BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 1 of 14 FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit NOT FOR PUBLICATION 1 November 10, 2025 UNITED STATES BANKRUPTCY APPELLATE PANEL Anne Zoltani OF THE TENTH CIRCUIT Clerk _________________________________

IN RE AMY LIEBL DARTER, MD, PC, BAP No. WO-25-6

Debtor.

_________________________________ Bankr. No. 23-11680 DOUGLAS GOULD, Chapter 7 Trustee, Adv. No. 23-1057 Chapter 7 Plaintiff - Appellee,

v.

KT WEAVER, KT WEAVER CONSTRUCTION, LLC, and AMY OPINION LIEBL-WEAVER,

Defendants - Appellants. _________________________________

Appeal from the United States Bankruptcy Court for the Western District of Oklahoma

Submitted on the briefs. 2 ________________________________

Before ROMERO, Chief Judge, HUNT, and HERREN, Bankruptcy Judges. ________________________________

1 This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026-6. 2 The parties did not request oral argument, and after examining the briefs and appellate record, the Court has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. Bankr. P. 8019(b). The case is therefore ordered submitted without oral argument. BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 2 of 14

HERREN, Bankruptcy Judge.

Appellants were one day late filing a notice of appeal, and on the same day filed a

motion asking the Bankruptcy Court to extend the deadline to allow the untimely notice

because of excusable neglect. Appellants claimed the late notice of appeal was an honest

calendaring mistake made despite understanding the rule setting forth the deadline. The

Bankruptcy Court denied the motion to extend the time for filing the notice of appeal,

finding that miscalendaring a clear and unambiguous deadline was not enough to

establish excusable neglect. Because the Bankruptcy Court did not err in its interpretation

of the law or otherwise abuse its discretion in its ruling, we affirm.

I. Background

On December 16, 2024, the Bankruptcy Court entered its Findings of Fact and

Conclusions of Law and Journal Entry of Judgment (“Judgment”) for chapter 7 Trustee

Douglas N. Gould (the “Trustee”) and against Amy Liebl-Weaver, KT Weaver, and KT

Weaver Construction, LLC (collectively “Appellants”) following a two-day trial in an

adversary proceeding involving claims of fraudulent transfer under

, 3

civil conspiracy, and embezzlement. The Judgment awarded partial relief in favor of the

Trustee against Appellants on the § 548 claims in the amount of $623,347.82, and partial

relief in favor of Appellants on the Trustee’s claims for civil conspiracy and

embezzlement.

3 Unless otherwise noted, all references to “Section,” “§,” “Bankruptcy Code,” and “Code” refer to the U.S. Bankruptcy Code,

, et seq., and all references to the “Rules” refer to the Federal Rules of Bankruptcy Procedure. 2 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 3 of 14

Subsequently, on December 31, 2024 (fifteen days after entry of the Judgment),

Appellants filed a Notice of Appeal from the Judgment. 4 At the same time, Appellants

filed a Motion to Extend Time to File Notice of Appeal (“Motion”) under Rule

8002(d)(1)(B). On January 8, 2025, the Trustee filed a Response to Motion to Extend

Time and, on January 23, 2025, the Bankruptcy Court entered an Order denying the

Motion (“Order”). On February 4, 2025, Appellants appealed the Order.

II. Jurisdiction

The Court has jurisdiction to hear timely filed appeals from “final judgments,

orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless a party elects

to have the district court hear the appeal. 5 No party elected to have the district court hear

the appeal. Appellants timely appealed the Order, which is a final order. 6 Thus, the Court

has jurisdiction over this appeal.

III. Issues on Appeal and Standard of Review

Appellants assert the following issue on appeal: “Whether the [B]ankruptcy

[C]ourt erred when it denied the Appellants’ Motion to Extend Time to File Notice of

Appeal based upon lack of ‘excusable neglect.’” 7 Appellants then make two arguments:

the Bankruptcy Court erred in its interpretation and application of the law; and the

4 That appeal was assigned BAP Case No. WO-24-22. On March 3, 2025, the appeal was dismissed by this Court for lack of jurisdiction because it was untimely. See WO-24-22, Order Dismissing Appeal at 3. 5

(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8003, 8005. 6 In re Higgins,

(10th Cir. BAP 1998) (“An order denying a motion for extension of time to file a notice of appeal is a ‘final order,’ from which an appeal will lie.”). 7 Appellants’ Opening Br. at 5. 3 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 4 of 14

Bankruptcy Court abused its discretion by resolving the Motion without an evidentiary

hearing.

