FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
April 15, 2015
NOT FOR PUBLICATION Blaine F. Bates
Clerk
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
IN RE MIRIAM ONYEABOR, also BAP No. UT-14-047
known as Mariam Onyeabor, also
known as Myriam Onyeabor,
Debtor.
MIRIAM ONYEABOR, Bankr. No. 11-24746
Chapter 7
Appellant,
v. OPINION *
CENTENNIAL POINTE PROPERTY
OWNERS’ ASSOCIATION and LEBR
ASSOCIATES, LLC,
Appellees.
Appeal from the United States Bankruptcy Court
for the District of Utah
Before NUGENT, SOMERS, and JACOBVITZ, Bankruptcy Judges.
SOMERS, Bankruptcy Judge.
Debtor Miriam Onyeabor, pro se, appeals two bankruptcy court orders that
denied her requests to reconsider an order converting her Chapter 13 case to
Chapter 7.1 This is Debtor’s second appeal attacking the conversion order that
*
This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and
issue preclusion. 10th Cir. BAP L.R. 8026-6.
1
The parties did not request oral argument, and after examining the briefs
and appellate record, the Court has determined unanimously that oral argument
(continued...)
was previously affirmed by this Court and the Tenth Circuit.2 In this appeal,
Debtor claims the bankruptcy court erred by: 1) refusing to extend the time to file
a motion under Federal Rule of Bankruptcy Procedure 90233 despite the court
clerk’s failure to comply with Rule 9022’s mandate to immediately serve notice
of the entry of an order denying reconsideration, 2) treating her motion as one
under Rule 60 and denying relief on the ground the motion merely revisited
previously rejected arguments, and 3) denying relief under Rule 60(b)(2), (b)(3)
and (d)(3) on the ground the evidence Debtor presented was insufficient to show
fraud on the court had occurred. After carefully reviewing the record, we
AFFIRM in part and DISMISS in part. 4
I. Factual Background
Detailed facts regarding the parties, their long litigation history, and the
bankruptcy case were set forth in the opinions deciding Debtor’s first appeal, 5 and
will not be repeated here except as relevant to our analysis.
In 2004, Centennial Pointe Property Owners’ Association (the “POA”) and
LEBR Associates, LLC (“LEBR”) (collectively “Appellees”) filed suit against
1
(...continued)
would not significantly aid in the determination of this appeal. See Fed. R.
Bankr. P. 8019(b)(3). The case is therefore ordered submitted without oral
argument.
2
Onyeabor v. Centennial Pointe Owners Ass’n (In re Onyeabor), BAP No.
UT-11-117, 2013 WL 819726 (10th Cir. BAP Mar. 6, 2013), aff’d, 535 Fed.
App’x 725 (10th Cir. 2013).
3
All future references to “Rule” refer to the Federal Rules of Civil
Procedure or the Federal Rules of Bankruptcy Procedure; those denominated in a
single or double digit are Civil Rules, and those denominated in the thousands are
Bankruptcy Rules.
4
Debtor’s Motion to Amend her appellate brief, filed on February 4, 2015, is
GRANTED.
5
Onyeabor, 2013 WL 819726 at *1-10; Onyeabor, 535 Fed. App’x at 726-
28.
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Debtor in state court for unpaid POA assessments.6 In 2007, the state court
granted judgment in favor of the POA only and awarded it $95,213.70 plus
interest. In 2010, the state court awarded the POA and LEBR jointly $7,916.11
for attorney’s fees incurred to remove a lien Debtor wrongfully filed against
LEBR’s property. Together, the 2007 and 2010 awards became liens on Debtor’s
property (the “Judgment Lien”).
Debtor filed a voluntary Chapter 13 petition on April 5, 2011, and a
Chapter 13 plan on April 21, 2011. The plan proposed sixty monthly payments of
$445 to the Chapter 13 Trustee and an unspecified monthly payment directly to
several creditors (who are not parties to this appeal) holding mortgages against
Debtor’s commercial and residential properties. The plan drew objections from
the Chapter 13 Trustee, the Salt Lake County (“SLC”) Treasurer, and Appellees,
who had jointly filed a proof of claim asserting secured claims totaling
$385,097.07 (POC #7).7 The Trustee complained about missing information,
procedural violations, and improper deductions. The SLC Treasurer objected to
the lack of a plan provision to pay for prepetition property taxes. Appellees
asserted Debtor’s plan was infeasible and filed in bad faith.
