FILED
1 JUL 02 2013
SUSAN M SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-12-1313-DKiPa
)
6 AVRAM MOSHE PERRY, ) Bk. No. 09-11476-GM
)
7 Debtor. ) Adv. No. 10-01356-GM
______________________________)
8 )
AVRAM MOSHE PERRY, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M1
11 )
KEY AUTO RECOVERY; CHASE AUTO )
12 FINANCE, )
)
13 Appellees. )
______________________________)
14
Argued and Submitted on June 20, 2013
15 at Pasadena, California
16 Filed - July 2, 2013
17 Appeal from the United States Bankruptcy Court
for the Central District of California
18
Honorable Geraldine Mund, Bankruptcy Judge, Presiding
19
20 Appearances: Appellant Avram Moshe Perry argued pro se;
April C. Balanque, Esq. of Poliquin & DeGrave LLP
21 argued for appellee Key Auto Recovery; Holly Jo
Nolan, Esq. of Solomon, Grindle, Silverman &
22 Wintringer, APC argued for appellee Chase Auto
Finance.
23
24 Before: DUNN, KIRSCHER and PAPPAS, Bankruptcy Judges.
25
26 1
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
1 The debtor, Avram Moshe Perry, appeals the bankruptcy
2 court’s order denying his ex parte motion for reconsideration of
3 an order closing his adversary proceeding, Perry v. Chase Auto
4 Finance et al., 10-1356-GM.2 We AFFIRM.
5
6 FACTS3
7 Several years prepetition, the debtor financed the purchase
8 of a 2001 Nissan Pathfinder (“Nissan”) through Chase Auto Finance
9 (“Chase”), granting Chase a security interest in the Nissan.4
10 The debtor later defaulted on payments to Chase.
11 Nine days before filing his chapter 7 bankruptcy petition on
12
2
13 Unless otherwise indicated, all chapter, section and rule
references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532, and
14 to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
The Federal Rules of Civil Procedure are referred to as “Civil
15 Rules.”
16 3
The debtor did not provide us with a number of documents
17 relevant to this appeal. We therefore obtained access to and
took judicial notice of these documents from the bankruptcy
18 court’s electronic docket. See O’Rourke v. Seaboard Sur. Co.
19 (In re E.R. Fegert, Inc.),
887 F.2d 955, 957-58 (9th Cir. 1988);
Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),
293 B.R.
20 227, 233 n.9 (9th Cir. BAP 2003).
21 4
The debtor is no stranger to us; he has filed numerous
22 prior appeals, all of which have focused on a single asset, the
Nissan.
23 The bankruptcy court concisely set forth in its memorandum
of opinion (“memorandum decision”), entered May 16, 2012, the
24
facts of the underlying bankruptcy case and the related adversary
25 proceedings. See 10-1356-GM adv. proc. docket no. 61. We have
incorporated here many of the facts from the bankruptcy court’s
26 memorandum decision, as well as those from another appeal, Perry
27 v. Key Auto Recovery et al., CC-10-1395-DMkKi. We have recounted
those facts relevant to the present appeal for ease of reference
28 and clarity.
2
1 February 11, 2009, the debtor advised Chase that he intended to
2 file for bankruptcy protection. Despite this forewarning,
3 Chase’s agent, Key Auto Recovery (“Key Auto”), repossessed the
4 Nissan on February 6, 2009.5
5 Nearly a week after he filed his bankruptcy petition, the
6 debtor initiated a state court action against Chase and Key Auto
7 (“state court action”).6 He alleged that they unlawfully
8 repossessed the Nissan and demanded that they return it.7 The
9
10 5
Chase later moved for relief from stay in the bankruptcy
11 case, seeking to sell the Nissan (“relief from stay motion”).
The debtor opposed Chase’s relief from stay motion. He also
12 sought a “temporary restraining order” or other “injunctive
13 relief” against Chase and Key Auto requiring Chase and/or Key
Auto to return the Nissan to him.
14 The bankruptcy court granted Chase’s relief from stay
motion. It also denied the debtor’s request for injunctive
15 relief.
