In re: Jeannette Elaine Curran Debtor.
Fred Charles Moon, Trustee - Appellee Jeannette Elaine Curran Debtor - Appellant,
Submitted: January 3, 2019
from United States Bankruptcy Court for the Western District
SCHERMER, SHODEEN and SANBERG, Bankruptcy Judges.
SHODEEN, BANKRUPTCY JUDGE
Debtor, Jeannette Curran, appeals the Bankruptcy
Court's denial of her Motion to Reconsider the
Order entered which indefinitely extended the deadlines for
payment of the last two installments of her filing fee. For
the reasons that follow, we affirm.
filed a voluntary chapter 7 petition simultaneously with an
application to waive the filing fee. Her application was
denied, and she was ordered to pay four equal installments on
specific dates between April and July 2018. After conducting
the 341 meeting the Chapter 7 Trustee filed objections to
Curran's exemption claims and an adversary proceeding to
recover real estate she transferred pre-petition. Curran
amended her schedules and objections to those amendments were
lodged by the Trustee. His objections to exemptions were
sustained and sanctions were imposed against Curran. She then
moved to voluntarily dismiss her bankruptcy case which was
denied as well as her motion to reconsider that ruling.
installment payments were timely made by Curran. When the
third installment payment was not received a standard order
was entered to show cause why the case should not be
dismissed. The Trustee filed a response requesting that
automatic dismissal of the case for non-payment of the filing
fee be denied. On June 22, 2018 the Bankruptcy Court entered
an order vacating the Order to Show Cause which stated:
"The Court will extend the Third and Final Installment
deadlines indefinitely pending the Chapter 7 Trustee's
filing of a Final Report or NDR." On July 12, 2018
Curran asked the Court to reconsider this order. Her filing
was construed as a motion made under Rule 60(b). The Court
denied relief and Curran appealed.
order denying relief under Rule 60(b) is reviewed for abuse
of discretion. Needler v. IRS (In re Burival), 449
B.R. 371, 377 (B.A.P. 8th Cir. 2014). An abuse of
discretion occurs when a court's judgment is based on
either clearly erroneous facts or conclusions of law.
Noah v. Bond Cold Storage, 408 F.3d 1043, 1045
(8thCir. 2005); Pettry v. Patriot Coal
Corp., 511 B.R. 563, 565 (B.A.P. 8th Cir.
appeal from the denial of a Rule 60(b) motion does not raise
the underlying judgment for our review but only the question
of whether the district court abused its discretion in ruling
on the Rule 60(b) motion." Noah, 408 F.3d at
1045 (citations omitted). Curran's request for
reconsideration was filed outside of the 14 day time period
for a timely appeal of the June 22, 2018 order. Consequently,
the result of that order is not the subject of this appeal.
Fed. R. Bank. P. 8022(a)(1); Gey Assocs. Gen. P'ship
v. 310 Assocs. (In re 310 Assocs.), 346 F.3d 31, 35 (2d
Cir. 2003) (rule 60(b) motion is not a vehicle to assert a
time barred appeal). Our review is strictly limited to the
merits of Curran's Rule 60(b) motion.
Rule of Civil Procedure 60(b)(1) allows a court to relieve a
party from a final judgment, order or proceeding for
"mistake, inadvertence, surprise, or excusable
neglect." It also includes a catch-all provision that
allows a court to consider granting relief where it is
justified for any other reason. Fed.R.Civ.P. 60(b)(6). Rule
60(b) motions are left to the sound discretion of the court.
"Rule 60(b)(1) relief will not be granted merely upon a
showing of mistake. The movant must establish a meritorious
defense, lack of prejudice to the plaintiff and freedom from
culpability." Forbes v. Forbes (In re Forbes),
218 B.R. 48, 52 (B.A.P. 8th Cir. 1998) (citations omitted).
"Reversal of a district court's denial of a Rule
60(b) motion is rare because Rule 60(b) authorizes relief in
only the most exceptional of cases." In re
Burival, 449 B.R. at 377.
briefs contain extensive and repetitive factual argument
expressing frustration with the bankruptcy process but she
fails to identify any clearly erroneous facts or an incorrect
application of the law that would entitle her to relief under
any of the circumstances identified in Rule 60(b). We see no
error or abuse ...