Opinion
No. 11-05-14071 MS, Adv. No. 05-1149 M.
February 9, 2006
James R. Jurgens, Santa Fe, NM, Attorney for Plaintiff.
Martin S. Friedlander, Esq., Los Angeles, CA, Defendant pro se.
Chris W. Pierce, Albuquerque, NM, Attorney for Debtor.
Legal Defense and Maintenance Trust, Malibu, CA, Mariana Danilovic, Trustee.
Kitty Miller, Santa Fe, NM, Summit Investment Company, LLC, Attention: Jeffrey W. Potter.
Alice N. Page, Albuquerque, NM, U.S. Trustee.
Eric Sommer, Esq., Santa Fe, NM, Attorney for French French.
ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION
THIS MATTER is before the Court on Los Alamos National Bank's Motion ("LANB") for Reconsideration of Order Abstaining From Adjudicating This Adversary (the "Motion for Reconsideration") filed on January 23, 2006. Motions for reconsideration filed within ten days of the entry of a judgment or order are governed by Rule 59(e), Fed.R.Civ.P., as incorporated into the bankruptcy rules by Rule 9023, Fed.R.Bankr.P. See Buchanan v. Sherrill, 51 F.3d 227, 230 n. 2 (10th Cir. 1995) ("No matter how styled, we construe a post-judgment motion served within ten days of the entry of judgment and challenging the correctness of the judgment as a motion under Rule 59(e)."). Having considered the Motion for Reconsideration, the arguments of counsel and the portion of the Order Denying Motion to Dismiss and/or To Transfer Venue and Abstaining From Adjudicating This Adversary Proceeding (the "Order") in which the Court abstained from adjudicating this adversary proceeding, the Court will grant the Motion for Reconsideration.
Prior to the filing of this bankruptcy proceeding, LANB brought suit against the Debtor, the Legal Defense and Maintenance Trust of California Dated 8/25/03, Mariana Danilovic, Trustee and Martin S. Friedlander, which is currently pending in the First Judicial District Court, Santa Fe County, LANB v. Jeffrey W. Potter, et al., No. D-101-CV-2004-1145 (the "State Court Action"). Upon the filing of this bankruptcy proceeding, the State Court Action was stayed as to the Debtor.
On January 18, 2006, the Court entered an order approving an agreement between LANB and the Debtor to lift the stay with respect to the State Court Action. See Stipulated Order Granting Los Alamos National Bank's Motion to Modify Automatic Stay, attached as Exhibit 1 to Motion for Approval of Agreement Between Debtor and Los Alamos National Bank to Modify Automatic Stay filed on August 10, 2005 (Doc. No. 36) and approved by Order Approving Agreement Between Debtor and Los Alamos National Bank to Modify Automatic Stay entered on January 18, 2006 (Doc. No. 111) (collectively, the "Stay Order"). Despite the broad language of the Stay Order, the State Court Action does not seek resolution of the precise issue presented in this adversary proceeding, i.e. the rights of LANB, Friedlander and the other defendants to an escrow account at Rio Grande Title Company of Santa Fe containing proceeds of a pre-petition sale in the amount of $76,428.45 (the "Funds"). Moreover, several of the defendants named in this adversary proceeding who might assert a claim to the Funds, are not parties to the State Court Action.
THEREFORE, IT IS ORDERED that the Motion for Reconsideration is GRANTED and that portion of the Order indicating that the Court will abstain from hearing this adversary proceeding is set aside.
The scheduling conference previously set will be held as scheduled on February 17, 2006 at 11:15 am.