16 At the April 9, 2009 hearing on Chase’s relief from stay
motion, the bankruptcy court explained to the debtor that Chase
17 had repossessed the Nissan “before [he] filed bankruptcy.
Therefore, there was no automatic stay.” See bankruptcy docket
18
no. 48, Tr. of April 9, 2009 hr’g, 9:14-16. It went on to state
19 that it “[did not] deal with how the repossession [took] place
. . . . That’s state law, and it’s supposed to take a state
20 judge to do it.” See bankruptcy docket no. 48, Tr. of April 9,
21 2009 hr’g, 10:1-4.
6
22 According to Key Auto, because it determined the debtor to
be a vexatious litigant, the state court required him to post
23 security in order to proceed with the state court action. The
24 debtor failed to post security, so the state court action was
dismissed. The debtor moved for reconsideration, which the state
25 court denied. He then appealed to the state appellate court,
which dismissed the appeal on November 15, 2012.
26
7
27 The debtor alleged that Key Auto illegally repossessed the
Nissan by having one of its employees enter his apartment
28 (continued...)
3
1 debtor asserted various claims against Chase and Key Auto,
2 including breach of contract, fraud and abuse of process. The
3 debtor also sought actual and punitive damages against them.
4 Notably, the state trial court and the state appellate court
5 later declared the debtor to be a vexatious litigant.
6 The debtor initiated two adversary proceedings against Chase
7 and Key Auto, filing one complaint on February 5, 2010 (10-1043-
8 GM), and the other complaint on August 19, 2010 (10-1356-GM).
9 In the first adversary proceeding (10-1043-GM), the debtor
10 sought injunctive relief and to quiet title to the Nissan
11 (“injunctive relief adversary proceeding”). He also asserted
12 claims for fraud, breach of contract and abuse of process, among
13 others. The debtor further sought damages for the alleged
14 wrongful repossession of the Nissan.
15 Chase moved that the bankruptcy court abstain from
16 adjudicating the claims in the injunctive relief adversary
17 proceeding as they were based on state law. The bankruptcy court
18 declined to abstain. However, it decided to stay the injunctive
19 relief adversary proceeding pending the outcome of the state
20 court action.8
21
7
22 (...continued)
complex’s parking garage, break into the Nissan and tow it away.
23
8
At the April 28, 2010 hearing, the bankruptcy court
24
determined that it would “stay this action, because of a lot of
25 it [was] duplicative of what’s happening in state court.”
10-1043-GM adv. proc. docket no. 26, Tr. of April 28, 2010 hr’g,
26 1:20-22. It decided to “just let [the injunctive relief
27 adversary proceeding] sit here with nothing happening until the
state court action [was] completely resolved. And then [the
28 (continued...)
4
1 In the second adversary proceeding (10-1356-GM), the debtor
2 sought to remove the state court action to the bankruptcy court
3 (“removal adversary proceeding”). Chase subsequently moved to
4 remand the removal adversary proceeding to state court (“remand
5 motion”).
6 Before the September 29, 2010 hearing on the remand motion
7 (“remand motion hearing”), the bankruptcy court issued a
8 tentative ruling. It granted Chase’s remand motion, noting that
9 the removal adversary proceeding was “the same” as the injunctive
10 relief adversary proceeding, which “[had] already been stayed
11 pending a result from the state court.” See 10-1356-GM adv.
12 proc. docket no. 16. The bankruptcy court moreover pointed out
13 that it “already decided that nothing in this case affect[ed]
14 bankruptcy law and everything should be heard by the state
15 court.”9
Id.
16 At the remand motion hearing, the bankruptcy court informed
17 the debtor that
18 [t]he issues that you’re raising are state issues, that
[Chase and Key Auto] went in and they wrongfully
19 repossessed your car, and it took place before the
bankruptcy. Now, if there had been no bankruptcy, it
20 would be tried in state court. You have nothing to
21
8
22 (...continued)
bankruptcy court would] take a look and see [where they] were.”
