Opinion
Case No. 02-32251, Adv. Pro. No. 02-3310.
November 24, 2004
ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING MOTION TO OUASH SUBPOENA
This matter is before the court on Plaintiff's Motion for Reconsideration brought under Fed.R.Bankr.P. 8015 [Doc. # 76 (filed in underlying Chapter 7 Case No. 02-32251)] and Defendant's opposition [Doc. # 37]. Also before the court is Defendant's Motion to Quash Subpoena [Doc. # 40], pertaining to a subpoena directed to Defendant. The court held a hearing on both motions, at which counsel for both Plaintiff and Defendant appeared in person, as did the parties.
Although Plaintiff's motion was filed in the underlying Chapter 7 bankruptcy case, Plaintiff seeks reconsideration of the Memorandum of Decision and Judgment entered in this adversary proceeding on September 28, 2004, in favor of Defendant after trial on Plaintiff's complaint objecting to discharge. At the hearing, counsel indicated that Plaintiff had received information from a source she believed to be credible that Defendant had concealed information regarding certain assets being held in a bank in Genoa, Ohio, namely certificates of deposit. The docket shows that a subpoena was issued by Plaintiff's counsel to Genoa Savings Bank on November 8, 2004 [Doc. #38]. Plaintiff has since verified, however, that neither of the two banks in Genoa hold the alleged assets. Nevertheless, Plaintiff now seeks leave to conduct further discovery to determine the existence of these or other assets, which were not accounted for by Defendant in his underlying Chapter 7 bankruptcy case. To that end, Plaintiff has also served her subpoena duces tecum on Defendant and requests leave to conduct another Bankruptcy Rule 2004 exam of him.
The court notes that the claims alleged in Plaintiff's complaint and on which trial was held on December 10, 2003, include only claims brought under 11 U.S.C. § 727(a)(3) and (a)(5). But see 11 U.S.C. § 727 (d), (e).
Initially, the court notes that Fed.R.Bankr.P. 8015 provides for filing motions for rehearing only as to judgments of the district court or bankruptcy appellate panel. It does not provide authority for requesting reconsideration of the judgment entered by the bankruptcy court. At the hearing on the instant motion, Plaintiff relied on no other authority in support of her motion. It is therefore unclear to what procedural end Plaintiff seeks such discovery.
In any event, the court finds Plaintiff's allegation that additional assets may exist to be purely speculative and agrees with Defendant that Plaintiff had the opportunity for such discovery during the course of this adversary proceeding. Plaintiff has failed to demonstrate a sufficient basis for allowing post-judgment discovery and disturbing the finality of the judgment in this case.
THEREFORE, for the foregoing reasons, good cause appearing,
IT IS ORDERED that Plaintiff's Motion for Reconsideration be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that Defendant's Motion to Quash Subpoena [Doc. #40] be, and hereby is, GRANTED.