Santos v. Mender (In Re Santos)

Boroff, Bankruptcy Judge,

concurring.

I concur that the order of the bankruptcy judge, dated June 13, 2005 — the only order appealed from- — should be affirmed. But not without regret. I am painfully aware that the record fails to disclose a basis for allowance of the Espino claim, for the reasons ably described in Judge Feeney’s dissent. At the May 31, 2002 hearing, which I agree set the stage for what followed, the bankruptcy judge opined that the Debtor had not timely raised an objection to the merits of the Espino claim. That was only partially correct. Indeed, the Debtor’s first objection to the Espino claim was that the claim was filed untimely. But, thereafter, the bankruptcy judge’s August 24, 2001 order to show cause invited an inquiry into the merits of the Espino claim. In his “Motion in Corn*771pliance with Order,” the Debtor responded in detail to the August 24, 2001 order by objecting to the Espino claim on its merits. Accordingly, I believe that, without the benefit of an evidentiary hearing, the allowance of the Espino claim thereafter was not proper.

The confusion on the record may have been the motivating factor for the trustee to raise the issue again, once the case was converted to chapter 7. By this time, however, the bankruptcy judge was convinced, inter alia, that the validity of the Espino claim was old news and repeated his order. The Debtor then filed his first motion for reconsideration, arguing again the invalidity of the Espino claim. That motion for reconsideration, also arguably untimely, was denied. Had the Debtor then appealed, the disposition of even that appeal would have been problematic in light of the Debtor’s failure to seek review of the allowance of the claim in the chapter 13 case. Yet the Debtor did not appeal. Rather, he filed a second motion for reconsideration over 30 days later, essentially repeating the same arguments made in his first motion for reconsideration. And upon the bankruptcy judge’s denial of the second motion for reconsideration, the Debtor now, for the first time, seeks review. It is too late.

11 U.S.C. § 502(j) does permit a party to seek reconsideration of the allowance or disallowance of a claim “for cause.” I believe, however, that “cause” should not include grounds which have been previously presented to the bankruptcy judge and rejected. To conclude otherwise, encourages serial motions for reconsideration, undermines whatever finality remains after application of § 502(j), and lengthens interminably the time within which a party may appeal a bankruptcy judge’s allowance or disallowance of a claim.