In Re Richard E. Donovan, Debtor. National Bank of Long Beach v. Richard E. Donovan, an Individual and Chapter 7 Trustee, Steven E. Smith

On December 21, 1987, the bankruptcy court granted the trustee’s motion for summary judgment and determined a deed of trust in the debtor’s property held by appellant National Bank of Long Beach (“Na tional Bank”) was void. National Bank timely appealed to the Bankruptcy Appellate Panel (BAP) and simultaneously designated the transcript of the summary judgment hearing for inclusion in the record on appeal. National Bank claims this designation was inadvertent.

It does not appear National Bank took any action to comply with this provision.

On February 4, 1988, a deputy clerk of the BAP issued a form conditional order of dismissal which allowed National Bank 20 days to “provide[] written explanation showing legal cause why the appeal should not be dismissed.” This order contained no proof of service and National Bank’s counsel claims never to have received it.

National Bank did not respond to the conditional order. The BAP dismissed the appeal on April 14, 1988. National Bank moved the BAP to set aside its order of dismissal, claiming the designation of the transcript was “incorrect[ ],” that no notice of the procedural default was received, and that dismissal was therefore “an…