## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1084

___________ Alvin L. Baldwin, *
* Appellant, * * Appeal from the Bankruptcy v. * Appellate Panel for the Eighth * Circuit. Credit Based Asset Servicing and * Securitization, *
* Appellee. *

___________ Submitted: October 18, 2007 Filed: February 25, 2008

___________ Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge. Alvin Leroy Baldwin, debtor, appeals th e Bankruptcy Appellate Panel’s denial of his motion to rescind the bankruptcy court’s dismissal of his Chapter 13 case. Having jurisdiction under 28 U.S.C. § 158(d)(1 ), this court reverses and remands.

Since 1996, Baldwin has filed eight Chap ter 13 bankruptcy cases, all of which were dismissed before confirmation of a pl an. After four of the filings, in May 2002, Baldwin and the predecessor of Credit Bas ed Asset Servicing and Securitization (CBASS) entered into a home loan. After th e dismissal of his sixth Chapter 13 case, CBASS scheduled a foreclosure sale for March 24, 2005. That day Baldwin filed a-2- Chapter 13 petition, which was dismisse d two months later. CBASS scheduled another foreclosure sale for July 14, whic h was canceled when th e parties reached a workout agreement. Baldwin defaulted. CBASS scheduled a third foreclosure sale for March 2, 2006. Baldwin filed his ei ghth Chapter 13 case on February 23. CBASS postponed the foreclosure sale to March 9. On March 3, CBA SS moved to expedite and to dismiss, or in the alternative, for relief from the automatic stay. The attorney’s “Certificate of Service” to the motion states that “a copy of this document was either electronically mailed or forwarded first-cla ss regular mail March 3, 2006 to . . . Alvin Leroy Baldwin.”

The bankruptcy court set a hearing on CBASS’s motion at 9:00 a.m. on March 9. When the case was called, CBASS orally informed the court that personal service was obtained on March 7 (no a ffidavit or other evidence re garding service appears in the record). CBASS told the court that “m ailed copies would have also gone out of my office on March the 3rd.” Because Baldwinwas not present, the bankruptcy court moved the case to the end of the morning docket. When the case was called at 10:38 a.m., Baldwin was not present. No evid ence was presented. After hearing from CBASS, the bankruptcy court adopted the fi rst eleven allegations of CBASS’s motion as its findings of fact, including that the cas e was filed solely to hinder, delay, and frustrate creditors, and thus not in good faith . The court, “after notice and hearing,” dismissed the case, barred Baldwin from re filing for 180 days, and denied (as moot) the motion for relief from the stay. CBASS conducted the forecl osure sale at about 11:00 a.m., selling the property to a third party.

At 12:34 p.m., Baldwin pro se filed a mo tion objecting to the expedited hearing and requesting rescission of the sale. He a lleged, “I have not b een served in person since I have not been home in months. I ha ve been out of town on business.” Further, he said that he “just received this no tice today March 10, 2006, at 10:45 a.m. by United States mail at my residence.” No affi davits were attached to the motion, which was not verified. Baldwin did attach a copy of the envelope, which is correctly-3- addressed but has no discernible postage date. On March 15, the bankruptcy court denied Baldwin’s motion as moot because the “motion was not filed until after the hearing was held” (by a form en try on the face of the motion).

On March 23, 2006, Baldwin filed another pro se motion requesting reinstatement of the Chapter 13 case and re scission of the sale , due to inadequate notice. In this motion, Baldw in alleged that the mailed no tice arrived at his residence at 10:30 a.m. on March 9. Ag ain, no affidavits were attached to the motion, which was not verified. On March 28, the bankruptcy court denied that motion because it was “filed more than ten days from date of dismissal” (by a fo rm entry on the face of the motion). See Fed. R. Bankr. P. 9023 ; Fed. R. Civ. P. 59(e)

. Baldwin appealed to the BAP, which agreed that the March 9 filing was untimely and therefore did not consider it. However, in contrast to the bankruptcy court, the BAP characteri zed Baldwin’s March 23 fili ng as a motion under Federal Rule of Civil Procedure 60(b)(4). See Fed. R. Bankr. P. 9024 . Rule 60(b)(4) motions are not subject to a ten-day lim itation like that applied by the bankruptcy
court. See Fed. R. Civ. P. 60(c)(1)

. The BAP limited its consideration to whether the bankruptcy court should have vacated the dismissal order due to a lack of due process. The BAP held that the mailed notice wa s reasonable and appropriate under the circumstances of the case and thus satisfied due process. In reaching this conclusion, the BAP presumed that CBASS mailed noti ce on March 3 and atte mpted to personally serve Baldwin. Baldwin appeals.

This court, applying the same standardas the BAP, reviews “the bankruptcy court’s findings of fact for clear erro r and its conclusions of law de novo.” In re Papio Keno Club, Inc. , 262 F.3d 725, 728-29 (8th Cir. 2001). “If we conclude that the bankruptcy court’s findings are silent or ambiguous as to an outcome determinative fact question, we may not make our own findings but must remand the-4- case to the bankruptcy court for the necessary factual determination.” Sholdan v. Dietz , 108 F.3d 886, 888 (8th Cir. 1997).

