Kathryn Nielsen v. ACS, Inc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED) [4122307] [13-2518]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2518
___________________________
In re: Erik Nielsen; Kathryn R Nielsen
lllllllllllllllllllllDebtors
-----------------------------Kathryn R Nielsen
lllllllllllllllllllllAppellant
v.
ACS, Inc.; Educational Credit Management Corporation
lllllllllllllllllllllAppellees
-----------------------------In re: Erik Nielsen; Kathryn R Nielsen
lllllllllllllllllllllDebtors
------------------------------

Appellate Case: 13-2518

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Date Filed: 02/10/2014 Entry ID: 4122307

Kathryn R Nielsen
lllllllllllllllllllllAppellant
v.
Iowa Student Loan Liquidity Corporation; Educational Credit Management Corporation
lllllllllllllllllllllAppellees
____________
Appeal from the United States Bankruptcy
Appellate Panel for the Eighth Circuit
____________
Submitted: January 21, 2014
Filed: February 10, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Petitioner Kathryn Nielsen appeals the Bankruptcy Appellate Panel’s (BAP’s)
order dismissing as untimely her appeal of the bankruptcy court’s May 24, 2013 order
in an adversary proceeding. Nielsen filed her notice of appeal on June 9. Because
we find no indication that the bankruptcy court filed a separate written judgment as
required, see Fed. R. Bankr. P. 7058 (Fed. R. Civ. P. 58 applies in adversary
proceedings); Fed. R. Civ. P. 58(a) (every judgment and amended judgment must be
set out in separate document), we conclude that judgment on the May 24 order was
not deemed to be “entered” until Monday, October 21, see Fed. R. Civ. P. 58(a)(c) (if
separate document is required, judgment is deemed entered when judgment is set
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forth in separate document, or 150 days have passed after entry of order, whichever
occurs first); Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir. 2002)
(standard of review). Thus, Nielsen’s June 9 notice of appeal was timely as to the
bankruptcy court’s order. See Fed. R. Bankr. P. 8002(a) (petitioner must appeal order
within 14 days after its entry); Fed. R. Bankr. P. 9006(a)(1) (rules for computing time
period); cf. Chambers v. City of Fordyce, Ark., 508 F.3d 878, 880-81 (8th Cir. 2007)
(per curiam) (where order disposing of case was not followed by entry of judgment
in separate document as required, notice of appeal filed before expiration of 150 days
was premature but still timely). Accordingly, we vacate the BAP’s dismissal order,
and remand to the BAP for further proceedings.
______________________________

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Date Filed: 02/10/2014 Entry ID: 4122307