                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-1152
                                     ___________

United States of America,                  *
                                           *
             Plaintiff-Appellee,           *
                                           *
      v.                                   *   On Appeal from the United
                                           *   States District Court for the
Stute Company, Inc.,                       *   District of Nebraska.
                                           *
             Defendant-Appellant;          *
                                           *
S.R. Livestock, Inc.;                      *
State Bank of Benkelman, Nebraska;         *
A. M. Hahn,                                *
                                           *
             Defendants.                   *

                                     ___________

                              Submitted: August 26, 2004
                                 Filed: March 30, 2005
                                  ___________

Before LOKEN, Chief Judge, BEAM, and WOLLMAN, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

       The United States brought an action to foreclose a mortgage Stute Company,
Inc. (Stute) had given it to secure a loan. The district court granted the United States'
motion for summary judgment, entered judgment, decreed foreclosure of the
mortgage, and ordered a sale of the property. Stute appeals. We dismiss the appeal
insofar as Stute has not timely appealed the summary-judgment ruling and vacate and
remand with instructions to dismiss because the remaining issues are now moot.

I.    BACKGROUND

       In April 1980, the United States, through the Farmers Home Administration,
lent money to Stute. As security, Stute gave the United States a real-estate mortgage
covering land located in Dundy County, Nebraska. Stute fell into default on the loan.
In July 2001 the United States filed an action to foreclose the mortgage to satisfy the
debt.

       The district court granted the United States' motion for summary judgment,
decreed foreclosure, and ordered that the property be sold after a twenty-day
redemption period had elapsed. Stute then filed various motions. Some sought
amendments to the court's judgment, and they are detailed below. Another sought to
stay the foreclosure sale under Nebraska law. The district court denied the motion
to stay the foreclosure sale. The United States sought and obtained an order of sale
from the district court clerk, scheduling the sale for February 11, 2004. Stute paid the
underlying indebtedness it owed to the United States on February 10, 2004. As a
result, the United States cancelled the sale.1 Stute's appeal questions the district
court's grant of summary judgment, its denial of Stute's motion to stay the foreclosure
sale, and the order of sale issued by the clerk of the district court.




      1
       The United States also asked the district court to vacate its prior judgments
and dismiss the action. That motion, however, was presented to the court after the
notice of appeal had been filed. Thus, the district court found it had no jurisdiction
to consider the motion and forwarded the motion to us.

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II.   ANALYSIS

      A.     Summary Judgment

       Stute claims the district court erred in granting the United States' summary-
judgment motion because the debt secured by the mortgage was not collectible and,
thus, the mortgage was not enforceable. The United States argues that we lack
jurisdiction, claiming Stute filed its notice of appeal too late to present that question.
We agree. A party must file a notice of appeal with the district court within sixty
days of the order or judgment from which the appeal is taken when the United States
is a party. Fed. R. App. P. 4(a)(1)(B). "Timely filing is not merely a procedural
requirement, but 'is mandatory and jurisdictional.'" United States v. Fitzgerald, 109
F.3d 1339, 1342 (8th Cir. 1997) (quoting Bartunek v. Bubak, 941 F.2d 726, 728 (8th
Cir. 1991)). Stute filed its notice of appeal on January 14, 2004. The district court
entered judgment on October 10, 2003, amended it on October 15, 2003 (Amended
Judgment), amended it again on November 5, 2003 (Second Amended Judgment),
and amended it a final time by order on November 25, 2003 (November 25 Order).
The earliest district court order that is within the Rule 4(a) time frame is the
November 25 Order. See Fed. R. App. P. 4(a)(1)(B) (notice of appeal must be filed
within sixty days of the judgment appealed). If the Rule 4 clock began to run upon
the original entry of judgment, the Amended Judgment, or the Second Amended
Judgment then Stute's appeal was untimely and we lack jurisdiction.

