Opinion
Bankruptcy No. 01 B 14730
December 20, 2001
Robert D. Nachman, Schwartz, Cooper, Greenberger Krauss, Chicago, IL, for Debtor.
Samuel A. Shelist, Samuel A. Schelist, Ltd. Edward L. Schuller Associates, Chicago, IL, for Creditor.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Nancy Gleason's (the "Debtor") motion for relief from judgment, to amend findings, and for other relief, pursuant to Fed.R.Bankr.P. 9024 and 7052.
For the reasons stated in this memorandum opinion and order, the Debtor's motion is denied.
This Court has jurisdiction over this proceeding under 28 U.S.C. § 1334(b) as a matter arising under Fed.R.Bankr.P. 9023. The matter is before this Court under Internal Operating Procedure 15(a) (formerly known as Local Rule 2.33) of the United States District Court for the Northern District of Illinois, automatically referring bankruptcy cases and proceedings to this court for hearing and determination. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).
The Debtor asks this Court to reconsider and vacate its order entered on December 13, 2001, dismissing the Debtor's Chapter 11 case as having been filed in bad faith. In her motion, the Debtor argues that the Court did not follow cases which, according to the Debtor, hold that it is not bad faith to file a bankruptcy petition when a debtor has insufficient funds to secure a supersedeas bond. She also states that she would like to file her plan now, and has submitted a Plan of Reorganization dated December 20, 2001 to this Court. The Debtor also argues that the Court's failure to believe the Debtor's testimony at the evidentiary hearing is "prejudicial." The Debtor attached affidavits to the instant motion, purportedly to support the Debtor's earlier testimony.
Although the Debtor cited Fed.R.Bankr.P. 9024 as the basis for her motion to amend findings, a motion to alter or amend findings should actually be filed pursuant to Fed.R.Bankr.P. 9023. Although the Seventh Circuit has "expressed displeasure with moving parties who fail to denominate their post-judgment motions under the appropriate Rule," courts are to treat substantive, post-judgment motions filed within ten days of an order's entry as motions under Rule 59(e). Trustee v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 B.R. 963, 977 (Bankr. N.D. Ill. 1991). See also Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729 (7th Cir. 1999).
Therefore, the Debtor's motion will be treated as one filed under Fed.R.Bankr.P. 9023.
Rule 59 provides a procedure for the Court to correct "manifest errors of law or fact, or consider the import of newly discovered evidence." BNT Terminals, 125 B.R. at 977. As stated by the court in the BNT Terminals case:
[T]he function of a motion pursuant to Rule 59(e) is not to give the moving party another "bite of the apple" by permitting the arguing of issues and procedures that could and should have been raised prior to judgment. A motion brought under Rule 59(e) is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants. A motion requesting the court to alter or amend its judgment must at the very least submit newly discovered evidence or identify manifest errors of law or fact. The Court does not appreciate the filing of a motion under Rule 59(e) which simply reargues what the party has already put before the Court. The Seventh Circuit has warned litigants against making general allegations without support and explanation; otherwise they will forfeit their point.
Id. at 977-78 (citations omitted). Rule 59 does not allow a party one automatic opportunity to fix its own procedural failures, nor does it allow a party to introduce new evidence that it could have or should have presented prior to the judgment. Popovits, 185 F.3d at 730.
The Debtor has presented no newly discovered evidence. Instead, she has presented evidence which serves only to bolster the testimony she offered at the hearing. She presented the affidavit of Frank K. Heap, an attorney with Bell, Boyd Lloyd, in which he states that he does not intend to bill the Debtor for work done on her appeal in state court. She also presented the affidavit of Jeffrey M. Marks, in which he states that he has not billed her for work done on her appeal. The Debtor presented the affidavit of Philip J. McGuire, in which he states that he has been working on the Debtor's appeal and that he has requested extensions of time from the state court. The Debtor presented the affidavit of William G. Stone, in which he states that the Debtor's income is variable.
Not one of the affidavits presented by the Debtor offers evidence which was is new or was not available to the Debtor prior to the judgment being entered. There was no newly discovered evidence submitted, and therefore the Debtor's motion cannot be granted on the basis of newly discovered evidence.
The motion also does not show that there was a manifest error of law or fact. In her motion, the Debtor states that this Court did not follow a certain line of cases. However, the Debtor does not point out a manifest error of law that this Court made in citing the cases that it did.
The Debtor also does not show that this Court made a manifest error of fact. She does argue that this Court's findings with respect to her testimony are "prejudicial," but does not and cannot identify a manifest error of fact. If she is attempting to assert that this Court made a manifest error of fact by finding the Debtor's testimony unbelievable, she is incorrect. It is up to this Court, as the trier of fact, to determine whether or not to believe a witness. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).
Additionally, even if this Court believed all of the Debtor's testimony, the Court's judgment would not have changed. As clearly stated in the opinion issued on December 13, 2001, the Debtor had the burden of proving that she filed her Chapter 11 petition in good faith.
Specifically, to prove that the bankruptcy petition was filed in good faith, a debtor must show that her chances of reorganizing are at least reasonably likely. In re McCormick Road Assoc., 127 B.R. 410, 416 (Bankr.N.D.Ill. 1991). The Debtor here did not do so at the hearing, and she cannot attempt to do something that she should have done at trial now, by filing a plan today.
Conclusion
For the reasons set forth in the memorandum opinion and order, the motion of the Debtor for relief from judgment, to amend findings, and for other relief is denied.