In Re Ben Allustiarte & Linda Allustiarte, Debtors. Gregory R. Allustiarte, Allustiarte Bros. (A P'ship) v. Dennis M. Hauser, 848 F.2d 116 (9th Cir. 1988). · Go Syfert
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In Re Ben Allustiarte & Linda Allustiarte, Debtors. Gregory R. Allustiarte, Allustiarte Bros. (A P'ship) v. Dennis M. Hauser, 848 F.2d 116 (9th Cir. 1988). Cases Citing This Book View Copy Cite
13 citation events across 7 distinct courts.
Strongest positive: In re Hurt (ca9, 1992-09-18)
Top citers, strongest first. 12 distinct citers. How cited ↗
cited Cited as authority (rule) In re Hurt
9th Cir. · 1992 · confidence medium
Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir.1988) (quoting Greene v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986)).
discussed Cited as authority (rule) Bruce A. Seymour v. Raymond Carey, Trustee Land Resource Development Corp.
9th Cir. · 1992 · confidence medium
Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir.1988) (quoting Green v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986)). 4 Here, the 10-day period began on June 29, 1990 when the bankruptcy court's order was entered.
cited Cited as authority (rule) In Re James Miller, Jr. In Re Pamala F. Miller, Debtors. James Miller, Jr. Pamala F. Miller v. Lincoln Title Company United States Trustee
9th Cir. · 1992 · confidence medium
Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir.1988). 4 Here, the 10-day period began on May 15, 1987 when the bankruptcy court's order was entered.
discussed Cited as authority (rule) In Re Jewell A. Francis, Debtor. Jewell A. Francis v. Itt Financial Services Ati Thrift and Loan, Inc.
9th Cir. · 1992 · confidence medium
Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir.1988) (quoting Green v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986)). 4 Here, the 10-day period began on July 27, 1990 when the bankruptcy court's order was entered.
cited Cited as authority (rule) In Re Stephen-David Corp., Debtor. Joseph Rae, an Officer of the Stephen-David Corporation v. Cyprus Mines Corp.
9th Cir. · 1991 · confidence medium
Allustiarte v. Hauser, In re Allustiarte, 848 F.2d 116, 117 (9th Cir.1988).
cited Cited as authority (rule) Burman v. Homan (In Re Homan)
9th Cir. BAP · 1990 · confidence medium
In re Allustiarte, 848 F.2d 116, 117 (9th Cir. 1988); In re Stuerke, 61 B.R. 623, 625 (9th Cir. BAP 1986).
cited Cited "see" In re Powell
4th Cir. · 1992 · signal: see · confidence high
See In re Allustiarte, 848 F.2d 116 (9th Cir.1988)
cited Cited "see" Raleigh Inn, Inc. v. BWAC Liquidation Corp.
W.D.N.C. · 1990 · signal: see · confidence high
See In re Allustiarte, 848 F.2d 116, 117 (9th Cir.1988).
cited Cited "see, e.g." In Re Shearn Moody, Jr., Debtor. Martin Paul Solomon v. W. Steve Smith, Trustee and Shearn Moody, Jr., Debtor
5th Cir. · 1995 · signal: see, e.g. · confidence low
See, e.g., In re Allustiarte, 848 F.2d 116 (9th Cir. 1988); Stelpflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986).
discussed Cited "see, e.g." Intercontinental Enterprises, Inc. v. Keller (In Re Blinder, Robinson & Co.)
D. Colo. · 1991 · signal: compare · confidence medium
See generally, Nicoladze v. Lawler, 86 B.R. at 72 ; Compare Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir.1988) (appeal filed prior to entry of order on docket sheet deemed timely) with In re Sweet Transfer, 896 F.2d 1189 (appeal of order denying reconsideration premature).
cited Cited "see, e.g." Shearn MOODY, Jr., Debtor. Martin Paul SOLOMON v. W. Steve SMITH, Trustee and Shearn Moody, Jr., Debtor
unknown court · signal: see, e.g. · confidence low
See, e.g., In re Allustiarte, 848 F.2d 116 (9th Cir.1988); Stelpflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986).
cited Cited "see, e.g." Shearn MOODY, Jr., Debtor. Martin Paul SOLOMON v. W. Steve SMITH, Trustee and Shearn Moody, Jr., Debtor
unknown court · signal: see, e.g. · confidence low
See, e.g., In re Allustiarte, 848 F.2d 116 (9th Cir.1988); Stelpflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986).
Retrieving the full opinion text from the archive…
In Re Ben ALLUSTIARTE and Linda Allustiarte, Debtors. Gregory R. ALLUSTIARTE, Et Al., Allustiarte Brothers (A Partnership), Plaintiffs-Appellants,
v.
Dennis M. HAUSER, Defendant-Appellee
86-2807.
Court of Appeals for the Ninth Circuit.
May 31, 1988.
848 F.2d 116
Merrill, Reinhardt, Hall.
Cited by 13 opinions  |  Published