        The district court amended its judgments because State Bank of Benkelman
(SBB) purportedly had a lien on the mortgaged property. On October 10, 2003, when
the first judgment was entered, the amount of SBB's claim, if any, remained unknown.
The district court ordered SBB to prove up the amount of its lien within ten days.
SBB filed a "Motion for Judgment" on October 14, 2003. Construing the motion as
one to make further factfinding under Federal Rule of Civil Procedure 52(b), the
district court granted the timely motion and entered the Amended Judgment on

                                           -3-
October 15, 2003, to include a debt to SBB for approximately $58,000 and a lien for
that amount on the subject property.

       On October 16, 2003, Stute filed two sets of papers that attacked SBB's debt
and lien and argued that SBB's claim had been extinguished in a prior bankruptcy. On
October 22, 2003, the district court construed Stute's papers as a motion to alter or
amend the judgment and ordered SBB to file a brief in response. On October 30,
2003, SBB filed a brief claiming the amount of the debt was correct but that it indeed
had no lien on the property because the bankruptcy court's decree had extinguished
it. The district court accordingly granted Stute's October 16 motions and entered the
Second Amended Judgment on November 5, 2003.

       The Second Amended Judgment appropriately stated that SBB had no lien on
the subject property, but it retained the language about the debt that Stute purportedly
owed SBB. This language posed problems to Stute when it sought to borrow money
to pay the debt that the United States was seeking to satisfy through the foreclosure.
So Stute contacted SBB and requested that it clarify the court's understanding of the
bankruptcy decree, which, according to Stute, had extinguished the debt as well. On
November 14, 2003, SBB filed a "Second Brief in Response to Memorandum and
Order Dated October 22, 2003" (Second Brief). In that brief, SBB acknowledged that
Stute owed it no money. On November 24, 2003, Stute filed a motion entitled, in
relevant part, "Renewed Motion that the United States District Court Stay Its Decree
of Sale in Favor of the United States Until the Court Has Once Again Amended Its
Final Decree and Order such that the Third Amended Order Indicates that the State
Bank of Benkelman Has No Remaining Claim Against the Stute Company" (Renewed
Motion). The district court granted that motion in its November 25 Order and
amended the Second Amended Judgment to say that Stute owed nothing to SBB.

     Stute had sixty days from the disposition of the United States' summary-
judgment motion to file his notice of appeal. Fed. R. App. P. 4(a)(1)(B). Certain

                                          -4-
post-judgment motions filed under the Federal Rules of Civil Procedure lengthen the
time within which the notice of appeal must be filed. Those motions must be "timely
file[d]" by a party. Fed. R. App. P. 4(a)(4)(A). SBB's October 14 motion and Stute's
October 16 motions, all of which were construed as motions under Rule 52(b), were
filed within ten days of the of the judgments they sought to amend. Thus, they were
timely, Fed. R. Civ. P. 52(b), and therefore the time to appeal began to run "for all
parties from the entry of the order disposing of the last such remaining motion." Fed.
R. App. P. 4(a)(4)(A). The last order disposing of those timely motions was entered
on November 5, 2003.

       The United States argues that the time for appeal began to run on November
5, 2003, and therefore Stute's January 14, 2004, notice of appeal was untimely
because it was filed more than sixty days after the order was entered. Stute argues
that SBB's November 14 Second Brief constituted a motion attacking the judgment
under Rule 59(e), and that, as such a motion, it was timely because it was filed within
ten days of the November 5 Second Amended Judgment. If SBB's Second Brief were
a Rule 59(e) motion, we would agree that Stute's January 14 notice of appeal was
timely because it was filed within sixty days of the November 25 Order that disposed
of that motion. But SBB's Second Brief cannot be construed as a motion. Motions
under the Federal Rules of Civil Procedure must, among other things, "set forth the
relief or order sought." Fed. R. Civ. P. 7(b)(1). The closest this brief comes to such
a statement is, "[t]o the extent the Decree in this case needs to be modified to satisfy
potential lenders of the Defendants, State Bank of Benkelman has no objection to
such modification," and "State Bank of Benkelman has no objection to any further
amendment to the Decree which will satisfy the Court and the other parties." SBB's
Second Brief does not seek any relief or order. Cf. Riley v. N.W. Bell Tel. Co., 1
F.3d 725 (8th Cir. 1993) (dismissing appeal for want of jurisdiction because the
appellant's motion to amend the judgment failed to comply with Rule 7).




