Bailey & Associates v. Daryl & Theola Ray

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 98-6033EM
In re: *
*
Bailey & Associates, Inc., *
*
Debtor. *
*
Bailey & Associates, Inc., *
*
Plaintiff/Appellee, *
* Appeal from the United States
v. * Bankruptcy Court for the
* Eastern District of Missouri.
Daryl M. Ray and *
Theola S. Olion-Ray, * [UNPUBLISHED]
*
Defendants/Appellants. *
Submitted: June 15, 1998
Filed: June 22, 1998
Before KRESSEL, SCOTT and DREHER, Bankruptcy Judges.
KRESSEL, Bankruptcy Judge.
The defendants in this adversary proceeding appealed the bankruptcy court’s entry
of a default judgment against them. Prior to filing their notice of appeal, the defendants also
filed a request with the bankruptcy court to vacate its default judgment. The request alleges
the plaintiff’s attorney’s promise to call them at the time of trial so that they could participate

We note that the appellants’ time to appeal from the default judgment is tolled for ten1
days after the disposition of the appellants’ motion. Fed. R. Bankr. P. 8002(b).
2
by telephone, but that no such call was placed. The bankruptcy court has not yet ruled on
their request.
After the defendants filed their brief, the plaintiff’s attorney filed a letter with this
court conceding that he had made such a promise, but failed to follow through and conceding
that the motion for relief from the default judgment should be granted. It is the bankruptcy
court that should rule on the appellants’ motion.1
CONCLUSION
We therefore remand this proceeding to the bankruptcy court so that it may dispose
of the appellants’ motion for relief from the default judgment.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
EIGHTH CIRCUIT.