516 B.R. 177
1st Cir. BAP2014Background
- Debtors appeal three bankruptcy orders: November 15, 2013 denial of motion to vacate, November 15, 2013 grant of reconsideration and dismissal with bar to refile, and January 8, 2014 denial of motion to vacate the November 15 orders.
- Prior to this case, Debtors had three prior Chapter 13 cases that were dismissed for failure to comply with court orders and requirements; they filed a fourth petition on July 30, 2013.
- BPPR held a secured claim and sought in rem stay relief and dismissal with a two-year bar; Debtors disputed the filings and sought to convert to Chapter 7.
- October 21, 2013 Dismissal Order dismissed the case for failure to pay the filing fee; BPPR moved for reconsideration and Debtors moved to vacate that dismissal.
- BPPR’s motions were granted and the case was dismissed with a two-year bar on refiling; Debtors argued changed circumstances due to a conversion motion.
- Debtors filed notices of appeal on January 21, 2014; the court determined timeliness for some orders and jurisdiction for one.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the November 15, 2013 orders timely appeals? | Debtors argue appellate timeliness; all three orders are final. | BPPR contends some orders are untimely under Rule 8002. | Appeal timely only as to January 8, 2014 order; the November 15, 2013 orders are untimely. |
| Whether relief under Rule 60(b) was appropriate for a change in circumstances | Debtors contend conversion to Chapter 7 constitutes change in circumstance warranting relief. | BPPR argues no justification under Rule 60(b)(6) and that conversion was infeasible after dismissal. | Rule 60(b) relief denied; change-in-circumstance argument fails. |
| Did the bankruptcy court abuse its discretion in denying vacatur under Rule 60(b) | Debtors claim the court should vacate given new circumstances and conversion motion. | BPPR asserts no basis to vacate; petition and bad-faith findings support denial. | No abuse; January 8, 2014 order affirmed as to denial of vacate. |
Key Cases Cited
- In re Garcia Matos, 478 B.R. 506 (1st Cir. BAP 2012) (finality when underlying order is final and motion for reconsideration disposed)
- In re Franklin, 445 B.R. 84 (Bankr.D. Mass. 2011) (Rule 60(b) relief requires showing reason to vacate; extraordinary relief)
- Teamsters, Chauffeurs, Warehousemen & Helpers Union Local No. 59 v. Superline Transp. Co., 953 F.2d 17 (1st Cir. 1992) (precondition to Rule 60(b) relief: movant must show not an empty exercise)
- In re Amey, 314 B.R. 864 (Bankr.N.D. Ga. 2004) (in rem relief as remedy when debtor serially files to invoke stay)
- In re Lord, 325 B.R. 121 (Bankr.S.D.N.Y. 2005) (in rem relief addresses stay abuse in foreclosure contexts)
- In re Perry Hollow Mgmt. Co., 297 F.3d 34 (1st Cir. 2002) (timeliness and tolling of appeal periods under Rule 8002)