Appellees also filed a motion under 11 U.S.C. § 1307(c) to dismiss or
convert the case to Chapter 7. Debtor filed an objection to POC #7, contesting
whether the claim was secured and nondischargeable, whether the POA and LEBR
had standing to file it, and whether there was sufficient substantiation of the
6
LEBR was a member of the POA who advanced funds to the POA to cover
Debtor’s unpaid assessments, which Debtor has not paid since 2002.
7
That sum included the Judgment Lien, accrued interest, unpaid POA
assessments postdating the period covered by the Judgment Lien, and costs for
insurance, utilities, maintenance, repair, and collection accrued since July 30,
2010.
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amount owed in excess of the Judgment Lien. 8
On October 6, 2011, the bankruptcy court held a hearing on the motion to
dismiss or convert and on Debtor’s objection to POC #7. The bankruptcy court
granted the motion to convert and declared Debtor’s objection to POC #7 to be
moot (the “Conversion Order”). Specifically, the bankruptcy court found that:
1) the plan made no provision for payment of the Judgment Lien or unpaid
prepetition property taxes, 2) Debtor’s income was insufficient to support her
plan or even to pay the Judgment Lien, 3) although Debtor’s case had been
pending for six months, she had not addressed the Trustee’s objections or made
any effort to amend the plan, 4) Debtor’s bankruptcy filing was motivated by a
desire to avoid paying the POA and LEBR, 5) Debtor failed to articulate any
potentially feasible plan, 6) the plan was filed in bad faith, and 7) Debtor’s
objection to POC #7 was moot in light of the conversion.
Shortly thereafter, Debtor sought reconsideration of the Conversion Order,
arguing that the POA was not properly represented by counsel in the bankruptcy
proceedings (the “First Motion”). The bankruptcy court held another hearing and
denied the motion, finding that the POA was a legal entity and represented by
counsel. The court also pointed out that even if LEBR was not entitled to
advance claims in the bankruptcy proceeding, the POA was a judgment creditor
entitled to do so with respect to at least a minimum of $95,000 of the Judgment
Lien, which Debtor agreed was a secured claim. The court further stated it was
not the proper place to litigate Debtor’s contention that LEBR’s principals, the
“Railes,” had “hijacked” the POA by directing and controlling its actions in the
bankruptcy case despite the fact that LEBR had sold all of its Centennial Pointe
property before Debtor filed her bankruptcy petition.
8
See Onyeabor, 535 Fed. App’x at 727 (Tenth Circuit’s summary of
Debtor’s Objection to POC #7).
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Debtor appealed the Conversion Order and the order denying
reconsideration of that order to this Court, which affirmed the bankruptcy court’s
decisions.9 Debtor then appealed the BAP decision to the Tenth Circuit, which
likewise affirmed. 10
On April 7, 2014, two and a half years after the bankruptcy court decided to
convert Debtor’s case and six months after the Tenth Circuit affirmed that
decision in her first appeal, Debtor filed a Rule 60(b) motion to set aside the
Conversion Order and for a new trial, claiming she had discovered new evidence
that proved the law firm of Cohne, Rappaport, & Segal (“CRS”) was not
authorized to represent the POA and had therefore committed a fraud on the court
(the “Second Motion”).11 Appellees objected to the motion. 12 On June 17, 2014,
the bankruptcy court held a hearing at which Debtor appeared, and orally denied
the Second Motion, concluding: 1) Debtor could have obtained the new evidence
years earlier, 2) the new evidence did not clearly and convincingly show fraud or
misrepresentations by CRS, 3) there was no evidence that the alleged fraud
substantially interfered with Debtor’s ability to fully and fairly prepare for trial,
4) the new evidence would not have produced a different result, 5) the motion was
untimely for the claims under Rule 60(b)(2) and (b)(3), and 6) relief under Rule
60(d)(3) was not warranted.13 The court ordered Appellees’ counsel to prepare an
order that referenced its oral findings and conclusions. Two days later, on June
9
Onyeabor, 2013 WL 819726.
10
Onyeabor, 535 Fed. App’x 725.
11
Partial Transcript of June 17, 2014 Hearing on Motion to Set Aside Orders
(“June 17, 2014 Hr’g Tr.”) at 27-28, in 2nd Amended Appellant’s Appendix
(“App.”) at 168-69. CRS was the attorney of record for both the POA and LEBR,
who have jointly filed all pleadings in the bankruptcy case.
12
Neither a copy of the motion nor the objection to it was provided to us.
13
June 17, 2014 Hr’g Tr. at 27-33, in App. at 168-74.