The Court reviews a bankruptcy court’s order denying an extension of time for

abuse of discretion. 8 The Court also reviews a bankruptcy court’s decision not to hold an

evidentiary hearing for an abuse of discretion. 9 The abuse-of-discretion standard is highly

deferential; reversal is warranted only if the bankruptcy court’s decision was arbitrary,

capricious, whimsical, or manifestly unreasonable. 10 A clear example of an abuse of

discretion exists where the trial court “commits a legal error or relies on clearly erroneous

factual findings.” 11 “Questions regarding the application of a legal standard are reviewed

de novo.” 12 On mixed questions of whether the facts satisfy the proper legal standard, the

Court also conducts “a de novo review if the question primarily involves the

consideration of legal principles.” 13

8 In re Lang,

(10th Cir. BAP 2004) (citing Berger v. Buck (In re Buck),

(10th Cir. BAP 1998) (abuse of discretion standard applied to denial of motion to extend time to file notice of appeal)). 9 Shaw v. AAA Eng’g & Drafting, Inc.,

(10th Cir. 2000); In re Lane, No. WY–14–061,

, at *6 (10th Cir. BAP 2015) (unpublished). 10 Moothart v. Bell,

, 1504–05 (10th Cir. 1994). 11 Cruz v. Farmers Ins. Exch.,

, 1210 (10th Cir. 2022) (internal citation omitted); see also Jackson v. Los Lunas Cmty. Program,

(10th Cir. 2018) (“‘A clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.” (quoting Ohlander v. Larson,

(10th Cir. 1997))). 12 Carter-Waters Okla., Inc. v. Bank One Tr. Co., N.A. (In re Eufaula Indus. Auth.),

(10th Cir. BAP 2001). 13

4 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 5 of 14

IV. Discussion

a. Statutory Framework

Rule 8002(a) provides a notice of appeal must be filed with the bankruptcy court

within fourteen days after the judgment, order, or decree to be appealed is entered. A

bankruptcy court may extend the time for filing the notice of appeal if a motion to extend

is filed within the original fourteen-day period, or within twenty-one days after that time

expires if the party shows excusable neglect. 14

In 1993, in Pioneer Investment Services Co. v. Brunswick Associates Ltd.

Partnership, the Supreme Court interpreted the term “excusable neglect” as used in Rule

9006(b)(1), which permits a court to allow a late filing if the failure to act was due to

excusable neglect. 15 In that case, a creditor’s attorney filed a proof of claim after the bar

date, allegedly because the deadline was not prominently disclosed in the notice of the

creditors’ meeting. 16 The Supreme Court held “excusable neglect” is a broad and

equitable concept, extending beyond omissions caused by circumstances beyond the

movant’s control. 17 It concluded “neglect” encompasses inadvertence, mistake, or

carelessness, and courts are not limited to granting relief only where a party was

prevented from complying due to unforeseen circumstances. 18 To determine whether

neglect is “excusable,” the Supreme Court further directed courts to consider all relevant

14 Fed. R. Bankr. P. 8002(d). 15 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993). 16

at 384–85. 17

at 391–92. 18

. 5 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 6 of 14

circumstances and identified four illustrative factors—none of which are dispositive—for

consideration in that analysis:

(a) The danger of prejudice to the opposing party; (b) The length of the delay and its potential impact on judicial proceedings; (c) The reason for the delay, including whether it was within the reasonable control of the movant; and (d) Whether the movant acted in good faith. 19

The Supreme Court declined to adopt a categorical approach, cautioned lower courts

against erecting bright-line rules excluding classes of errors from consideration, and

emphasized the need for flexibility and equitable judgment. 20 Applying this standard, the

Supreme Court found the creditor’s delay was excusable under the circumstances of that

case.

