANK;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, (MERS); ST. FIN
CORP., d/b/a Star Financial, a California Corporation,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cv-03850-GLR)


Submitted:   February 19, 2015             Decided:   March 5, 2015


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Elmira Wheatley, Brett Lewis Wheatley, Appellants Pro Se.
Michael J. McKeefery, Richard J. Rogers, COHN, GOLDBERG &
DEUTSCH,   LLC,  Towson, Maryland;   Christine  Marie  Debevec,
STRADLEY RONON STEVENS & YOUNG LLP, Philadelphia, Pennsylvania;
John Alexander Nader, STRADLEY RONON STEVENS & YOUNG LLP,
Washington, D.C.; Michael Lichtenstein, Benjamin Powell Smith,
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, PA, Potomac, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

           Elmira       Wheatley         and         Brett      Lewis        Wheatley

(“Appellants”)       seek   to    appeal       the    district        court’s   order

dismissing    this    action     raising     numerous      claims     related   to    a

foreclosure action.         Appellees move to dismiss the appeal as

untimely, and the Wheatleys have replied to the motion.                              We

grant   Appellees’     motion     and    dismiss     the     appeal    for   lack    of

jurisdiction because the notice of appeal was not timely filed.

           “[T]he timely filing of a notice of appeal in a civil

case is a jurisdictional requirement.”                  Bowles v. Russell, 
551 U.S. 205
, 214 (2007).          Generally, a party has 30 days after the

entry of the district court’s final judgment or order to notice

an appeal.     See Fed. R. App. P. 4(a)(1)(A).                  The notice period

may be extended or reopened by the district court.                      See Fed. R.

App. P. 4(a)(5), (6).

           The   district        court       entered       an   order     dismissing

granting Appellees’ motion to dismiss on May 30, 2014; so the

notice period ended on June 30, 2014.                  Because Appellants filed

their notice of appeal of this order on July 25, 2014, their

notice of appeal was untimely.

           Additionally, the district court did not extend the

notice period and the district court could not have reopened the

notice period.       First, a district court may extend the notice

period if two requirements are satisfied: (1) the party seeking

                                         3
an extension moves for the extension “no later than 30 days”

after the close of the notice period and (2) “that party shows

excusable    neglect       or     good        cause.”         Fed.      R.     App.    P.

4(a)(5)(A)(i)–(ii).             Here,     Appellants         satisfied       the   first

requirement.      Their motion for an extension was due on July 30,

2014; and they filed this motion on July 23, 2014.                       However, the

district    court      determined        Appellants       did     not        demonstrate

excusable neglect or good cause for an extension. Appellants

have not appealed the district court’s denial of this motion, so

we   decline      to      review        the       district      court’s        decision.

Accordingly, the notice period was not extended.

            Second, we may construe an untimely notice of appeal

as a motion to reopen the time to notice an appeal if an excuse

for the untimeliness is offered.                  See United States v. Akinkoye,

16 F. App’x 179 (4th Cir. 2001) (per curiam).                    Regardless of any

excuse offered by Appellants, the district court could not have

reopened    the   notice    period.           The   notice    period     may    only   be

reopened    if    three    conditions         are    satisfied:      (1)     the   party

seeking to reopen the period did not receive notice “of the

entry of the judgment or order sought to be appealed within 21

days after entry”; (2) “the motion is filed within 180 days

after the judgment or order is entered or within 14 days after

the moving party receives notice . . . of the entry, whichever

is earlier”; and (3) “the court finds that no party would be

                                              4
prejudiced.”     Fed. R. App. P. 4(a)(6)(A)–(C).            It is clear that

Appellants cannot satisfy the second condition.

          At     the    latest,   Appellants     received     notice    of    the

district court’s order on June 24, 2014 -- the date on the

certificate    of      service    accompanying     their     motion     seeking

clarification of the order, which indicates Appellants’ receipt

of the order.        So at the latest, Appellants were required to

move to reopen by July 8, 2014.            Neither their motion nor their

untimely notice were filed before this deadline.                 Accordingly,

the district court could not have reopened the notice period.

       Because      Appellants    failed    to   file   a   timely   notice    of

appeal or to obtain an extension or reopening of the appeal

period, we dismiss the appeal.             We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.



                                                                       DISMISSED




                                      5

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer