Tenth Circuit dismisses bankruptcy appeal because the notice of appeal left out the order the debtor wanted vacated
The scope of a notice of appeal decides what an appellate court can review. In Lopez v. Jenkins, an unpublished order and judgment, the Tenth Circuit dismissed a chapter 13 debtor's appeal for lack of jurisdiction. His notice of appeal named only the ruling affirming the dismissal of his bankruptcy case, not the separate ruling on the order lifting the automatic stay, which was the order he most wanted vacated.
What happened
A secured creditor, Auntie Tut Trust, had scheduled a foreclosure sale of a property in Herriman, Utah. On December 30, 2024, Lorenzo Luciano Lopez, who had received the property from the borrower, filed a chapter 13 petition. The next day, Auntie Tut moved for relief from the automatic stay.
The day before the stay-relief hearing, Lopez moved to dismiss his own case under 11 U.S.C. § 1307(b) and objected that the bankruptcy court no longer had jurisdiction to rule on stay relief. At the January 14, 2025 hearing, the bankruptcy court granted stay relief, including two years of in rem relief under § 362(d)(4), and then dismissed the case with prejudice, barring a new filing for 180 days under § 109(g)(2). The foreclosure sale was completed on January 24, 2025.
Lopez filed one notice of appeal to the Tenth Circuit Bankruptcy Appellate Panel covering both the Stay Relief Order and the Dismissal Order. The BAP treated it as two appeals. On August 7, 2025, it dismissed the stay-relief appeal as moot. On February 3, 2026, in a separate decision, it affirmed the Dismissal Order. Lopez's notice of appeal to the Tenth Circuit named only the BAP's affirmance of the Dismissal Order.
Does a notice of appeal limit what the court of appeals can review?
Yes, and the Tenth Circuit treated that limit as jurisdictional. The court wrote: “Our jurisdiction is limited by the scope of a litigant’s notice of appeal.” Federal Rule of Appellate Procedure 3(c)(1)(B) requires the notice to designate the judgment or appealable order being appealed, and the court, quoting its own precedent, described that requirement as “jurisdictional and not waivable.”
Lopez's main request was that the Tenth Circuit vacate the Stay Relief Order. But that order was not in front of the court. The BAP's ruling on it was never designated in his notice of appeal.
Why the merger rule did not save the appeal
Under the merger rule, an appeal from a final judgment brings up the earlier nonfinal orders that produced it. The court held that the rule stops there:
“the merger rule does not allow for merger of one final judgment into a separate final judgment”
The BAP's dismissal of the stay-relief appeal and its affirmance of the Dismissal Order were separate final judgments in separate appeals. So Lopez needed a timely notice of appeal from the stay-relief ruling under Rules 4(a)(1)(A) and 6(b)(1). As the court put it: “He failed to do so and thereby waived any right to appeal that order to this court.” Because the Stay Relief Order was not before it, the court held that “we have no independent power to vacate it.”
Can a debtor's own motion to dismiss stop a stay-relief ruling?
Lopez argued that his pending § 1307(b) motion stripped the bankruptcy court of authority to rule on stay relief, so the Stay Relief Order fell with any review of the Dismissal Order. The court disagreed. Even if § 1307(b) required immediate dismissal, the bankruptcy court kept its core jurisdiction under 28 U.S.C. § 157(b), and motions to terminate or modify the stay are core proceedings under § 157(b)(2)(G). The court noted that “Core proceedings jurisdiction can survive dismissal of the underlying bankruptcy case, including voluntary dismissal under § 1307(b).” It added that it doubted the pending motion barred the Stay Relief Order, but it did not decide that question.
That left the 180-day filing bar. The court held that challenge moot. Lopez's only injury was the January 24 foreclosure sale, and with the Stay Relief Order standing, vacating the filing bar would not change that sale. The disposition was short: “This appeal is DISMISSED.”
What it means in practice
Bankruptcy appeals move through layers: bankruptcy court, then the BAP or district court, then the court of appeals. One notice at the first level can become two appeals at the second, each ending in its own final judgment. At the next level, each judgment a party wants reviewed has to be named, on time. The merger rule does not fill the gap.
The decision also shows how a completed foreclosure sale can make what is left of an appeal moot. Our post on appeal deadlines covers the timing side of this problem.
Lopez v. Jenkins is an unpublished order and judgment. It is not binding precedent, though under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1 it may be cited for its persuasive value.
Key takeaways
- The Tenth Circuit held that its jurisdiction is limited by what the notice of appeal designates, and that the designation requirement is jurisdictional.
- The merger rule brings up nonfinal orders that led to a judgment, but it does not merge one final judgment into a separate final judgment.
- Because the debtor never designated the ruling on the stay-relief order, the court had no power to vacate that order.
- A bankruptcy court keeps core jurisdiction over stay relief, and that jurisdiction can survive dismissal of the case.
- Once the foreclosure sale was complete and the stay-relief order stood, the challenge to the 180-day filing bar was moot.
Why appeals like this one need an appellate lawyer
Lopez reached the Tenth Circuit with the argument he cared about most, that the stay should never have been lifted. The court never reached it. The trap was in a single document: a notice of appeal that named one of the BAP's two final judgments and not the other. Because no timely notice of appeal reached the stay-relief ruling, the court held he had waived any right to appeal it, and the foreclosure sale he was fighting stood.
That is the kind of problem appellate work is built to prevent. An appellate lawyer starts by mapping every order and judgment in the case, asking which are final, which are separate, and which the client actually needs changed. Each one gets its own deadline on the calendar, measured from the right trigger, and the notice of appeal is drafted to match the relief sought. In bankruptcy, that map also has to account for mootness, because a completed sale can end the dispute before the appeal is heard.
If you are facing a bankruptcy or civil ruling you may want to appeal, talk to an appellate lawyer early, before a deadline runs or an order is left out of the notice. Learn more about our appellate practice.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864