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19, 2014, the court entered a written order denying the Second Motion to set aside
the Conversion Order (the “June 19 Order”).14 Inexplicably, neither a copy of the
June 19 Order nor notice of its entry was sent to Debtor until July 7, 2014, when
she called the bankruptcy court clerk (the “Clerk”) inquiring when the deadline to
file a motion for rehearing under Rule 9023 began and expired.
On July 10, 2014, Debtor filed a motion to set the date she actually
received notice of the June 19 Order as the determinative date when the time
began to run for her to file a motion under Rule 9023 (the “Motion to Set
Deadline”). On July 18, 2014, she filed a motion to set aside the June 19 Order
based on the Clerk’s failure to send her notice of the order’s entry (the “Third
Motion”).15 On August 27, 2014, the court held a hearing on these motions and
orally denied them, concluding that: 1) Rule 9006 prohibited the court from
enlarging the time to file a motion under Rule 59, and 2) the Third Motion simply
revisited arguments previously heard and rejected; thus relief under Rule 60(b)
was inappropriate.16 The court entered a written order denying both the Motion to
Set Deadline and the Third Motion on August 28, 2014 (the “August 28 Order”). 17
Debtor now appeals the August 28 Order and the June 19 Order. 18
14
Order Denying Debtor’s Motion to Set Aside the Order of October 12,
2011, in App. at 10-13.
15
Debtor did not provide us with a copy of this motion.
16
Partial Transcript of August 27, 2014 Hearing on Motions (“August 27,
2014 Hr’g Tr.”) at 14-15, in App. at 134-35.
17
Order Denying Debtor’s Amended Rule 59(e) Motion for Rehearing, in
App. at 8.
18
Debtor’s notice of appeal listed only the August 28 Order. Notice of
Appeal, in App. at 5-6. Her appellate brief, however, stated that she was
appealing the bankruptcy court’s decision of June 17 and 19, 2014 as well as the
August 28 Order. 2nd Amended Appellate Brief (“Appellant’s Br.”) at i, 1.
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II. Appellate Jurisdiction and Standard of Review
This Court has jurisdiction to hear timely-filed appeals from “final
judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,
unless one of the parties elects to have the district court hear the appeal. 19 Debtor
has timely filed a notice of appeal from the August 28 Order, which is a final
order for purposes of appeal.20 The parties have consented to this Court’s
jurisdiction by not properly electing to have the appeal heard by the United States
District Court for the District of Utah.21 This Court, therefore, has appellate
jurisdiction over this appeal. However, as explained below, Debtor’s notice of
appeal of the June 19 Order was not timely filed, so we do not have jurisdiction
over her appeal of that order.
This Court reviews orders denying relief under Rule 59 or Rule 60(b) for an
abuse of discretion.22 Under this standard, a trial court’s decision will not be
reversed unless its ruling is based on an erroneous conclusion of law or relies on
clearly erroneous factual findings.23 Whether bankruptcy court proceedings have
19
28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002.
20
In re Ewing, Nos. UT-07-074, 05-29650, 2008 WL 762458, at *1 & n.4
(10th Cir. BAP Mar. 24, 2008) (order denying Rule 60(b) relief is final,
appealable order, citing Stouffer v. Reynolds, 168 F.3d 1155 (10th Cir. 1999)).
21
28 U.S.C. § 158(c)(1); Fed. R. Bankr. P. 8001(e) (now at Fed. R. Bankr. P.
8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001-1 (now at 10th Cir. BAP
L.R. 8005-1, effective Dec. 1, 2014). Debtor had requested the appeal be heard
by the district court, but it was denied because her election was not filed
separately from her notice of appeal as required by the rules that were in effect at
that time. See Onyeabor v. Centennial Pointe Owners Ass’n, BAP No. UT-14-047
(10th Cir. BAP Sept. 11, 2014) (Order Denying Election to U.S. District Court).
22
Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1287 (10th Cir. 2003)
(order denying Rule 59(e) motion reviewed for abuse of discretion); Servants of
the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000) (denial of Rule 60(b)
motion reviewed for abuse of discretion).
23
Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013).
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violated a party’s due process rights is a legal question reviewed de novo. 24 De
novo review requires an independent determination of the issues, giving no
special weight to the bankruptcy court’s decision. 25
III. Analysis
Debtor raises two issues in this appeal: 1) the bankruptcy court denied her
due process when it treated the Third Motion as an untimely Rule 59 motion; and
2) the bankruptcy court erroneously denied the Second Motion by concluding she
had failed to present sufficient evidence to establish under Rule 60(b)(2), (b)(3),
and (d)(3) that the Conversion Order had been obtained by a fraud on the court.
