Opinion
C/A No. 05-13394-JW.
March 17, 2006
ORDER
This matter comes before the Court upon the Motion for Reconsideration of Order Confirming Plan and Resolving Motions ("Motion to Reconsider") filed by American General Finance ("Creditor") and a timely Objection to the Motion to Reconsider filed by Diana O. Wingard ("Debtor"). In light of the evidence and arguments presented, the Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Debtor filed a petition for Chapter 7 Relief on October 14, 2005, and converted her case to a Chapter 13 on November 15, 2005.
2. Creditor holds a claim secured by Debtor's residence. Creditor has not filed a proof of claim but the claim is scheduled in Debtor's Schedule C in the amount of $11,195.71. The claim is listed as a second mortgage on Debtor's residence and is subordinate to the creditor holding the first mortgage, whose claim is scheduled in the amount of $75,496.00. Debtor's Schedule A and accompanying appraisal states that the residence has a market value of $62,000.00.
3. On November 30, 2005, Creditor was served with the Debtor's Chapter 13 Plan and Related Motions. Debtor's plan proposed to value the Creditor's second mortgage at zero.
4. On December 7, 2005, the Creditor filed an objection to the plan. Creditor's objection was scheduled to be heard in conjunction with a plan confirmation hearing scheduled for January 19, 2006.
5. On January 18, 2006, James W. Poag, Jr., counsel for Creditor withdrew the objection to Debtor's plan by filing an electronically transmitted letter to the clerk's office. In the letter, Mr. Poag stated the following:
This office filed an Objection on the Motion to value certain collateral on behalf of American General Finance as an Objection to The Plan. It appears that the debtor has an appraiser to testify as to the value, current as late as today, to be in line with the figure given in the plan and thus to continue the objection would be futile. Accordingly, I would respectfully request this objection be withdrawn.
6. Since there were no objections to Debtor's proposed Chapter 13 plan, Debtor's plan was confirmed on January 19, 2006.
7. On January 21, 2006, Creditor filed its Motion. In the Motion, Creditor asserts that, pursuant to Fed.R.Civ.P. 60(b)(2), it is entitled to relief from the Court's order confirming Debtor's Chapter 13 plan because Creditor had procured newly discovered evidence that would demonstrate that the value of Debtor's residence exceeded the first mortgage on the residence; and thus, Debtor was not entitled to strip-off Creditor's second mortgage pursuant to the terms of Debtor's confirmed plan.
8. In response to Creditor's Motion, Debtor filed an objection to the Motion to Reconsider on February 14, 2006. Debtor contends that there is no basis for the Motion and seeks attorneys' fees for objecting to the Motion and Debtor's wages for lost work for appearing at the Motion.
9. Creditor objected to Debtor's request for attorneys' fees on February 28, 2006.
CONCLUSIONS OF LAW
In order to obtain relief from a judgment in light of the newly discovered evidence, the moving party seeking relief from a judgment must demonstrate that the newly discovered evidence actually existed at the time of trial, that the moving party could not have discovered the evidence earlier by due diligence, that the moving party was diligent, and that the consideration of the evidence would be likely to change the result. See In re Wright, 186 B.R. 394, 397 (Bankr. D. Md. 1995) (quoting Boryan v. U.S. 884 F.2d 767, 771 (4th Cir. 1989)). See also Fuentes v. Stackhouse, 182 B.R. 438, 442 (E.D. Va. 1995) (citing In re Claxton, 30 B.R. 119, 214 Bankr. E.D. Va. 1983)).
Creditor argues that Fed.R.Civ.P. 60(b), which is applicable to bankruptcy proceedings under Fed.R.Bankr.P. 9024, provides it with relief from the Court's confirmation order because after the confirmation of Debtor's plan, Creditor retained an appraiser who could dispute a valuation established by Debtor's appraiser.
The record of this case indicates that Debtor served Creditor with notice of her proposed plan on November 30, 2005. The schedules and plan provided that Debtor's residence was worth $62,000.00 and that there was no equity for Creditor's mortgage, thus the plan valued the Creditor's secured claim at $0.00. On December 7, 2005, Creditor timely filed an objection to Debtor's proposed plan on grounds that the property was worth at least $90,000.00 and that Creditor was thus secured and could not be valued. Debtor's plan was scheduled for a confirmation hearing on January 19, 2006. In light of the time between the filing of Creditor's objection and the confirmation hearing, it appears that Creditor had ample time to procure and present an appraiser for the purpose of refuting Debtor's valuation of certain collateral. Furthermore, Creditor made no showing that a new valuation was newly discovered evidence that could not have been available to Creditor had it exercised due diligence. Therefore, under the circumstances attendant in this case, the Court concludes that Creditor has failed to demonstrate that it is entitled to relief under Fed.R.Civ.P. 60(b)(2).
The Court also notes that the record of this case indicates that Creditor's counsel withdrew Creditor's objection to Debtor's proposed Chapter 13 plan prior to the confirmation hearing, and that Debtor's plan was confirmed without objection.
Accordingly, in light of the foregoing, the Court shall deny Creditor's Motion to Reconsider. The Court also believes that it is sufficiently clear from the Rules of Civil Procedure and the circumstances of this case that Creditor did not have grounds to file the Motion because the value of Debtor's residence was discoverable by Creditor before Creditor withdrew its objection. Pursuant to this Court's inherent power to regulate litigants and deter abuse under 11 U.S.C. § 105(a) and 28 U.S.C. § 1927, the Court awards attorneys' fees in the amount of $600.00 to be paid by Creditor to Debtor's counsel, Michael J. Cox, P.O. Box 475, Columbia, S.C. 29202, on or before March 31, 2006. Furthermore, Creditor shall pay to Debtor the sum of $42.50 for lost wages on or before March 31, 2006.
AND IT IS SO ORDERED.