23 10-1043-GM adv. proc. docket no. 26, Tr. of April 28, 2010 hr’g,
24 5:6-9. It wanted the debtor to “[t]ry all [his] facts in state
court. Then [the bankruptcy court would] take a look at it in
25 terms of what’s here and we’ll decide whether there’s anything
left to go forward with here.” 10-1043-GM adv. proc. docket
26 no. 26, Tr. of April 28, 2010 hr’g, 6:3-6.
27 9
It also mentioned that the debtor’s request for removal
28 was improper and untimely.
5
1 bring it into federal court, except the fact that there
is a bankruptcy. And what I did was I said, let the
2 state court sort out state law, that’s what they’re
supposed to do, and then I’ll take a look and see if
3 there’s any bankruptcy issues remaining, and I’ll deal
with that after they’re through, because I don’t want
4 to run two things parallel to each other.
5 See 10-1356-GM adv. proc. docket no. 34, Tr. of September 29,
6 2010 hr’g, 6:14-25.
7 The bankruptcy court advised the debtor that it would put
8 the tentative ruling on the record. It later entered an order
9 granting Chase’s remand motion (“remand order”).10
10 Because of the various appeals pending at the time in the
11 bankruptcy case and the adversary proceedings, the bankruptcy
12
13
10
14 The debtor appealed the bankruptcy court’s remand order
to this Panel (CC-10-1395). The Panel affirmed the bankruptcy
15 court in an unpublished memorandum decision. He subsequently
moved for a rehearing, which this Panel denied. The debtor then
16
moved for reconsideration, which this Panel also denied.
17 The debtor appealed to the Ninth Circuit (11-60068). The
Ninth Circuit dismissed the appeal because the debtor did not
18 respond to its order requiring him to pay docketing and filing
19 fees, thereby failing to perfect the appeal.
The debtor also moved for an order to show cause to clarify
20 why the remand order should not be set aside as Chase listed the
incorrect adversary proceeding number and lodged the remand order
21 untimely (“OSC motion”). The bankruptcy court denied the
22 debtor’s OSC motion, entering its order on March 9, 2012 (“order
re: OSC motion”).
23 Unsurprisingly, the debtor appealed to the district court
the order re: OSC motion (district court case no. 12-2599). We
24
take judicial notice of the district court docket in the appeal.
25 The district court dismissed the debtor’s appeal (“district court
dismissal order”) on the ground that the order re: OSC motion was
26 a non-appealable order.
27 The debtor then appealed the district court dismissal order
to the Ninth Circuit. That appeal currently is pending
28 (12-55672).
6
1 court held several status conferences.11 A few days before the
2 status conference on May 8, 2012 (“status conference”), the
3 bankruptcy court issued a tentative ruling.
4 In its tentative ruling, the bankruptcy court proposed to
5 dismiss both adversary proceedings as they involved issues
6 identical to those in the state court action. The bankruptcy
7 court orally adopted the tentative ruling at the status
8 conference. It did not enter an order adopting the tentative
9 ruling, however.
10 The bankruptcy court later issued its memorandum decision,
11 altering the tentative ruling. Instead of dismissing the
12 injunctive relief adversary proceeding, the bankruptcy court
13 decided to set a further status conference because it already had
14 stayed the matter pending the outcome of the state court action.
15 As for the removal adversary proceeding, the bankruptcy
16 court decided to close it because “there [was] nothing more for
17 [the bankruptcy] court to do on [it],” as all the appeals either
18 had become final or had been dismissed.12 See 10-1356-GM adv.
19 proc. docket no. 61. The bankruptcy court noted that “closing
20 [the] case was a mere ministerial act.”
Id.
21 On May 16, 2012, the bankruptcy court entered an order
22 consistent with its memorandum decision (“closing order”).
23
24 11
Several of these status conferences were joint status
25 conferences with the state court. The state court judge in fact
participated by phone in some of the status conferences.
26
12
27 The bankruptcy court mentioned, however, that the
district court dismissal order still remained pending on appeal
28 before the Ninth Circuit.
