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Theresa Marshall v. ECMC, 18-1843 (2018)

Court: Court of Appeals for the Eighth Circuit Number: 18-1843 Visitors: 35
Filed: May 23, 2018
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 18-1843 _ In re: Theresa Marshall Debtor - Theresa Marshall Appellant v. Educational Credit Management Corporation; MOHELA Appellees _ No. 18-1845 _ In re: Theresa Marshall Debtor - Theresa Marshall Appellant v. Educational Credit Management Corporation; MOHELA Appellees _ Appeal from the United States Bankruptcy Appellate Panel for the Eighth Circuit _ Submitted: April 23, 2018 Filed: May 23, 2018 [Unpublished] _ Before SHEPHERD, ERI
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   United States Court of Appeals
             For the Eighth Circuit
         ___________________________

                 No. 18-1843
         ___________________________

              In re: Theresa Marshall

                                Debtor

             ------------------------------

                 Theresa Marshall

                               Appellant

                          v.

Educational Credit Management Corporation; MOHELA

                        Appellees
         ___________________________

                 No. 18-1845
         ___________________________

              In re: Theresa Marshall

                               Debtor

             ------------------------------

                 Theresa Marshall

                               Appellant

                          v.
             Educational Credit Management Corporation; MOHELA

                                          Appellees
                                   ____________

                     Appeal from the United States Bankruptcy
                       Appellate Panel for the Eighth Circuit
                                  ____________

                             Submitted: April 23, 2018
                               Filed: May 23, 2018
                                  [Unpublished]
                                  ____________

Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
                         ____________

PER CURIAM.

      In these consolidated appeals, Theresa Marshall appeals the Bankruptcy
Appellate Panel’s (BAP) orders dismissing her appeals for lack of jurisdiction.
Marshall filed a Chapter 13 bankruptcy petition. Relevant to this appeal are the
bankruptcy court’s1 orders, which overruled Marshall’s objections to the proof of
claim submitted by Educational Credit Management Corporation (“ECMC”) and
MOHELA, and denied her emergency motion to invalidate a transfer of a claim by
ECMC. The BAP concluded that the notices of appeal regarding the July 28, 2017,
and August 24, 2017, bankruptcy court orders were untimely, as they were filed
beyond the 14-day deadline set forth in Rule 8002(a) of the Federal Rules of
Bankruptcy Procedure. The BAP further concluded that Marshall’s September 1,
2017, motion to require the bankruptcy court to reduce its oral findings to writing was


      1
       The Honorable Richard D. Taylor, United States Bankruptcy Judge for the
Eastern District of Arkansas.

                                         -2-
not a motion under Fed. R. Bankr. P. 7052 and thus did not toll the 14-day appeal
deadline under Rule 8002(b).

       We have jurisdiction to review final decisions of the BAP under 28 U.S.C. §
158(d). When reviewing a decision of the BAP, “we act as a second reviewing court
of the bankruptcy court’s decision, independently applying the same standard of
review as the BAP.” In re Lasowski, 
575 F.3d 815
, 818 (8th Cir. 2009) (citing Eilbert
v. Pelican (In re Eilbert), 
162 F.3d 523
, 525 (8th Cir.1998)). We review de novo the
BAP’s determination on jurisdiction. See In re O & S Trucking, Inc., 
811 F.3d 1020
,
1023 (8th Cir. 2016).

       Upon review of the record, we hold that the BAP did not err in dismissing, for
lack of jurisdiction, Marshall’s untimely appeal from the bankruptcy court’s orders
at issue in this consolidated appeal. Because it is apparent from the record that the
notices of appeal were untimely and there is no set of facts to support equitable
tolling, we need not reach the issue of whether the September 1, 2017, motion falls
within the parameters of Rule 7052. Accordingly, we affirm. See 8th Cir. R. 47A
                        ______________________________




                                         -3-

Source:  CourtListener

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