Subsequently, in United States v. Torres, the Tenth Circuit addressed whether

counsel’s misinterpretation of a deadline could constitute excusable neglect under Federal

Rule of Appellate Procedure 4(b)(4), which also contains an excusable neglect standard. 21

In Torres, defense counsel filed a notice of appeal eighteen days late after confusing the

deadline for filing civil versus criminal appeals. 22 The district court granted an extension

of the appeal deadline based on excusable neglect, but the Tenth Circuit reversed and

held that a misreading of a clear and unambiguous rule does not constitute excusable

neglect under the Pioneer standard. 23 It recognized the term “excusable neglect” applies

19

. 20

. 21

(10th Cir. 2004). 22

. 23

at 1163–64. 6 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 7 of 14

broadly across procedural rules that use the phrase and also emphasized fault in the delay

is “perhaps the most important single factor” in the analysis. It noted that

misinterpretation of a clear, unambiguous rule, even if in good faith, weighs heavily

against a finding of excusable neglect. 24 Accordingly, the Tenth Circuit concluded

defense counsel’s misreading of a readily accessible, unambiguous rule did not constitute

excusable neglect. 25

The Tenth Circuit’s unpublished decision in Biodiversity Conservation Alliance v.

Bureau of Land Management 26 is also persuasive. In Biodiversity, the appellant sought to

excuse an untimely notice of appeal under Federal Rule of Appellate Procedure 4(a)(5),

which also allows for an extension of time for excusable neglect. There, “counsel claimed

that when she checked her America Online (AOL) electronic mail account on June 10,

2010, she had not received the district court’s judgment” and asserted that she ultimately

did not receive it in her email until June 11, 2010. 27 She explained that she consequently

calculated the time for filing an appeal based on receipt of the judgment on June 11,

2010, but later learned that the judgment was actually filed in the PACER system on June

10, 2010. 28 The district court, finding excusable neglect, extended the deadline to file a

notice of appeal to August 10, 2010—just one day past the original deadline to appeal.

24

. 25

26

(10th Cir. 2011) (unpublished). 27

at 670–71. Counsel suggested the discrepancy might have resulted from an internal server issue of the PACER system used to electronically deliver documents or some delay within the AOL system.

. 28

7 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 8 of 14

Following an appeal, the Tenth Circuit determined the district court abused its

discretion in finding excusable neglect and extending the deadline. The decision

acknowledged counsel’s explanation but found it insufficient to establish excusable

neglect. The Circuit emphasized that counsel’s reason for delay was indistinguishable

from the reason for delay in Torres. Thus, the Circuit determined that, under the binding

precedent established in Torres, the untimely filing caused by the attorney’s mistake in

calculating the deadline—due to either misreading the rule or counting from the date of

her receipt of the judgment instead of its entry date—could not qualify as excusable

neglect. 29

b. The Bankruptcy Court did not err in denying the Motion.

As noted above, Appellant raises two arguments: (1) the Bankruptcy Court erred

in its interpretation and application of “excusable neglect” under Pioneer; and (2) the

Bankruptcy Court abused its discretion by resolving the Motion without providing

Appellants an opportunity for an evidentiary hearing.

i. The Bankruptcy Court did not err in its interpretation and application of “excusable neglect” under Pioneer.

In their Motion, Appellants acknowledged the Judgment was entered on December

16, 2024, and that counsel did not receive notice until December 17, 2024. They stated

the deadline to file a notice of appeal was “mistakenly docketed” and counsel “did not

(“As a result, the untimely filing was simply based on counsel’s 29

miscalculation of the deadline or a failure to read the rule, which cannot constitute excusable neglect under Torres.”). 8 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 9 of 14

realize the mistake” until preparing the Notice of Appeal. 30 The Motion concluded by

asserting: “Based upon the foregoing circumstances, good cause exists to extend

[Appellants’] time to file their Notice of Appeal.” 31

The Bankruptcy Court denied the Motion, finding Appellants’ counsel

miscalculated the appeal deadline by relying on the date he received electronic notice of

the Judgment, rather than the date of entry, as required by Rule 8002(a)(1). The

Bankruptcy Court emphasized that “[e]xcusable neglect” is an equitable concept, and

while Pioneer requires courts to consider all relevant factors, the Tenth Circuit has

recognized that the “reason for the delay” is “perhaps the most important single factor.” 32