7
1 Two days later, in the injunctive relief adversary
2 proceeding, the debtor filed an ex parte motion for
3 reconsideration to vacate/set aside the tentative ruling (“first
4 motion to reconsider”).13 He claimed that the bankruptcy court
5 had “promised” him that it would adjudicate the state court
6 action and adversary proceedings upon resolution of his various
7 appeals and upon his approval to allow the bankruptcy court to
8 adjudicate them. Relying on this “promise,” he waited until the
9 appeals were resolved and for the bankruptcy court to renew its
10 offer to adjudicate the state court action and the adversary
11 proceedings. Had he known that the bankruptcy court intended to
12 dismiss the adversary proceedings, the debtor instead would have
13 accepted its offer to have it adjudicate the state court action
14 and the adversary proceedings.
15 The debtor further claimed to have new evidence
16 demonstrating that Chase did not have a valid lien in the Nissan.
17 Specifically, he asserted that at the time Chase repossessed the
18 Nissan, he owned it free and clear, as Chase had sent him the
19 certificate of title in August 2004. He maintained that Chase
20 had “fraudulently created . . . a title to the [Nissan]” so that
21 it could continue to receive payments from him and later
22 repossess the Nissan.
23 The bankruptcy court denied the first motion to reconsider
24 based on the reasons set forth in its memorandum decision. It
25
26 13
We note that the debtor characterizes the bankruptcy
27 court’s tentative ruling as “the May 8, 2012 order.” As we
mentioned earlier, the bankruptcy court did not enter an order
28 adopting its tentative ruling.
8
1 further pointed out that, contrary to the debtor’s arguments, it
2 did not dismiss the adversary proceedings. The bankruptcy court
3 therefore determined that his first motion to reconsider was
4 moot.14
5 On May 29, 2012, in the removal adversary proceeding, the
6 debtor filed a “renewed motion” for reconsideration of the
7 tentative ruling and the closing order (“second motion to
8 reconsider”), requesting a hearing on it. He repeated his claim
9 from the first motion to reconsider: that he had new evidence
10 regarding Chase’s allegedly fraudulent lien in the Nissan.
11 The debtor further contended that the change in the
12 bankruptcy court’s ruling was prejudicial to him because the
13 bankruptcy court did not provide him notice of the change or its
14 reasons for the change. He moreover argued that the bankruptcy
15 court denied him due process by refusing to set his motion to
16 reconsider for hearing, even though he had new evidence.
17 The bankruptcy court denied the second motion to reconsider
18 without a hearing. In the order entered on June 4, 2012 (“second
19 reconsideration order”), the bankruptcy court explained that,
20 with respect to the injunctive relief adversary proceeding, the
21 closing order “merely continued the status conference to a future
22 date.”
23 As for the removal adversary proceeding, the bankruptcy
24 court pointed out that, “once all appeals have been resolved, it
25 will be ready to be closed.” It explained that the closing of
26
14
27 The debtor appealed the bankruptcy court’s order denying
his first motion to reconsider to this Panel (CC-12-1314). The
28 appeal was dismissed as interlocutory.
9
1 the removal adversary proceeding was “a ministerial act and [was]
2 not equivalent to dismissal.” The bankruptcy court had issued
3 the closing order “so that the clerk’s office [would] monitor
4 that case and close it at the appropriate time.”
5 The debtor timely appealed the second reconsideration
6 order.15
7
8 JURISDICTION
9 The bankruptcy court had jurisdiction under 28 U.S.C.
10 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.
11 § 158.
12
13 ISSUE16
14
15 15
In his notice of appeal, the debtor referenced two orders
16 supposedly entered on May 8, 2012, and July 7, 2010. Reviewing
the dockets for both adversary proceedings, we did not find any
17 orders entered on those dates.
18 16
It is unclear whether the debtor intended to appeal the
19 closing order. In his notice of appeal and opening brief, he
argues that he did not have an opportunity to be heard on the
20 dismissal of the adversary proceedings because the bankruptcy
court failed to provide him notice of the dismissal. Because the
21 bankruptcy court did not provide notice of the dismissal, it
22 abused its discretion in dismissing the adversary proceedings.
