Opinion
Case No. 09-53724. SSN: xxx-xx-2177.
4-2-2010
In re: Besrat G. Amare, Chapter 7, Debtor.
On December 21, 2009, the Court denied the Creditors, Godofai Tgiorgis and Chellena Food Express, Inc. (now, Chellena, Inc.)'s Motion (Doc. No. 3) for Leave to file a Complaint in adversary proceeding no. 09-2407 and dismissed the proceeding. Neither the Creditors nor their counsel appeared at the December 21, 2009 hearing on the matter. On even date, an Order (Doc. No. 24) avoiding the judicial liens of the Creditors was entered in the underlying bankruptcy. The Creditors' judicial liens totaled the sum of $205,000.00, plus interest.
On January 22, 2010, the Court received a Motion to Reconsider (Doc. No. 28) from the Creditors. The Creditors request reconsideration of a "judgment passed December 16, 2009." No additional specification was provided. Neither of the aforementioned orders were issued or entered on December 16, 2009, but both were considered in the Court's review. It has been determined that the Motion to Reconsider should be denied. The Creditors' motion was untimely. Motions for reconsideration filed within 10 days of entry of the judgment, are generally treated as motions to alter or amend a judgment. F.R.B.P. 9023; F.R.C.P. 59(e); See also In re Morrison, 26 B.R. 57 (Bankr. N.D. Ohio 1982) (citing Smith v Hudson, 600 F.2d 60, 62 (6th Cir. 1979). However, the Creditors' Motion was received by the Court over 30 days after the order avoiding the judicial liens and order denying the motion for leave to file the complaint was entered.
Furthermore, even though the Court may review the request for reconsideration as a motion seeking relief from judgment under Federal Rule of Civil Procedure 60(b), the Creditor has not asserted a valid legal basis for providing relief. F.R.B.P. 9024; F.R.C.P. 60(b). A successful motion under Rule 60(b) will demonstrate: 1) the existence of one of the six listed grounds for reconsideration and 2) a meritorious defense. Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 1160 (6th Cir. 1980). It is the movant's burden to bring itself within the provisions of the Rule. Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). The motion also has to be made within a reasonable time. Eglinton v. Loyer (In re G.A.D, Inc.), 340 F.3d 331, 334 (6th Cir. 2003).
In the Sixth Circuit, relief may be granted under Rule 60(b)(1)—mistake, inadvertence, surprise, or excusable neglect—only where a motion is filed prior to the time for taking an appeal. In re G.A.D., Inc., 340 F.3d at 334-35 (citing Barrier v. Beaver, 712 F.2d 231, 234-35 (6th Cir. 1983)). Here, that did not occur. The only other ground the Court may arguably consider is under Rule 60(b)(3)— fraud, misrepresentation, or misconduct by an opposing party. The movant must provide proof by clear and convincing evidence. In re Evans, 2003 WL 22871619 (Bankr. W.D. Tenn 2003)(citing Abrahamsen v. Trans State Express, Inc., 92 F.3d 425 (6th Cir 1996) and Jordan v Paccar, Inc., 97 F.3d 1452 (6th Cir 1996)). In this case, the Creditors have not met the requisite standard.
Accordingly, the Motion is DENIED.
IT IS SO ORDERED.