Opinion
No. 04-41044 TK.
October 23, 2007
MEMORANDUM RE TRUSTEE'S MOTION FOR RECONSIDERATION
On October 11, 2007, John Kendall, the chapter 7 trustee, (the "Trustee") filed a motion for reconsideration of the Court's order of July 14, 2006 (the "Relief From Stay Order"). The Relief From Stay Order was affirmed by the United States District Court for the Northern District of California and is currently on appeal to the Ninth Circuit Court of Appeals. The first brief is due December 31, 2007.
Accordingly, the Trustee's motion recognizes that at present the Court has no jurisdiction to reconsider the Relief From Stay Order. Instead, it simply asks the Court to indicate whether it would be willing to entertain a motion for reconsideration. If so, the Trustee will then ask the Court of Appeals to remand the matter to the Court for reconsideration.
It is the Court's procedure to review motions for reconsideration for merit before permitting them to be set for hearing. Although acknowledging that no opposition brief is appropriate at this time, the adverse parties, Burlingame Capital Partners II, L.P. and Electrochem Funding, LLC (collectively "Burlingame"), have filed a procedural opposition to the motion. The Court has reviewed the motion and the procedural opposition. However, it is not yet prepared to determine whether the motion is procedurally improper or whether it has sufficient merit to be set for hearing.
The motion for reconsideration recognizes that the issues raised by this motion are similar to those raised by a motion for reconsideration of an adversary proceeding judgment filed by Burlingame. Burlingame's motion is set for hearing on November 8, 2007. The Court will defer making a decision regarding the propriety and substantiality of the Trustee's motion for reconsideration until after that hearing.