The debtor places too much importance on the tentative
23 ruling. As we mentioned earlier, the bankruptcy court did not
adopt its tentative ruling – it changed its ruling in the
24
memorandum decision and closing order. It did not dismiss the
25 removal adversary proceeding but simply closed it. By closing
the removal adversary proceeding, the bankruptcy court simply
26 carried out a ministerial act, analogous to entering a closing
27 order in a main bankruptcy case, which always can be reopened for
cause. See, e.g., §350(b); Rule 5010; Rule 9024 (a motion to
28 (continued...)
10
1 Did the bankruptcy court abuse its discretion in denying the
2 motion to reconsider?
3
4 STANDARDS OF REVIEW
5 We review the bankruptcy court’s denial of a motion for
6 reconsideration for abuse of discretion. Weiner v. Perry,
7 Settles & Lawson, Inc. (In re Weiner),
161 F.3d 1216, 1217 (9th
8 Cir. 1998). We apply a two-part test to determine objectively
9 whether the bankruptcy court abused its discretion. United
10 States v. Hinkson,
585 F.3d 1247, 1261-62 (9th Cir. 2009)(en
11 banc). First, we “determine de novo whether the bankruptcy court
12 identified the correct legal rule to apply to the relief
13 requested.”
Id. Second, we examine the bankruptcy court’s
14 factual findings under the clearly erroneous standard.
Id. at
15 1262 & n.20. A bankruptcy court abuses its discretion if it
16 applied the wrong legal standard or its factual findings were
17 illogical, implausible or without support in the record.
18 TrafficSchool.com v. Edriver Inc.,
653 F.3d 820, 832 (9th Cir.
19 2011).
20 We may affirm on any ground supported by the record. Shanks
21
16
22 (...continued)
reopen a case under the Bankruptcy Code is not subject to the
23 one-year limitation of Rule 60(b)); In re Bosak,
242 B.R. 400,
403 (Bankr. N.D. Ohio 1999)(“The formality of closing a case is
24
ministerial in nature and, as such, in no manner impedes the
25 remedial rights of [parties].”). We therefore decline to address
this argument here.
26 Moreover, based on our review of the debtor’s notice of
27 appeal and opening brief, it appears that the bulk of his
argument concerns the bankruptcy court’s denial of his motion to
28 reconsider. We therefore focus our attention on that issue only.
11
1 v. Dressel,
540 F.3d 1082, 1086 (9th Cir. 2008).
2
3 DISCUSSION
4 A. Placing this appeal in context
5 At the outset, it is important to put this appeal in
6 context. First, as noted above, the bankruptcy court has
7 determined that the injunctive relief adversary proceeding and
8 the removal adversary proceeding cover the same claims. The
9 bankruptcy court did not close the injunctive relief adversary
10 proceeding and scheduled a further status conference. Further
11 proceedings in the injunctive relief adversary proceeding are
12 pending.
13 Second, the removal adversary proceeding commenced as a
14 state court lawsuit. The debtor removed it to bankruptcy court,
15 but the bankruptcy court granted Chase’s motion to remand it.
16 The debtor appealed that decision to this Panel, and we affirmed.
17 The debtor further appealed to the Ninth Circuit and moved to
18 proceed in forma pauperis. The motions panel of the Ninth
19 Circuit denied that motion “because we find that the appeal is
20 frivolous.” The Ninth Circuit later dismissed the debtor’s
21 appeal because the debtor did not pay the required appeal and
22 docketing fees.
23 Third, as reported by the parties at oral argument, the
24 state court ultimately dismissed the debtor’s remanded lawsuit, a
25 decision that had proceeded through the California appellate
26 courts to finality. See, e.g., Cadle Co. II, Inc. v. Sundance
27 Fin., Inc.,
154 Cal. App. 4th 622, 624 (Cal. Ct. App. 2007)(“the
28 judgment becomes final, i.e., after the determination of an
12
1 appeal, or, if no appeal is filed, after the time in which an
2 appeal could have been filed.”). Although the debtor has filed a
3 petition for writ of certiorari with the United States Supreme
4 Court to overturn that dismissal, even the debtor did not appear
5 very hopeful that his petition would be granted.