We begin our analysis with a review of the rules governing motions to reconsider
and the enlargement of time to do a prescribed act. We then address Debtor’s
arguments in the order she made them.
A. Motions to Reconsider in General
Motions to reconsider are not specifically mentioned in the Federal Rules
of Civil or Bankruptcy Procedure. The rules allow a litigant subject to an adverse
judgment to file either a motion to alter or amend the judgment pursuant to Rule
59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Rule
59(e) and Rule 60(b) are made applicable to bankruptcy proceedings by Rules
9023 and 9024, respectively.26 Although they may overlap, these two rules are
distinct. 27
24
State Bank v. Gledhill (In re Gledhill ), 76 F.3d 1070, 1083 (10th Cir.
1996).
25
Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991).
26
We will refer to the type of reconsideration motion by the Civil Rule
numbers, Rule 59 and Rule 60.
27
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); 11
Charles Alan Wright, et al., Federal Practice & Procedure § 2817 (3d ed. 2012)
(“There is a considerable overlap between Rule 59(e) and Rule 60.”).
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Generally, which rule applies to a motion depends on when the motion is
filed.28 Rule 9023 states, “A motion for a new trial or to alter or amend a
judgment shall be filed, and a court may on its own order a new trial, no later
than 14 days after entry of judgment.”29 In contrast, Rule 9024 adopts the time
parameters of Rule 60(c)(1), which provides that a motion for relief from
judgment must be filed within a reasonable time, and, for certain grounds, within
one year after entry of the judgment. Ordinarily, if a motion to reconsider is filed
within Rule 9023’s time limitation, it is treated as a Rule 59(e) motion; if it is
filed more than fourteen days after entry of judgment, it is treated as a motion
under Rule 60(b). 30
It is important to determine whether a motion for reconsideration is brought
under Rule 59 or 60 because the former tolls the time to file an appeal, while the
latter generally does not.31 Generally, “an appeal from the denial of a motion to
reconsider construed as a Rule 59(e) motion permits consideration of the merits of
the underlying judgment, while an appeal from the denial of a Rule 60(b) motion
does not itself preserve for appellate review the underlying judgment.” 32
28
Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005).
29
Fed. R. Bankr. P. 9023 (emphasis added). Rule 9023 adopts Rule 59 but
reduces the time for filing a motion for a new trial or a motion to alter or amend a
judgment from twenty-eight to fourteen days, to conform to Rule 8002(a)’s
deadline for filing a notice of appeal. See 2009 Advisory Committee Note to Rule
9023.
30
Price, 420 F.3d at 1167.
31
See Fed. R. App. P. 4(a)(4); Fed. R. Bankr. P. 8002(b). A Rule 60 motion
filed within 14 days after the entry of the judgment, however, tolls the appeal
time.
32
Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995); Van Skiver, 952 F.3d
at 1243 (motion construed as one pursuant to Rule 60(b) did not raise underlying
judgment for appellate review); In re Cruz, 516 B.R. 594, 601 (9th Cir. BAP
2014) (when a motion for reconsideration under Rule 60(b) is filed within 14 days
of entry of the underlying order, appellate court has jurisdiction to review both
the underlying order and the order denying reconsideration.).
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Common to both types of motions is Rule 6(b)(2), which prohibits a court
from extending the time to file them. Rule 9006(b), patterned after Rule 6(b),
governs the enlargement of time under the Bankruptcy Rules. Subsection (1) of
Rule 9006(b) allows the court to enlarge the time for a party to act (such as by
filing a motion) if the request for more time is made within the specified period
and cause is shown. If the motion is made after the expiration of the specified
time, the court may only enlarge the time where the failure to act was the result of
excusable neglect.33 Subsection (2), however, says that “[t]he court may not
enlarge the time for taking action under Rules . . . 9023, and 9024.” 34 Rule 9023
provides no exceptions to the fourteen-day rule. Thus, the bankruptcy court
correctly concluded that Rule 9006 prohibited it from enlarging the time for
Debtor to file a motion under Rule 59. 35
Here, the June 19 Order was entered on June 19, 2014. The Third Motion
was filed twenty-one days later. Thus, the bankruptcy court did not err in treating
it as a motion under Rule 60.36 If the bankruptcy court had not treated the Third
Motion as a motion under Rule 60, it would have been denied as untimely.
B. The August 28 Order
1. The bankruptcy court did not deny Debtor due process.
Debtor contends that the bankruptcy court violated her due process rights
when it rejected her request to cure the Clerk’s failure to notify her of the entry of
the June 19 Order and treat the Third Motion as a timely-filed Rule 59 motion. 37
33
Fed. R. Bankr. P. 9006(b)(1).