While acknowledging that certain Pioneer factors favored Appellants (minimal prejudice,

a short delay, and good faith), the Bankruptcy Court found the calendaring error resulted

from a miscalculation or misunderstanding of an unambiguous rule and was entirely

within counsel’s control. Thus, the Bankruptcy Court concluded Appellants failed to

establish excusable neglect. 33

Appellants argue the Bankruptcy Court misapplied Pioneer by giving

disproportionate weight to the “reason for the delay” and failing to engage in a balanced

analysis of all four factors. 34 They contend the Bankruptcy Court imposed a bright-line

rule against calendaring errors, contrary to Pioneer’s flexible, totality-of-the-

30 Motion at 2 in Appellants’ App. at 65. 31

at 3 in Appellants’ App. at 66. 32 See Order at 5–7 in Appellants’ App. at 80–82 (quoting Biodiversity,

; United States v. Torres,

(10th Cir. 2004)). 33

at 5–8 in Appellants’ App. at 80–83. 34 Appellants’ Opening Br. at 7–9, 11–12. 9 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 10 of 14

circumstances approach. 35 Appellants also argue the Bankruptcy Court erred by

determining it was required to find against Appellants based on the reasoning in Torres.

Appellants contend the error was a one-day calendaring mistake, not indifference or a

misunderstanding regarding the rules, and thus, the error should not be deemed

inexcusable where there was no prejudice, bad faith, or significant delay. 36

Addressing these two arguments in order, the Bankruptcy Court did not err in its

interpretation of Pioneer. It applied the Pioneer framework and fully considered each of

the four factors. While the Bankruptcy Court emphasized the third factor, the reason for

the delay, it did so consistent with rulings from the Tenth Circuit, which repeatedly

emphasize this factor may be dispositive. 37 Thus, the Bankruptcy Court did not adopt a

bright-line rule in contravention of Pioneer.

Second, Appellants characterize the calendaring error as a “simple episode of

absent-mindedness” rather than a misreading or misinterpretation of the rules. 38 They

35

at 12–14. 36

at 13–14. 37 E.g., United States v. Allen, No. 21-6067,

, at *2 (10th Cir. Feb. 23, 2022) (unpublished) (“And because the reason for the delay is the most important factor in the analysis, the district court weighed this factor more heavily than the others and concluded that Allen failed to show excusable neglect.”); Perez v. El Tequila, LLC,

(10th Cir. 2017) (“The most important factor is the third; an inadequate explanation for delay may, by itself, be sufficient to reject a finding of excusable neglect.”); Biodiversity,

(“[T]he untimely filing was simply based on counsel’s miscalculation of the deadline or a failure to read the rule, which cannot constitute excusable neglect under Torres.”); Torres,

; City of Chanute, Kan. v. Williams Nat. Gas Co.,

, 1046 (10th Cir. 1994) (“It is true that fault in the delay remains a very important factor—perhaps the most important single factor—in determining whether neglect is excusable.”). 38 Appellants’ Opening Br. at 13. 10 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 11 of 14

argue Torres does not compel a finding of inexcusable neglect because it is factually

different from this case in that counsel here did not misread the Rule as in Torres, but

simply failed to properly identify the date of entry of the Judgment based on the mistaken

belief that the Bankruptcy Court’s email notice reflected the entry date.

Although it was an unpublished opinion, the Tenth Circuit explicitly rejected this

argument in Biodiversity in holding an “untimely filing . . . based on counsel’s

miscalculation of the deadline . . . cannot constitute excusable neglect under Torres.” 39

Counsel’s “miscalculation” in Biodiversity was also calculating the deadline from the

date she electronically received the judgment, instead of from the date on which the

judgment was entered. Although Biodiversity is not a published decision, it is persuasive

authority. Applying that reasoning here, the Bankruptcy Court’s determination that

Appellants’ calendaring error did not amount to excusable neglect is consistent with both

Biodiversity and controlling Tenth Circuit precedent.

This Court must defer to the Bankruptcy Court’s factual findings—that the error

stemmed from counsel’s miscalculation or a misunderstanding of a rule and was within

counsel’s control—unless those findings lack any credible evidentiary support or are

irrational based on the record. 40 There is nothing in the record to suggest that is the case

here.