6 The closing order is not before us in this appeal, but in
7 these circumstances, we perceive no abuse of discretion or error
8 in the bankruptcy court’s concluding that it had nothing more to
9 do in the removal adversary proceeding and taking the ministerial
10 act of closing the removal adversary proceeding. It is in this
11 context that we proceed to consider debtor’s arguments in
12 appealing the second reconsideration order.
13 B. “Motions for reconsideration” generally
14 The Civil Rules do not recognize motions for
15 reconsideration. Captain Blythers, Inc. v. Thompson
16 (In re Captain Blythers, Inc.),
311 B.R. 530, 539 (9th Cir. BAP
17 2004). The Civil Rules do provide, however, two avenues through
18 which a party may obtain relief from an order: (1) a motion to
19 alter or amend judgment under Civil Rule 59(e) and (2) a motion
20 for relief from judgment under Civil Rule 60. Civil Rule 59(e)
21 applies to bankruptcy proceedings under Rule 9023, and Civil
22 Rule 60 applies to bankruptcy proceedings under Rule 9024.
23 Where a party files a motion for reconsideration within
24 fourteen days after the entry of the order, the motion is treated
25 as a motion to alter or amend the order under Civil Rule 59(e).17
26
17
27 As we mentioned earlier, Civil Rule 59(e) applies to
bankruptcy proceedings under Rule 9023. Originally, the deadline
28 (continued...)
13
1 Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp.,
248 F.3d
2 892, 898-99 (9th Cir. 2001)(citation omitted). Here, although
3 the debtor cited Civil Rule 60(b) in the second motion to
4 reconsider, we apply Civil Rule 59(e), as he filed it thirteen
5 days after the closing order was entered.
6 Civil Rule 59(e) allows for reconsideration of an order if
7 the bankruptcy court “(1) is presented with newly discovered
8 evidence, (2) committed clear error or the initial decision was
9 manifestly unjust, or (3) if there is an intervening change in
10 controlling law. There may also be other, highly unusual
11 circumstances warranting reconsideration.” School District
12 No. 1J v. AC&S, Inc.,
5 F.3d 1255, 1253 (9th Cir. 1993)(internal
13 citation omitted).
14 Reconsideration of orders after their entry is an
15 extraordinary remedy that courts should use sparingly “in the
16 interests of finality and conservation of judicial resources.”
17 Kona Enters., Inc. v. Estate of Bishop,
229 F.3d 877, 890 (9th
18 Cir. 2000)(quoting 12 James Wm. Moore et al., Moore’s Federal
19 Practice § 59.30[4](3d ed. 2000))(internal quotation marks
20 omitted). Courts need to “preserve the delicate balance between
21 the sanctity of final judgments and the incessant command of a
22 court’s conscience that justice be done in light of all the
23 facts.” In re Walker,
332 B.R. 820, 832 (Bankr. D. Nev.
24 2005)(quoting Kieffer v. Riske (In re Kieffer-Mickes, Inc.),
25
26 17
(...continued)
27 by which to file a motion for reconsideration under Civil Rule
59(e) was ten days, but Rule 9023 was amended in 2009 to extend
28 the time period to fourteen days.
14
1
226 B.R. 204, 209 (9th Cir. BAP 1998))(internal quotation marks
2 omitted).
3 On appeal, the debtor contends that the bankruptcy court
4 erred because: 1) it should have held a hearing on the second
5 motion to reconsider; and 2) it should have considered the “new”
6 evidence he earlier proffered in the first motion to reconsider
7 in the injunctive relief adversary proceeding. We address each
8 argument in turn.