34
Fed. R. Bankr. P. 9006(b)(2).
35
See August 27, 2014 Hr’g Tr. at 14, ll. 14-15, in App. at 134.
36
See Van Skiver, 952 F.2d at 1243 (motion filed after Rule 59(e) time limit
expired must be construed as one under Rule 60).
37
Appellant’s Br. at 12-16.
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She argues that Rule 9022’s provision that “[l]ack of notice of the entry does not
affect the time to appeal” is inapplicable because she was not filing an appeal, but
a motion for reconsideration.38 She also argues that her pro se and non-electronic
court filing (ECF) statuses present unique circumstances that warrant treating her
motion as timely.39 Finally, she argues that the bankruptcy court should have
invoked Rules 6 and 26, as well as the bankruptcy court’s equitable powers under
§ 105, to cure the notice deficiency.40 Debtor’s arguments are unpersuasive.
First, we see no due process violation. The Due Process Clause of the Fifth
Amendment protects persons from the deprivation of “life, liberty, or property,
without due process of law.”41 There are two types of due process violations:
procedural and substantive. “Procedural due process ensures the [government]
will not deprive a party of property without engaging in fair procedures to reach a
decision, while substantive due process ensures the [government] will not deprive
a party of property for an arbitrary reason regardless of the procedures used to
reach that decision.” 42
Debtor has alleged a procedural due process violation, which prompts a
two-step inquiry: 1) whether the plaintiff has been deprived of a protected
interest and 2) whether the procedures followed in depriving the plaintiff of that
38
Appellant’s Br. at 15 (“This case does not concern appeal; the exception is
inapplicable.”).
39
Id. at 12-13.
40
Id. at 14-15.
41
U.S. Const. amend. V. The Fifth Amendment applies to the federal
government, of which the bankruptcy court is a part, and the Fourteenth
Amendment applies to state governments, but case law under the Fourteenth
Amendment can be applied to claims under the Fifth Amendment because the
reach of both the Due Process Clauses is “coextensive.” Walker v. R.J. Reynolds
Tobacco Co., 734 F.3d 1278, 1287 (11th Cir. 2013) (quoting Rodriguez–Mora v.
Baker, 792 F.2d 1524, 1526 (11th Cir. 1986)).
42
Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.
2000).
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interest comported with the “due process of law.”43 A constitutionally-protected
property interest is a legitimate claim of entitlement to some benefit. 44 A
property interest is more than an abstract need or desire or a unilateral
expectation.45 Property interests are not created by the federal constitution, but
rather are created and defined “by existing rules or understandings that stem from
an independent source such as state law — rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.” 46
Debtor argues that Rule 9022’s mandate that the Clerk shall immediately serve
notice of the entry of a judgment or order gave her a right to notice. But
protected interests are substantive rights, not rights to procedures. 47 “[A]n
entitlement to nothing but procedure cannot be the basis for a liberty or property
interest.”48 Accordingly, we conclude that Debtor’s right to notice under Rule
9022 of the entry of a judgment is not an interest protected by the Due Process
Clause.
Even if some constitutionally-protected property interest were found to
exist, the procedures the bankruptcy court followed were sufficient. Due process
is satisfied when the “notice [is] reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.”49 The nature of the
43
Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012).
44
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
45
Id.
46
Id.
47
Elliot, 675 F.3d at 1245.
48
Stein v. Disciplinary Bd., 520 F.3d 1183, 1192 (10th Cir. 2008) (brackets
and internal quotation marks omitted).
49
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
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proceeding determines the type of notice and hearing required. 50 The proceeding
at issue was a motion to alter or amend under Rule 59. The bankruptcy rules
clearly provide notice to litigants about how to seek relief under Rule 59. Pro se
litigants are obliged to know and follow court rules.51 Additionally, parties to
litigation have an affirmative duty to monitor the docket for their case to inform
themselves of entry of orders they may wish to appeal, whether it be by filing a
Rule 59 motion or a notice of appeal.52 Rule 9023 clearly states that “[a] motion
for a new trial or to alter or amend a judgment shall be filed . . . no later than 14
days after entry of judgment.” Rule 9006(b)(2) makes it clear that this time may
not be enlarged. Debtor knew that the bankruptcy court had denied the Second
Motion. She was present at the June 17 hearing, fully aware that a written order
would follow shortly, and that the rules required action within 14 days. 53 It was
incumbent on Debtor to monitor the docket for the entry of the order so she would
know when she should start counting the 14 days. Debtor, however, waited
twenty days after the June 17 hearing to call the Clerk to inquire when she should
start counting the 14 days.
