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In re Agree

United States District Court, E.D. Michigan, Southern Division
Nov 7, 2005
Bankr. Case No. 04-41034, Civil Case No. 04-40205 (E.D. Mich. Nov. 7, 2005)

Opinion

Bankr. Case No. 04-41034, Civil Case No. 04-40205.

November 7, 2005


ORDER DENYING REHEARING


Before the Court is Debtor/Appellant John Agee's Motion for Rehearing pursuant to Bankruptcy Rule 8015. Agee finds error with the Court's Opinion and Order Affirming the Decision of the Bankruptcy Court, issued on August 12, 2005, which stated:

Throughout his brief, Agee argues that he is attempting to exercise his right to cure under 11 U.S.C. § 1322(b)(2). Yet, § 1322(b)(2) refers to a debtors ability to modify the rights of a claim holder; it is § 1322(b)(5) that controls a debtor's right to cure. [ Land Bank of Louisville v.] Glenn was, and this case is, concerned with § 1322(b)(5).

Opinion, at 8. 11 U.S.C. § 1322(b)(2) allows a Chapter 13 plan to modify the rights of claim holders, whereas § 1322(b)(5) provides for the curing of any default. The Court upheld the Bankruptcy Court's application of Land Bank of Louisville v. Glenn, 760 F.2d 1428, 1435 (6th Cir. 1985) to Agee's case.

Agee, however, states that his case is concerned with § 1322(b)(2) and not (b)(5). He points to his Chapter 13 plan which classifies Appellee Fenton Poured Walls, Inc.'s ("Fenton") claim as a modified claim pursuant to 11 U.S.C. § 1322(b)(2). Mot., Ex. A, at 3. Fenton argues that Agee is precluded from making this argument in his motion for rehearing because it was not raised in Agee's initial appellant brief. Agee contests this characterization, relying on his Chapter 13 plan and an obscure argument he made to the court below.

Nevertheless, Agee never once argued to this Court that he was seeking to modify Fenton's claim or that Glenn did not apply to his case because his plan classified Fenton's claim under § 1322(b)(2). Throughout his appellant brief he continually represented to the court that he was attempting to cure his default. Agee cannot raise this issue now. See Frazier v. Huffman, 348 F.3d 174, 176 (6th Cir. 2003) ("Issues raised for the first time in a petition for rehearing are generally not considered."); Costo v. United States, 922 F.2d 302, 302-303 (6th Cir. 1990) ("Generally, an argument not raised in an appellate brief or at oral argument may not be raised for the first time in a petition for rehearing.").

ACCORDINGLY, IT IS HEREBY ORDERED that Debtor/Appellant John Agee's Motion for Rehearing [docket entry 11] is DENIED.

SO ORDERED.


Summaries of

In re Agree

United States District Court, E.D. Michigan, Southern Division
Nov 7, 2005
Bankr. Case No. 04-41034, Civil Case No. 04-40205 (E.D. Mich. Nov. 7, 2005)
Case details for

In re Agree

Case Details

Full title:In Re: JOHN AGEE, Debtor. JOHN AGEE, Appellant, v. FENTON POURED WALLS…

Court:United States District Court, E.D. Michigan, Southern Division

Date published: Nov 7, 2005

Citations

Bankr. Case No. 04-41034, Civil Case No. 04-40205 (E.D. Mich. Nov. 7, 2005)