Rule 60(b)(4) provides that a court ma y relieve a party from a final judgment if it is void. Fed. R. Civ. P. 60(b)(4)

. “A judgment is void if the rendering court lacked jurisdiction or acted in a manne r inconsistent with due process.” Kessler v. Crichton , 221 F.3d 1342, 1342 (8th Cir. 2000) (unpublished; per curiam). See also Chambers v. Armontrout , 16 F.3d 257, 260 (8th Cir. 1994). “[R]elief from a void judgment pursuant to Rule 60(b)(4) is not discretionary.” Hunter v. Underwood , 362 F.3d 468, 475 (8th Cir. 2004) (internal citations omitted).

The Due Process Clause of the Fifth Am endment requires that, before property can be taken, notice and an opportun ity for a hearing be provided. Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 313 (1950). In general, notice must be “reasonably calculated, under all the circumstan ces, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314. The Due Process Clause does not require that an interested party actually receive notice. Crum v. Vincent , 493 F.3d 988, 993 (8th Cir. 2007).

“Where the Bankruptcy Code and Bankruptcy Rules specify the notice required prior to entry of an order, due process ge nerally entitles a party to receive the notice specified before an order binding the party will be afforded preclusive effect.” In re Banks , 299 F.3d 296, 302 (4th Cir. 2002). See also In re Ruehle , 412 F.3d 679, 683- 84 (6th Cir. 2005); In re Hanson , 397 F.3d 482, 485-86 (7th Cir. 2005). Under bankruptcy law, a court can dismiss a Chap ter 13 case only after notice and a hearing, which means “after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances.” 11 U.S.C. §§ 102(1)(A) , 1307(c)

. This bankruptcy court’s local rule provides: “When a motion is heard on an expedited or emer gency basis . . . th e motion and notice of hearing must be served as expeditiously as possible (e.g. by personal service or-5- electronic means) upon opposing counsel or upon the opposing party if not represented by counsel, and any other necessary parties.” Bankr. E.D. Mo. R. 9060- 1(C) , citing Bankr. E.D. Mo. R. 9013-2

. In the present case, the bankruptcy c ourt denied Baldwin’s March 23 motion because it was filed more thanten days after dismissal. A Rule 60(b)(4) motion must be made within a reasonable time, not necessarily within ten days. See Fed. R. Civ. P. 60(c)(1)

. Clearly, the bankruptcy court did not view this motion as one under Rule 60(b)(4). True, Baldwin did not label hi s motion by referencing any particular rule of civil procedure. See Sanders v. Clemco Indus. , 862 F.2d 161, 164-65, 168-69 (8th Cir. 1988) (discussing differences in characterizing unlabeled motion for reconsideration as either under Rule 59(e) or Rule 60(b)). Pro se motions are, however, to be construed liberally. See Stone v. Harry , 364 F.3d 912, 915 (8th Cir. 2004); Miller v. Norris , 247 F.3d 736, 739 (8th Cir. 2001).

In his March 23 motion, Baldwin alleges:

Movant was required by L.B.R. 9013-2, to have served the Motion for Expedited Hearing by personal service or electronic means upon the opposing counsel or upon the opposing party if not represented by counsel. Debtor was never served in person or electronically.

Baldwin conspicuously alleged on the first pa ge of that motion that “he did not receive proper notice of hearing.” See Spinar v. South Dakota Bd. of Regents , 796 F.2d 1060, 1062 (8th Cir. 1986) (characterization of unlabeled motion for reconsideration depends to some extent on the substance of the motion). Constitutionally defective notice would render the underlying judgment void. See Kessler , 221 F.3d at 1342; In re Hairopoulos , 118 F.3d 1240, 1246 (8th Cir. 1997). The bankruptcy court should have characterized the March 23 motion as a Rule 60(b)(4) motion and therefore erred in denying it for untimeliness.-6- The issue then becomes wh ether the error was harmle ss, based on the facts of the case. See In re Interco, Inc. , 186 F.3d 1032, 1034 (8th Cir. 1999) (even if earlier notice were required by bankruptcy rule, due process was not violated by the notice that debtor in fact received); In re New Concept Housing, Inc. , 951 F.2d 932, 937-39 (8th Cir. 1991) (applying harmless error anal ysis to violations of bankruptcy notice requirements). Based on the r ecord facts, even if the bankruptcy court had properly characterized the motion as under Rule 60(b )(4), this court cannot determine whether the bankruptcy court would have denied the motion (by finding that CBASS complied with constitutional notice requirements). At the expedited hearing, the bankruptcy court received no evidence and then adopted facts that do not mention notice. The bankruptcy court dismissed Baldwin’s Marc h 23 motion as untimely without any factfinding. As a result, the only agreed f act regarding notice is that CBASS’s counsel mailed an envelope to Baldwin (which doe s not contain a discernible postage date). All other information regarding notice is from allegations by CBASS’s counsel or Baldwin. The fact that notice was mailed at some point is not sufficient for this court to determine whether notice satisfied due process, and consequently whether the bankruptcy court’s error was harmless.

The denial of the March 23 motion is reversed, and the case remanded to the bankruptcy court for further proceedings consistent with this opinion.

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