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Eighth Circuit Affirms Dismissal of Untimely Appeal for Lack of Jurisdiction

By Karl Johnson posted 06-13-2018 02:24 PM

  
BANKRUPTCY BULLETIN
Editors-in-Chief
Karl Johnson, Hellmuth & Johnson, PLLC
Jeffrey Klobucar, Bassford Remele, P.A.
Contributing Editor: Amanda Schlitz, US Bank
Eighth_Circuit___Marshall_v__Educational_Credit_Mgmt__Corp_.pdf

In Marshall v. ECMC et al. (In re Marshall), Nos. 18-1843, 18-1845 (8th Cir. May 23, 2018), the Eighth Circuit reviewed the BAP’s dismissal of an untimely appeal for lack of jurisdiction. In the underlying case, the bankruptcy court overruled the debtor’s objection to the proof of claim of ECMC and MOHELA, its successor, and denied the debtor’s emergency motion to invalidate the transfer of claim by ECMC to MOHELA. The debtor filed a motion to require the bankruptcy court to reduce its oral findings on those matters to writing, and appealed to the BAP. The BAP dismissed the appeal for lack of jurisdiction because the debtor’s notices of appeal of those orders were untimely. Unless an exception applies, Rule 8002(a) requires a notice of appeal be filed within 14 days after entry of the judgment or order being appealed. The debtor did not file notices of appeal until after the expiration of that 14-day deadline. Rule 8002(b) lists the types of motions that, if timely filed, toll the deadline for filing a notice of appeal. Those are a motion to amend or make additional findings under Rule 7052, to amend the judgment, for a new trial, or for relief from judgment or order. The BAP concluded that the debtor’s motion to require the bankruptcy court to reduce its oral findings to writing was not within the parameters of Rule 7052, and therefore, did not toll the debtor’s 14-day deadline. On appeal, the Eighth Circuit per curiam affirmed the BAP’s dismissal for lack of jurisdiction due to the untimely appeal filings. Having determined on de novo review that the BAP did not err, it further observed that nothing in the record would support equitable tolling and declined to address whether the debtor’s motion qualified as one under Rule 7052.

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