Rule 9022(a) supports this result. Rule 9022(a) warns that lack of notice of
the entry of a judgment does not affect the time to appeal. Even though Rule
50
Id. at 314-15.
51
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
52
See Delaney v. Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994)
(parties have affirmative duty to monitor dockets to inform themselves of entry of
orders they may wish to appeal); Brown v. Zarek, No. 98-5097, 1998 WL 738340,
at *1 (10th Cir. Oct. 22, 1998); Durie v. Marchessault (In re Marchessault), 416
B.R. 898, 899 (Bankr. M.D. Fla. 2009).
53
August 27, 2014 Hr’g Tr. at 12, ll. 3-7, in App. at 133 (“Ms. Onyeabor:
Well, what had happened was I didn’t know what date to — there’s a 14 day gap
in which I was going to file for rehearing and I didn’t know when to start
counting because when I called them on the 7th that was the first time they
emailed me the order.”).
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9022’s “does not affect” provision only references the time to appeal, the
advisory committee note to that rule’s correlative Civil Rule (Rule 77) explains
that “[n]otification by the clerk is merely for the convenience of litigants” and
warns that it is “unsafe for a party to rely on absence of notice from the clerk of
the entry of a judgment” as a ground to excuse an untimely filing. 54 “[C]ourts
have repeatedly held that failure to receive notice of the entry of a judgment is
not a defense to an untimely appeal because litigants have an affirmative duty to
monitor the dockets to keep apprised of the entry of orders that they may wish to
appeal.”55 We think it is reasonable to apply Rule 9022’s “lack of notice of the
entry does not affect the time to appeal” provision to the time to file a motion
under Rule 59 because 1) Rule 9022 references Rule 8002, which lists matters
that can affect the time to appeal, but the list does not include a lack of notice of
the entry of the judgment, 2) Rule 8002 and Rule 9023 are analogous, both
providing the same time limit (14 days) and the same triggering event (the entry
of the judgment), and 3) litigants have a duty to monitor the docket in their case
54
The Advisory Committee Note to Rule 9022 states that “Subdivision (a) of
this rule is an adaptation of Rule 77(d)” of the Federal Rules of Civil Procedure.
The Advisory Committee Note (1946) to Rule 77(d) states that:
[N]otification by the clerk of the entry of a judgment has nothing to
do with the starting of the time for appeal; that time starts to run
from the date of entry of judgment and not from the date of notice of
the entry. Notification by the clerk is merely for the convenience
of litigants. And lack of such notification in itself has no effect
upon the time for appeal; but in considering an application for
extension of time for appeal as provided in Rule 73(a), the court may
take into account, as one of the factors affecting its decision, whether
the clerk failed to give notice as provided in Rule 77(d) or the party
failed to receive the clerk’s notice. It need not, however, extend the
time for appeal merely because the clerk’s notice was not sent or
received. It would, therefore, be entirely unsafe for a party to
rely on absence of notice from the clerk of the entry of a
judgment. . . .” (Emphasis added).
55
Freeman v. Loomas (In re Loomas), BAP No. CO-13-17, 2013 WL
5615943, at *4 (10th Cir. BAP Oct. 15, 2013) (internal quotations and citations
omitted). See also In re Delaney, 29 F.3d at 518.
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to determine when an appeal must be filed. 56
In any event, Debtor was not denied any hearing on the Third Motion.
Although Debtor lost the opportunity to seek relief under Rule 59 due to the Third
Motion’s untimeliness, she was given a meaningful opportunity to be heard under
Rule 60. Because she was given a meaningful opportunity to be heard, there was
no due process violation.
Second, Appellant’s argument that her pro se and non-ECF statuses present
unique circumstances justifying the extension of the time to file a Rule 59 motion
is unavailing.57 The so-called “unique circumstances” doctrine excuses an
untimely appeal “where a party has performed an act which, if properly done,
would postpone the deadline for filing his appeal and has received specific
assurance by a judicial officer that this act has been properly done.” 58 The judge
must give a specific assurance concerning the timeliness of the postjudgment
motion (e.g., affirmatively state that the motion was timely or that it tolled the
time period).59 Whether this doctrine is available to excuse an untimely Rule 59
filing is uncertain.60 We need not decide this question, however, because even if
56
See King v. Comm’r of Social Sec., 230 Fed. App’x 476, 478 (6th Cir.
2007) (clerk’s failure to notify party of entry of judgment does not affect time to
file motion under Fed. R. Civ. P. 59(e)).
