Resurgent Capital Services v. Burnett (In Re Burnett)

RYAN, J.

Dissenting.

Before addressing my dissent, the following additional facts are relevant. Debtors objected to the claims filed by Resurgent on two grounds: (1) Resurgent had failed to provide documentation of the assignments, and (2) Resurgent had refused to disclose other information about the transfer, including what it paid GE Capital for the claims. In addition, Debtors noted that the amounts listed on the proofs of claim did not correspond to- the amounts scheduled by Debtors for the respective debts.. Appellant’s Excerpts of Record (“ER”) at 40-41.

The hearing on the objection was continued based on Resurgent’s representation that it would provide additional documentation supporting its claims. Id. at 5-6. After the hearing was continued several more times, the court sustained Debtors’ objection without providing any findings of fact. Id. at 16, 52-53. The order was entered on December 3, 2002. Id. at 52. Resurgent then filed its Motion to Amend on December 13, 2003. Id. at 54. As part of its Motion to Amend, Resurgent provided Affidavits of Sale evidencing the assignments of the claims from GE Capital. Id. at 63-65.

At the hearing on the Motion to Amend, the Court observed that the hearing on the objection had been continued so that Resurgent could provide additional documentation. Id. at 17-18. The court also stated that as of the continued hearing, no additional documentation had been provided. Id. The court then issued the order denying the Motion to Amend without providing any findings of fact. Id. at 100.

I respectfully disagree with the majority’s interpretation of the bankruptcy court’s decision. The majority states that the bankruptcy court denied the Motion to Amend solely because Resurgent did not reveal the consideration it paid to GE Capital for the claims. There is no indication in the record that this is the case. The order denying the Motion to Amend does not state the basis for the court’s decision. In addition, at the hearing on the Motion to Amend, the court explained that it had disallowed the claims based on Resurgent’s failure to provide sufficient documentation.

Under Rule 3001(f), a “proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f). However, if an objection “produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence.” Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir.2000) (citations and internal quotations omitted). In other words, the objector must “show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves.” Id.

Here, Debtors objected not only to the refusal of Resurgent to disclose the consideration paid for the claims but also to the lack of documentation of the assignments. Debtors also asserted that the amounts on the proofs of claim did not correspond to the amounts scheduled by Debtors for the respective debts. Thus, the objection contradicted the amounts claimed and cast doubt on whether Resurgent was the proper claimant. Therefore, it was appropriate *321for the court to shift the burden to Resurgent to produce evidence of the validity of its claims, including proof of the assignments.

The record shows that Resurgent did not provide additional support establishing the assignments of the claims to it prior to entry of the Order Sustaining Objections. In fact, the court continued the hearing several times for Resurgent to provide evidence of the assignments, but Resurgent continued to fail to provide that evidence. Therefore, the court did not err in disallowing the claims.

Resurgent requested reconsideration of the Order Sustaining Objections under Rules 3008 and § 502(j).13 If a Rule 3008 14 motion is brought within 10 days of the entry of the order in question, then it is to be treated as a Rule 9023 motion. See Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874 (5th Cir.1988) (“a Rule 3008 motion filed within the ten day period is in fact analogous to a Rule 9023, or Fed.R.Civ.P. 59 motion”); see also Ashford v. Consol. Pioneer Mortgage (In re Consol. Pioneer Mortgage), 178 B.R. 222, 227 (9th Cir. BAP 1995). Likewise, if a § 5020)15 motion is brought within ten days of the order, Rule 9023 will also guide the “for cause” standard under § 502(j). See Pride Cos., L.P. v. Johnson (In re Pride Cos., L.P.), 285 B.R. 366, 369 (Bankr.N.D.Tex.2002). Here, the Motion to Amend was brought within ten days of entry of the Order Sustaining Objections. Therefore, Rule 9023 applies.

Rule 9023 makes Federal Rule of Civil Procedure (“FRCP”) 59 applicable in bankruptcy cases. Fed. R. Bankr.P. 9023. A motion to alter or amend an order under FRCP 59(e) is appropriate if the trial court: “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).

To justify an amendment to an order based on “newly discovered evidence,” the moving party must show:

that the evidence was discovered after the judgment, that the evidence could not be discovered earlier through due diligence, and that the newly discovered evidence is of such a magnitude that had the court known of it earlier, the outcome would likely have been different.

Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.2003). Here, Resurgent provided Affidavits of Sale in support of its Motion to Amend. Resurgent did not argue that this evidence was “newly discovered,” nor could it contend that there was an intervening change in the law or that the Order Sustaining Objections was manifestly unjust. Therefore, Resurgent’s motion to amend could be granted only if it showed that the court had committed clear error. See School District No. 13, 5 F.3d at 1263.

On appeal, the bankruptcy court’s decision to deny a motion for reconsideration is reviewed for an abuse of discretion. See Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir.1995). *322Because the court did not err in sustaining Debtors’ objections to Resurgent’s claims on the basis that evidence of the assignments had not been provided, we cannot say the court abused its discretion in denying the Motion to Amend. Id. It was certainly within the bankruptcy court’s discretion to deny the motion to amend because no evidence of the assignments was provided to the court at the time it disallowed the claims. Accordingly, I would affirm the bankruptcy court.

. Resurgent also requested relief under Rule 7052. However, Rule 7052 is not applicable here because it applies to adversary proceedings. See Fed. R. Bankr.P. 7052.

. Rule 3008 provides that "[a] party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Fed. R. Bankr.P. 3008.

.Section 502(j) states that a claim that has been allowed or disallowed may be reconsidered “for cause.” 11 U.S.C. § 502(j).