39 Biodiversity,

(emphasis added). 40 In re Stewart,

, 906 (10th Cir. 2019) (quoting In re Mama D’Angelo, Inc.,

(10th Cir. 1995) (“It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying

11 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 12 of 14

Accordingly, the Bankruptcy Court did not err in its interpretation of Pioneer, nor

did it abuse its discretion in applying Pioneer to the facts.

ii. The Bankruptcy Court did not abuse its discretion by resolving the Motion without holding a hearing.

The Bankruptcy Court resolved the Motion without conducting a hearing. It

determined the relevant facts, namely, the date of Judgment entry, the date of counsel’s

receipt of electronic notice, and the calendaring mistake, and these facts were undisputed

based on the parties’ briefing. 41

Appellants argue a hearing would have allowed them to clarify the “ambiguity”

surrounding the nature of the calendaring error. 42 They contend the Bankruptcy Court

“mistakenly” assumed counsel did not read Rule 8002(a)(1), and argue a hearing was

necessary to explain counsel’s mistake arose from misidentifying the date of entry, not

from misunderstanding the rule itself. 43

The Bankruptcy Court for the Western District of Oklahoma has adopted local

rules. Specifically, Local Rule 9013-1(F) provides hearings “may not be conducted

routinely unless” expressly requested or required “by an applicable Bankruptcy Rule.” 44

While Appellants included a standard “notice of opportunity for hearing” in the Motion

some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.”)). 41 Order at 5–6 in Appellants’ App. at 80–81. 42 Appellants’ Opening Br. at 13. 43

at 12–13. 44 Local Rule 9013-1(F) (“Hearings on requests for relief may not be conducted routinely unless requested or unless required by an applicable Bankruptcy Rule.”). 12 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 13 of 14

as required by Local Rule 9013-1(G), 45 that language does not constitute a hearing

request. Appellants’ counsel stated in the Motion he “attempted to contact Court

chambers the afternoon of December 31, 2024, to obtain a hearing date,” 46 but the

Bankruptcy Court did not rule on the Motion until January 23, 2025. The record reflects

no additional efforts by Appellants to formally request or pursue an evidentiary hearing

in any way during this period. The Tenth Circuit has made clear a “court does not abuse

its discretion in deciding not to hold an evidentiary hearing when no such request is ever

made.” 47

More importantly, even if a hearing had been properly requested, the record

reflects that the calendaring mistake—counsel’s reliance on the date of receipt of the

notice rather than the docketed entry date—was fully presented in the Motion, and

Appellants did not identify any disputed material facts. The Order turned on the legal

sufficiency of counsel’s excuse under the excusable neglect standard. Even if a hearing

might have clarified further that Appellant’s counsel properly understood the rule but

simply miscalculated the deadline because of a failure to base it on the date the Judgment

45 Local Rule 9013-1(G) requires “all motions or requests for relief” to include specified language concerning the notice of opportunity for hearing. 46 Motion at 3 in Appellants’ App. at 66. 47 Robinson v. City of Edmond,

(10th Cir. 1998). See also In re Padilla, No. CO–08–044,

(10th Cir. BAP Oct. 14, 2008) (unpublished) (explaining “only an ‘opportunity for a hearing,’ and not an actual hearing is required” under the Code’s “after notice and a hearing” standard); Jones v. Azar,

, 1148 (D. Kan. 2020) (noting motions may be resolved without a hearing where “the issues and evidence presented can be adequately addressed by review of the briefs and accompanying materials”) (citing Justice v. Wallace,

(10th Cir. 2006) (unpublished)). 13 BAP Appeal No. 25-6 Docket No. 25 Filed: 11/10/2025 Page: 14 of 14

was entered instead of when counsel received notice of the Judgment, the result would be

the same under the reasoning of the Biodiversity case. The Bankruptcy Court did not

abuse its discretion in denying the Motion without a hearing.

V. Conclusion

The Bankruptcy Court applied the correct legal standard, considered the relevant

Pioneer factors, and acted within the bounds of its discretion. Although the Tenth

Circuit’s decision in Biodiversity is not binding precedent, we do not think there can be

an abuse of discretion when the Bankruptcy Court rules consistently with a persuasive

Tenth Circuit decision that is directly relevant to the facts before it. Accordingly, the

Order of the Bankruptcy Court is AFFIRMED.

14