                                          -5-
       In fact, neither the district court nor Stute understood the Second Brief as a
motion. Stute filed its Renewed Motion on November 24 to correct the error, and the
district court ordered the Second Amended Judgment amended based on Stute's
Renewed Motion.2 That cumbersomely titled motion—even if we construe it as a
Rule 52(b), Rule 59(e), or a Rule 60(b) motion—sought an amendment to the court's
Second Amended Judgment that was filed on November 5. But it was not filed on or
before November 19, 2003—the final day of the ten-day period. See Fed. R. App. P.
4(a)(4)(A)(ii, iv, vi), 26(a); Fed. R. Civ. P. 6(a). Thus, that Renewed Motion did not
toll the time in which Stute could file its notice of appeal, and the November 5
Second Amended Judgment started the clock for Rule 4 purposes. We are therefore
without jurisdiction to consider the errors Stute assigns to the district court's grant of
summary judgment—that the mortgage was unenforceable because the underlying
debt was unenforceable. Fitzgerald, 109 F.3d at 1341-42.

      B.     Motion for Stay

       Stute's notice of appeal, however, lists more than the district court's grant of
summary judgment. Specifically, Stute appeals the district court's denial of its motion
to stay under Nebraska law. That motion was denied on December 12, 2003. So
Stute's appeal is timely with regard to the disposition of that motion.

       Stute claims it was entitled to a nine-month stay under section 25-1506 of the
Nebraska Revised Statutes. Under section 25-1506, "[t]he order of sale on all decrees
for the sale of mortgaged premises shall be stayed for the period of nine months from


      2
       Similarly, it would be too much of a stretch to conclude that Stute's October
16 motion was a "remaining motion" for purposes of Rule 4(a)(4)(A). The November
5 order disposed of that motion and Stute recognized the necessity of the further
motion it made on November 24. And the district court did not base its November
25 Order on the October 16 motion.


                                           -6-
and after the rendition of such decree." If this provision applies to the Nebraska
mortgage at issue, then a stay should have been entered. The United States responds
by arguing that this provision of Nebraska law was validly waived by Stute in the
mortgage. See United States v. Jacobsen, 319 F.3d 323, 324 (8th Cir. 2002) (per
curiam) (finding waiver valid under United States v. Birchem, 100 F.3d 607, 609 (8th
Cir. 1996)). However, the waiver provision the United States relies on only waives
"any right of redemption . . . following any foreclosure sale." Section 25-1506 does
not grant the mortgagor any right of redemption, and the stay it allows the defendant-
mortgagor is, by definition, pre-sale. Thus, this argument misses the mark.

       However, many provisions of state law are preempted when the United States
acts as mortgagee. See United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979).
In any event, Stute has made the issue of a stay under state law moot. When events
occur that leave the appellate court with no remedial power, the appeal is moot.
Church of Scientology v. United States, 506 U.S. 9, 12 (1992); Fitzgerald, 109 F.3d
at 1342. After the district court entered its Second Amended Judgment and denied
the motion to stay, Stute did not seek a stay pending appeal. Rather, it paid the debt
that the United States was seeking to satisfy through the mortgage. Stute now claims
that the district court erred by refusing to stay the foreclosure sale for nine months
under Nebraska law. But the foreclosure sale has not occurred, nor will it occur. The
United States cannot request an order of sale now that it has accepted payment, and
we do not believe we have the power to direct a district court to stay a sale that will
not occur. Thus, the dispute over the stay has become moot.