9 C. No hearing was required on the second motion to reconsider
10 The debtor complains that the bankruptcy court abused its
11 discretion by refusing his request to set a hearing on the second
12 motion to reconsider. Generally, a motion for reconsideration
13 constitutes a contested matter under Rule 9014. See, e.g.,
14 Stephens v. Gomez (In re Gomez),
2012 WL 5938722 at *4 (9th Cir.
15 BAP 2012)(“A motion for reconsideration of an order dismissing an
16 adversary proceeding is a contested matter under Rule 9014
17 . . . .”). When such a motion is filed, Rule 9014(a) requires
18 that an opportunity for hearing be afforded to the party against
19 whom relief is sought.
20 However, under its local bankruptcy rules, the bankruptcy
21 court was not required to set a hearing on the second motion for
22 reconsideration. LBR 9013-1(a)(1) of the Local Bankruptcy Rules
23 (“LBR”) of the United States Bankruptcy Court for the Central
24 District of California provides, in relevant part, “Unless
25 otherwise ordered by the court, parties must . . . set for
26 hearing all contested matters . . . .” (Emphasis added.) The
27 debtor did not set his second motion to reconsider for hearing as
28 the LBRs required. He did not avail himself of the opportunity
15
1 to schedule a hearing on the second motion to reconsider that the
2 LBRs afforded. In these circumstances, LBR 9013-1 permitted the
3 bankruptcy court to decide to forgo a hearing altogether. The
4 bankruptcy court therefore did not abuse its discretion in
5 declining the debtor’s request to set a hearing on his second
6 motion to reconsider, raising matters that it previously had
7 considered and on which it had ruled.
8 D. “New evidence” was not presented properly before the
bankruptcy court
9
10 The debtor also contends that the bankruptcy court failed to
11 consider the “new evidence” he submitted in the first motion to
12 reconsider. He asserted that he “had recently found in [his]
13 storage copies of [various documents] . . . [he] had forgotten
14 [he] had.” See 10-1043-GM adv. proc. docket no. 78. The debtor
15 included copies of these documents as exhibits to the first
16 motion to reconsider.
17 The debtor relied on two documents in particular that he
18 claimed demonstrated that Chase had no lien against the Nissan.
19 He first referenced an “Application for Transfer by New Owner”
20 (“application”) that made no mention of Chase’s lien against the
21 Nissan.
22 He then referred to a computer printout of his account with
23 Chase (“account activity summary”). He highlighted certain
24 language in the account activity summary. This language stated:
25 “UNABL TO LOCATE THE CPY OF TITLE FXD TO CARRIE THE CONTRACT IS
26 UNABL TO BE LOC SUBMIT ANTHR RQUST FOR COPY OF TITLE RUSH TO BE
27 FXD TO ME.” According to the debtor, Chase was unable to locate
28 the certificate of title to the Nissan because it already sent it
16
1 to him in August 2004.
2 “A motion for reconsideration may not be used to raise
3 arguments or present evidence for the first time when they could
4 reasonably have been raised earlier in the litigation.” Marlyn
5 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873,
6 880 (9th Cir. 2009)(quoting Kona Enters., Inc.,
229 F.3d at 890
7 (internal quotation marks omitted)(emphasis in original)).
8 Here, the debtor could have submitted these documents
9 earlier to the bankruptcy court. (As noted above, the debtor
10 asserted that Chase had sent him the certificate of title to the
11 Nissan in August 2004!) He had forgotten about them, but found
12 them in storage. He reported no difficulty in obtaining these
13 documents nor provided any other reason for failing to unearth
14 and submit these documents sooner.
15 Moreover, by filing the second motion to reconsider, the
16 debtor is attempting to take a second bite at the apple. He even
17 unabashedly characterizes the second motion to reconsider as a
18 “renewed motion” in the caption. The bankruptcy court already
19 ruled on the first motion to reconsider, which the debtor
20 appealed. He cannot continue to repeat the same arguments in
21 slightly different motions and expect different consideration or
22 results. The bankruptcy court therefore did not abuse its
23 discretion in declining to consider his “new evidence.”
24
25 CONCLUSION
26 For the reasons set forth above, the bankruptcy court did
27 not abuse its discretion in denying the debtor’s second motion to
28 reconsider. We AFFIRM.
17