[*117] ORDER

The memorandum disposition filed April 22, 1988 is redesignated a Per Curiam Opinion.

OPINION

PER CURIAM:

Ben and Linda Allustiarte (Allustiartes), pro se, appeal from a district court order dismissing their appeal from the bankruptcy court for lack of jurisdiction based upon a late filing of their appeal. The Allust-iartes sought to appeal the bankruptcy court’s order authorizing payment of compensation to the interim trustee. We reverse.

FACTS and PROCEEDINGS

On September 5, 1985, bankruptcy court Judge Dahl granted Dennis Hauser’s request for compensation for services rendered as the interim trustee. The order was not entered on the bankruptcy court’s docket sheet. On December 23, 1985, the Allustiartes filed a notice of appeal. On September 17, 1986, the district court dismissed the appeal as untimely under Rule 8002 of the Federal Rules of Bankruptcy. The Allustiartes timely filed this appeal.

DISCUSSION

Rule 8002(a) of the Bankruptcy Rules provides that “[t]he notice of appeal shall be filed with the Clerk of the bankruptcy court within 10 days of the date of entry of the judgment, order or decree appealed from.” Every judgment entered must be set forth on a separate document. Fed.R. Bktcy. 9021. A judgment is considered effective when entered. Fed.R.Bktcy. 5003. The timely filing of a notice of appeal is jurisdictional. Greene v. United States, 795 F.2d 855, 857 (9th Cir.1986). This court must, sua sponte, determine jurisdiction. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (federal appellate court has an obligation to satisfy itself not only of its own jurisdiction but also that of the lower courts); Christian Life Center Litig. Defense Comm. v. Silva, 821 F.2d 1370, 1373 (9th Cir.1987) (“[o]n our own motion we must determine whether we have jurisdiction over the appeal”).

A notice of appeal is deemed timely if filed prior to entry of the order on the docket sheet. Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir.1987) (the period for filing a notice of appeal begins upon the entry of the judgment or order appealed from); cf. Brand v. Menlove Dodge, 796 F.2d 1070, 1072 n. 2 (9th Cir.1986) (under Fed.R.App.P. 4(a), a notice of appeal filed after announcement but before entry of the judgment is treated as though it were filed after entry of judgment).

In dismissing the appeal, the district court stated that the order awarding compensation to the interim trustee was entered on September 5, 1985, and that since the notice of appeal was filed on December 23, 1985, the appeal was untimely under Rule 8002(a). Although the bankruptcy court order was dated September 5, 1985, the order was never actually entered on either Linda’s or Ben’s docket sheets. Accordingly, because the time for filing a notice of appeal never commenced, the district court erred in ruling that the appeal was untimely. Vernon, 811 F.2d at 1276.

We conclude that the district court has jurisdiction over the appeal from the bankruptcy court, and the district court may rule on the merits of the appeal without waiting for the bankruptcy court clerk to enter a separate judgment. See id. at 1276-77 (the court “need not engage in the pointless exercise of dismissing the appeal and waiting for the district court clerk to enter a separate judgment before hearing the appeal”).

REVERSED AND REMANDED