EMC Mortgage Corporation v. Mechem, 3:11-cv-00025

Mechem filed bankruptcy and initiated an adversary proceeding to fix a deed of trust on Lot #5.
EMC mistakenly described the security land as Lot #5 instead of Lot #2.
Bankruptcy court dismissed the adversary proceeding for failure to prosecute in Feb. 2005.
EMC later sought to foreclose on Lot #5 and appealed the bankruptcy orders.
This Court reversed the bankruptcy court’s order ordering a new adversary proceeding, finding waiver and finality/claim preclusion issues.
Appellees moved for rehearing/reconsideration; the motion was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether EMC waived res judicata by not raising it in 2006	Mechem (Mechem) argues no waiver; 2006 action lacked res judicata issues	EMC argues waiver occurred due to failure to raise res judicata	Waiver argument rejected; no waiver found
Whether the bankruptcy order denying a new adversary proceeding was a final adjudication on the merits	Mechem contends dismissal was final on merits	EMC contends dismissal was not final or merits-based	Dismissal deemed final/adjudication on merits; not a basis for rehearing

In re Fowler, 394 F.3d 1208 (9th Cir. 2005) (adopts Rule 8015 standard from Rule 40(a))
Olsen v. United States, 162 B.R. 831 (D. Neb. 1993) (bankruptcy/Rule 8015 rehearing standards)
Frank v. Michigan, 263 B.R. 538 (E.D. Mich. 2000) (rehearing standards in Bankruptcy court)
In re Stoecker, 179 B.R. 532 (N.D. Ill. 1994) (rehearing standards; finality considerations)
McVay v. Otero, 371 B.R. 190 (W.D. Tex. 2007) (application of Rule 8015; standard for rehearing)