As the Third Circuit has explained, a rule of procedure cannot “negate the substantive impact of [a] restriction contained” in a provision of the Bankruptcy Code or “validly provide” a movant “with a substantive remedy that would be foreclosed by” such a statutory provision. In re Fesq, 153 F.3d 113, 116-17 (3d Cir. 1998) (discussing 11 U.S.C. § 1330); see 28 U.S.C. § 2075 (federal bankruptcy rules cannot “abridge, enlarge, or modify any substantive right”); 28 U.S.C. § 2072 (same as to federal rules of civil procedure). A rule can do no more than “define the process” by which the substantive rights set forth in the Code can be effected.

Judge Mitchell's opinion highlights the difference, then, between revocation, under Section 1330 on the basis of fraud, and the granting of other relief, as set forth in Rule 60 for reasons such as mistake or clerical error. In Branchburg Plaza Associates, L.P. v. Fesq (In re Fesq), 153 F.3d 113 (3d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999), the creditor, Branchburg Plaza Associates (hereinafter "Branchburg"), did not file an objection to confirmation of the debtor's Chapter 13 plan (which proposed to pay the secured claim in a single lump sum), and the plan was confirmed. Id. at 114.

Judge Mitchell's opinion highlights the difference, then, between revocation, under Section 1330 on the basis of fraud, and the granting of other relief, as set forth in Rule 60 for reasons such as mistake or clerical error. In Branchburg Plaza Associates, L.P. v. Fesq ( In re Fesq), 153 F.3d 113 (3d Cir. 1998), cert. denied, 526 U.S. 1018 (1999), the creditor, Branchburg Plaza Associates (hereinafter "Branchburg"), did not file an objection to confirmation of the debtor's Chapter 13 plan (which proposed to pay the secured claim in a single lump sum), and the plan was confirmed. Id. at 114.

Mansaray-Ruffin also cites a number of cases in which a debtor successfully fixed the amount of a secured claim at an amount less than the creditor asserted by providing for such lesser amount in her plan. See In re Fesq, 153 F.3d 113 (3d Cir. 1998); In re Holmes, 225 B.R. 789 (Bankr.Colo. 1998). Like the lien-stripping cases, these cases, too, do not involve a challenge to the validity of the lien itself and thus have no bearing on whether Mansaray-Ruffin could invalidate EMC's lien by treating it as an unsecured claim in her plan.

Whether § 1330 is both a substantive and time limitation on a motion to revoke a confirmation order is an issue of first impression in the Tenth Circuit. The Third Circuit visited this issue in Branchberg Plaza Associates, L.P. v. Fesq (In re Fesq), 153 F.3d 113 (3d Cir. 1998), cert. denied, 119 S. Ct. 1253 (1999). In Fesq a secured creditor wanted to vacate a Chapter 13 confirmation order because the debtor's plan did not pay the full amount of the creditor's secured claim.

The Court's own research on the issue raises significant doubt that it can adopt the approach taken in Disch. The basis for this “doubt” is found in In re Fesq, 153 F.3d 113 (3d Cir.1998), which was a Chapter 13 case but is highly relevant in the present case.Fesq remains good law.

Rule 60 and Rule 9024 cannot provide a remedy that is foreclosed by statute because the rules of civil procedure and bankruptcy procedure may "not abridge, enlarge or modify any substantive right." 28 U.S.C. §§ 2072, 2075; see Branchburg Plaza Assocs., L.P. v. Fesq (In re Fesq), 153 F.3d 113, 116 & n.4 (3d Cir. 1998) (interpreting § 1330(a), the chapter 13 companion to § 1144, and rejecting the argument that Rule 60(b) sets forth alternative grounds for revoking a confirmation order). To be entitled to relief under § 1144, the movant "must specifically allege facts showing fraud in the procurement of the confirmation order."

3. The Bankruptcy Court held that Appellant's inadvertance was an insufficient basis for altering a confirmation order. In support of this holding, the Bankruptcy Court relied upon In re Fesq, 153 F.3d 113, 120 (3d Cir. 1998), which holds that fraud is the only basis for revoking a confirmation order because of 11 U.S.C. § 1330(a). That statute states that "On request of a party in interest at any time within 180 days after the date of the entry of an order of confirmation under section 1325 of this title, and after notice and a hearing, the court may revoke such order if such order was procured by fraud."

In addition to the rules regarding relief from orders, § 1330(a) is specific to confirmation orders under Chapter 13, and states, "On request of a party in interest at any time within 180 days after the date of the entry of an order of confirmation under section 1325 of this title, and after notice and a hearing, the court may revoke such order if such order was procured by fraud." The interplay between Rule 9024, Civil Rule 60, and § 1330 was considered by the Third Circuit in Branchburg Plaza Associates, L.P. v. Fesq (In re Fesq), 153 F.3d 113, 114 (3d Cir. 1998). In that case, the debtor filed a Chapter 13 and proposed paying the creditor in the plan about ten percent of its claim.

Thus, the confirmation of a Chapter 13 plan may not be revoked under §1330 unless the confirmation was procured by fraud and a party in interest seeks the revocation within 180 days of the confirmation date. 153 F.3d 113 (3rd Cir. 1998). Young, 237 B.R. at 802; Fesq, 153 F.3d at 119-120.