57
Appellant’s Br. at 12.
58
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). The Supreme
Court adopted the “unique circumstances” doctrine in Harris Truck Lines, Inc. v.
Cherry Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam), applied it in
Thompson v. INS, 375 U.S. 384 (1964) (per curiam), and narrowed it in
Osterneck.
59
United States v. Garduño, 506 F.3d 1287, 1292 (10th Cir. 2007); see also
In re Bond, 254 F.3d 669, 674-75 (7th Cir. 2001) (assurance must go to timeliness
of appellant’s action); Fruit of the Loom, Inc., v. Am. Mktg. Enters., Inc., 192
F.3d 73, 76-77 (2d Cir. 1999) (judge must give specific assurances concerning
timeliness of postjudgment motion).
60
In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court rejected the
unique circumstances doctrine in the context of jurisdictional rules, overruling
(continued...)
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the doctrine is available, the facts here do not qualify as unique circumstances.
The bankruptcy court made no specific assurances to Debtor that her time to file a
Rule 59 motion would not begin to run until the Clerk gave notice of entry of the
June 19 Order. The language in the June 19 Order instructing the Clerk to serve
notice of its entry is insufficient to constitute such an assurance, a prerequisite to
applying the unique circumstances doctrine.61 Pro se and non-ECF statuses are
not unique circumstances. Many litigants represent themselves. As the
bankruptcy court advised Debtor, pro se status does not excuse a party’s
obligation to know and comply with the same rules that govern other litigants. 62
Third, Debtor’s reliance on Rules 6 and 26 is misplaced. Rule 26 is not
applicable because it governs discovery and provides relief for discovery-related
violations, not for violations of the notice requirement of Rule 9022. Rule 6 is
also not applicable. In contested matters, Rule 9006 applies, not Rule 6. 63 Even
if Rule 6 applied, like Rule 9006, it too explicitly states that a court may not
60
(...continued)
Harris Truck and Thompson. The Court explained that generally, statutory-based
filing periods are jurisdictional, while court-promulgated time limits are claim-
processing rules. Id. at 210-13. The Court concluded that because Rule 4 of the
Federal Rules of Appellate Procedure is a jurisdictional rule since it carries a
statutory time limit into practice, the unique circumstances doctrine cannot be
used to excuse an untimely notice of appeal. Id. at 214. Prior to Bowles, the
Tenth Circuit treated Rule 59 as a jurisdictional rule. Watson v. Ward, 404 F.3d
1230 (10th Cir. 2005) (concluding courts lack jurisdiction to consider untimely
Rule 59(e) motions). The Tenth Circuit has not yet decided whether Rule 59 is a
jurisdictional or a claim-processing rule in light of the Supreme Court’s recent
decisions making such a distinction. Martinez v. Carson, 697 F.3d 1252, 1258 n.
1 (10th Cir. 2012).
61
See In re Bond, 254 F.3d at 674-75 (single sentence in order stating that
“[the first] motion [to reopen appeal] is moot and that if she continues in her
position that these cases should be reopened, she must file a new motion” did not
constitute type of specific assurance that triggers unique circumstances doctrine).
62
Garrett, 425 F.3d at 840.
63
See Fed. R. Bankr. P. 9014(c) (identifying applicable rules to contested
matters).
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enlarge the time to file a motion to alter or amend a judgment. 64
Finally, although the bankruptcy court’s equitable powers under § 105 are
broad, they are not unlimited. Under § 105(a), a bankruptcy court “may issue any
order, process, or judgment that is necessary or appropriate to carry out the
provisions of [the Bankruptcy Code].”65 The Supreme Court has stated that a
bankruptcy court’s equitable powers “must and can only be exercised within the
confines of the Bankruptcy Code.”66 Similarly, the Tenth Circuit has said that a
bankruptcy court’s equitable powers under § 105(a) “‘may not be exercised in a
manner that is inconsistent with the other, more specific provisions of the
[Bankruptcy] Code.’”67 The applicable procedural rules contemplate that notice
of the entry of a judgment might not be given and specifically provide that lack of
notice will not toll the time to act after the judgment is entered.
2. The bankruptcy court did not abuse its discretion in denying
Rule 60(b) relief.
Rule 60(b), made applicable in bankruptcy proceedings by Rule 9024,
provides that the court may grant relief from a judgment based on one or more of
the following:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud, . . . misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is no longer
64
Compare Fed. R. Civ. P. 6(b) (“A court must not extend the time to act
under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”) with Fed. R.
