            United States Bankruptcy Appellate Panel
                          FOR THE EIGHTH CIRCUIT

                                     ______

                                No. 02-6047WM
                                    ______

In re: Carla Mae Wilson                *
                                       *
      Debtor.                          *
                                       *
Carla Mae Wilson,                      *
                                       *
      Debtor-Appellant,                *   Appeal from the United States
                                       *   Bankruptcy Court for the Western
            v.                         *   District of Missouri
                                       *
John C. Reed1,                         *
                                       *
      Trustee-Appellee                 *

                                    ______

                          Submitted: October 8, 2002
                           Filed: October 21, 2002
                                   ______

Before KRESSEL, SCHERMER and DREHER, Bankruptcy Judges.
                             ______

KRESSEL, Bankruptcy Judge.




      1
       Reed is a nominal party only. He did not participate in proceedings in the
bankruptcy court or on appeal.
      Carla Mae Wilson appeals from the bankruptcy court order denying her
“motion to reinstate” her chapter 7 bankruptcy case. Because we conclude the
bankruptcy judge erred in not granting the motion, we reverse and remand.

                                   BACKGROUND

       On August 17, 2002, Carla Mae Wilson filed a voluntary chapter 7 bankruptcy
petition in the Western District of Missouri. On that same date, John C. Reed was
appointed interim trustee. On August 23, 2002, the bankruptcy court dismissed the
debtor’s case sua sponte because the debtor filed in the improper district.2 On August
27, 2002, the debtor filed a Motion to Reinstate Case.3 On August 28, 2002, the
bankruptcy court denied the debtor’s motion. The debtor filed a timely appeal from
this order but did not appeal the dismissal order itself.

                                    DISCUSSION
                                  Standard of Review

      “We review a bankruptcy court’s conclusions of law de novo and its factual
findings under the clearly erroneous standard.” Merchants Nat’l Bank of Winona v.
Moen (In re Moen), 238 B.R. 785, 790 (B.A.P. 8th Cir. 1999) (quoting Sinclair Oil
Co. v. Jones (In re Jones), 31 F.3d 659, 661 (8th Cir. 1994)); First Nat’l Bank of
Olathe, Kan. v. Pontow, 111 F.3d 604, 609 (8th Cir. 1997).




      2
          The debtor lives in the Eastern District of Missouri.
      3
         Since the rules do not recognize any such motion, we treat the motion as one
for relief from the dismissal order under Fed. R. Civ. P. 52, 59 or 60.
                                            2
                           SUA SPONTE DISMISSAL

      Venue of bankruptcy cases is addressed in 28 U.S.C. § 1408 and states:

            Except as provided in section 1410 of this title, a case
            under title 11 may be commenced in the district court for
            the district–
            (1) in which the domicile, residence, principal place of
            business in the United States, or principal assets in the
            United States, of the person or entity that is the subject of
            such case have been located for the one hundred and eighty
            days immediately preceding such commencement, or for a
            longer portion of such one-hundred-and-eighty-day period
            than the domicile, residence, or principal place of business
            in the United States, of such person were located in any
            other district; or
            (2) in which there is pending a case under title 11
            concerning such person’s affiliate, general partner, or
            partnership.

28 U.S.C. § 1408. Dismissal or transfer of a bankruptcy case filed in an improper
district is discussed in Rule 1014(a)(2) which states:

            If a petition is filed in an improper district, on timely
            motion of a party in interest and after hearing on notice to
            the petitioners, the United States trustee, and other entities
            as directed by the court, the case may be dismissed or
            transferred to any other district if the court determines that
            transfer is in the interest of justice or for the convenience
            of the parties.

Fed. R. Bankr. P. 1014(a)(2).




                                          3
       The debtor argues that for a case to be dismissed or transferred because it was
filed in the improper district, there must first be a timely motion filed by a party in
interest, i.e., the bankruptcy court lacks the authority to proceed sua sponte. The
debtor further argues that she is entitled to a hearing before her case is dismissed. The
debtor cites Bryan v. Land (In re Land), 215 B.R. 398 (B.A.P. 8th Cir. 1997)4 as well
as Minkes v. LaBarge (In re Minkes), 237 B.R. 476 (B.A.P. 8th Cir. 1999) to support
these arguments.

       We disagree with the first proposition, but agree with the second. In Minkes,
which specifically discusses the sua sponte dismissal issue, we noted that Congress
amended 11 U.S.C. § 105(a) to provide that the requirement of “a request of a party
in interest” can be obviated, and the bankruptcy court may proceed sua sponte to
enter orders to enforce or implement court orders or rules, or to prevent an abuse of
process. In re Minkes, 237 B.R. at 478 n. 2. Thus, the bankruptcy court did have the
right to proceed sua sponte.

       However, we also held in Minkes that 11 U.S.C. § 105(a) does not dispense
with the requirement of notice and a hearing. Id. Although the term “after notice and
hearing” does not always require an actual hearing to occur, it does require
appropriate notice and an appropriate opportunity for a hearing.5 See 11 U.S.C. §
102(1). Such notice and an opportunity for a hearing would have allowed the debtor
to present evidence to show that venue was proper. An opportunity for a hearing
would also allow the debtor to try to convince the court to exercise its discretion to

      4
         While Land is a venue case, the issue in that case was one of timeliness in
filing a motion to change venue, not whether the bankruptcy judge sua sponte could
dismiss the bankruptcy case, which is the issue we deal with in this case.
      5
        For example, the procedure approved in Minkes would also be appropriate
here. A notice from the clerk that the case will be dismissed or transferred unless the
debtor requested a hearing would satisfy the requirements of 11 U.S.C. § 102(1) and
Fed. R. Bankr. P. 1014(a)(2).
                                           4
keep venue in the Western District of Missouri, and would allow the debtor to argue
whether dismissal or transferral of the case would be preferable.

                                 CONCLUSION

      For the foregoing reasons, we reverse the bankruptcy court’s denial of the
debtor’s motion to reinstate her chapter 7 bankruptcy case and remand for
proceedings consistent with this order.

A true copy.

               Attest:

                     CLERK, U.S. BANKRUPTCY APPELLATE
                     PANEL, EIGHTH CIRCUIT.




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