      Stute suggests that we order the United States to return the money Stute paid
to avoid the foreclosure sale. If we were to order the money returned, a foreclosure
sale would be inevitable, and a stay would be within a court's power to issue. But we
have no power to order the money returned. Stute cites a Nebraska case for the
proposition that a judgment debtor who pays a judgment to prevent execution on his
property does not thereby divest himself of the ability to pursue an appeal. While that

                                         -7-
premise is correct, Tungseth v. Mut. of Omaha Ins. Co., 43 F.3d 406, 409 (8th Cir.
1994), Stute's case is quite distinguishable. When a party pays a judgment that is
later invalidated, restitution remains an available and appropriate remedy because the
payee has no right to the payment made under the invalidated judgment. The
availability of that remedy keeps the dispute from becoming moot, even after
payment. Had the mortgage here been unenforceable, the United States would not be
entitled to the payment Stute made, restitution would be an available remedy, and the
availability of that relief would keep the enforceability question from becoming moot.
But we do not have the merits of the summary-judgment ruling—that which settled
the enforceability question—before us because we lack jurisdiction to consider that
issue. See ante. Thus, the district court's ruling on the validity of the debt underlying
the mortgage, and therefore the enforceability of the mortgage, is settled as the law
of the case. In re Design Classics, Inc., 788 F.2d 1384, 1386 (8th Cir. 1986). So the
United States was and is legally entitled to the payment it accepted. This remains true
even if the foreclosure sale should have been stayed. We cannot order the United
States to refund a payment to which it was legally entitled. Thus, restitution is not an
available remedy, and the question whether a stay should have issued remains moot
because we have no way of correcting the alleged error that Stute presents. By
choosing to pay the United States—rather than, for instance, posting a supersedeas
bond—Stute limited our remedial power and thereby mooted the stay issue.3




      3
        Stute has also brought a third party's rights into this case. Stute sold its
interest in the property to Sitzman-Mitchell & Company, giving it a deed, and
retained an option to repurchase the property. Stute has given us no information as
to the terms of the option. In this regard, ordering the United States to pay money
back to Stute, even though (1) we have no assurances that Stute will reacquire the
property and (2) we are unsure of a court's ability to order Stute and the absent third
party to consummate such a transaction, implicates the rights of a third party that is
not before the court. This further supports our mootness determination. See Matter
of Magnes, 29 F.3d 1034, 1042-43 (5th Cir. 1994).

                                          -8-
       C.     Order of Sale

       Finally, Stute asserts as error the order of sale issued by the district court clerk.
Stute raised this error before the district court in its November 24 Renewed Motion.
The district court denied this part of the motion on November 25, 2003. According
to Stute, the order of sale the clerk issued was invalid because it was issued under the
October 15, 2003, Amended Judgment, which was superseded by the Second
Amended Judgment on November 5, which was amended by the November 25 Order.
The order of sale was never executed by the United States Marshals because the sale
was cancelled by the United States after Stute's payment. Even if the order of sale
was deficient, the United States' action accorded Stute the relief we would be able to
give it. Thus, this issue is also moot. See McMillan v. Chief Judge, Circuit Ct. of
Greene County, 711 F.2d 108, 109 (8th Cir. 1983).

III.   CONCLUSION

       Accordingly, we vacate the judgments of the district court that were properly
appealed and remand with directions to dismiss the motions relating to those items
as moot. CIA v. Holy Spirit Ass'n for the Unification of World Christianity, 455 U.S.
997 (1982) (mem. order). The appeal is dismissed with regard to Stute's untimely
appeal of the district court's summary-judgment ruling. We return the United States'
motion to vacate and dismiss to the district court. If the district court chooses to
entertain the motion—which is premised on the impact of Stute's payment of the
underlying indebtedness—the United States should inform the district court whether
it has made and recorded the appropriate release of its interest in the subject property.
                         ______________________________




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