Bankr. P. 9006(b)(2) (“The court may not enlarge the time for taking action under
Rules . . . 9023, and 9024.”).
65
11 U.S.C. § 105(a).
66
Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988).
67
United States v. Richards (In re Richards), 994 F.2d 763, 765 (10th Cir.
1993) (quoting Landsing Diversified Props.-II v. First Nat’l Bank and Trust Co.
(In re W. Real Estate Fund, Inc.), 922 F.2d 592, 601 (10th Cir. 1990)).
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equitable; or (6) any other reason that justifies relief.
Relief under Rule 60(b) is afforded only in exceptional circumstances. 68
The bankruptcy court denied the Third Motion because the motion simply
revisited arguments previously heard and rejected.69 We agree with the
bankruptcy court’s assessment. In the First Motion, Debtor alleged, among other
things, that LEBR’s principal had hijacked the POA by directing and controlling
its actions in the bankruptcy case. In the Second Motion, she made a similar
claim, but added that “she has discovered new evidence, specifically that
shareholders or members of the [POA] were not aware of the actions before this
court and have not authorized [CRS] to represent the homeowner’s association” in
bankruptcy court.70 The Third Motion requested a rehearing based on the lack of
notice to Debtor of the entry of the June 19 Order; it did not raise any new
grounds for relief.
The hearing transcript on the Third Motion indicates that Debtor wanted the
bankruptcy court to review her new evidence again. Debtor described the central
issue as “Newly discovered evidence is the focus at this hearing, what the owners
are saying now is the focus of this hearing . . . .”71 Thus, Debtor cited the lack of
notice of the entry of the judgment as a pretext to revisit issues regarding the
POA’s participation in the bankruptcy case, which she raised in the First and
Second Motions and which were rejected by the bankruptcy court. “It is improper
for a court to grant relief under Rule 60(b) if, in doing so, the court simply
68
State Bank v. Gledhill (In re Gledhill), 76 F.3d 1070, 1080 (10th Cir.
1996).
69
August 27, 2014 Hr’g Tr. at 15, in App. at 135.
70
June 17, 2014 Hr’g Tr. at 27-28, in App. at 168-69 (bankruptcy court
summarizing the Second Motion).
71
August 27, 2014 Hr’g Tr. at 4, ll. 13-14, in App. at 125.
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revisits arguments which had already been raised and dismissed.” 72 For this
reason, the bankruptcy court did not abuse its discretion in denying the Third
Motion.
C. The June 19 Order
Rule 8002 requires a notice of appeal to be filed within fourteen days of the
date of the entry of the order appealed from or fourteen days from the entry of an
order disposing of a timely-filed motion of the kind set forth in Rule 8002(b).
Debtor’s Notice of Appeal was filed on September 10, 2014, eighty-three days
after the entry of the June 19 Order. The Third Motion did not toll the period to
appeal the June 19 Order because (as discussed above) it was not a timely-filed
motion under Rule 9023, nor was it a Rule 9024 motion filed within fourteen days
of the June 19 Order’s entry. Debtor’s appeal of the June 19 Order was thus
untimely. Accordingly, we lack jurisdiction to review the June 19 Order and
dismiss her appeal of it for lack of appellate jurisdiction. 73
IV. Conclusion
The Clerk’s failure to give the notice required by Rule 9022 did not violate
Debtor’s right to due process. Rule 9006(b)(2) precluded the bankruptcy court
from enlarging Debtor’s time to file a motion under Rule 9023 even though the
Clerk failed to comply with Rule 9022’s mandate to immediately serve notice of
the entry of the June 19 Order. Because the Third Motion was filed more than
fourteen days after the entry of the June 19 Order, we conclude the bankruptcy
court properly treated it as a motion filed under Rule 60. And because the Third
Motion merely revisited previously rejected arguments, the bankruptcy court did
72
Ebel v. Ebel (In re Ebel), Case No. 96-1190, 1997 WL 428574, at *5 (10th
Cir. July 30, 1997) (citing Van Skiver, 952 F.2d at 1244).
73
Dimeff v. Good (In re Good), 281 B.R. 689, 694-95 (10th Cir. BAP 2002)
(failure to timely file notice of appeal is jurisdictional defect barring appellate
review and requires dismissal for lack of appellate jurisdiction).
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not abuse its discretion in denying relief under Rule 60(b). Finally, because the
Third Motion was not of a kind set forth in Rule 8002(b), the appeal of the June
19 Order was untimely. For these reasons, we AFFIRM the August 28 Order and
DISMISS the appeal of the June 19 Order for lack of appellate jurisdiction.
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