ROBERT GRANT, United States District Judge
I Statement of Proceedings
This Chapter 7 case comes before the Court on the Motion of the Chapter 7 debtor John F. McKeown (hereinafter: "Movant") filed on September 5, 2002 "For Reconsideration" or to Correct Errors as to this Court's Order of August 13, 2002 which granted the motion for stay relief and to abandon by the United States of America on behalf of its Agency, the Internal Revenue Service ("Order").
Fed.R. Bk. P. 9001 "General Definitions" defines a "Judgment" at 9001(7) as "any appealable order."; Fed.R. Bk. P. 9002 relating to "Meanings of Words in the Federal Rules of Civil Procedure When Applicable to Cases Under the Code", defines "Judgment" at 9002(5) as "any order appealable to an appellate court." Fed.R. Bk. P. 7054(a) which applies Fed.R.Civ.P. 54(a) defines a "judgment" to include a decree and any order from which an appeal lies. Fed.R. Bk. P. 9014 applies Fed.R.Bk. P. 7054 to contested matters also. The Order in issue falls within the foregoing definitions. For cases discussing what constitutes a final appealable order, See, In re Stoecker, 5 F.3d 1022, 1027 (7th Cir. 1993); In re Irvin, 950 F.2d 1318, 1319 (7th Cir. 1991); Official Committee of Unsecured Creditors, 943 F.2d 752, 755 (7th Cir. 1991); In re Unroe, 937 F.2d 346, 348 (7th Cir. 1991); In re Sandy Ridge Oil Co. Inc., 807 F.2d 1332, 1334 (7th Cir. 1986); In the Matter of James Wilson Associates, 965 F.2d 160, 166-67 (7th Cir. 1992); In the Matter of Met-L-Wood Corporation, 861 F.2d 1012, 1016 (7th Cir. 1988); In re Moody, 817 F.2d 365, 366-68 (7th Cir. 1987); In re Morse Electric Co., 805 F.2d 262, 264 (7th Cir. 1986); In re Cash Currency Exchange, Inc., 762 F.2d 542, 545-48 (7th Cir. 1985), cert. den. ___ U.S. ___, 106 S.Ct. 233, 88 L.Ed. 232; Matter of Boomgarden, 780 F.2d 657, 659 (7th Cir. 1985); In re Lybrook,, 951 F.2d 136, 137 (7th Cir. 1991); In re Klein, 940 F.2d 1075, 1077-78 (7th Cir. 1991); Matter of Kilgus, 811 F.2d 1112, 1116 (7th Cir. 1987); Kham Nate's Shoes No. 2 v. First Bank of Whiting, 908 F.2d 1351, 1354-55 (7th Cir. 1990); In re Szekely, 936 F.2d 897, 899-90 (7th Cir. 1991); In re Powelson, 878 F.2d 976, 980-81 (7th Cir. 1989); Matter of Riggsby, 745 F.2d 1153, 1154-1156 (7th Cir. 1984); Matter of James, 768 F.2d 923, 925-26 + N.3 (7th Cir. 1985); Matter of Barker, 768 F.2d 191, 192-94 (7th Cir. 1985).
The Order was set out on a Separate Document pursuant to Fed.R. Bk. P. 9021 dated August 13, 2002, and entered of record by the Clerk on the Docket pursuant to Fed.R. Bk. P. 5003(a) on August 14, 2002. Thus, the Order was effective as a final appealable order on August 14, 2002.
The time to file a Motion pursuant to Fed.R.Civ.P. 59 does not begin to run until the Judgment or Order has been both set out on a Separate Document pursuant to Fed.R. Bk. P. 9021, and the Judgment or Order is entered on the Docket Sheet by the Clerk pursuant to Fed.R. Bk. P. 5003(a). Only at that point is the Order a final appealable order. Fed.R. Bk. P. 9021 is an adaption of Fed.R.Civ.P. 58. Fed.R. Bk. P.5003(a) is an adaptation of Fed.R.Civ.P. 79. It should be noted that Fed.R. Bk. P. 9021 states that the reference in Fed.R.Civ.P. 79(a) should be read as a reference to Fed.R. Bk. P. 5003. Pursuant to Fed.R. Bk. P. 9021(a) a Judgment or Order is effective when entered pursuant to Fed.R.Bk. P. 5003(a). See, Matter of Kilgus, 811 F.2d 1112, 1117 (7th Cir. 1987); Rosser v. Chrysler Corp., 864 F.2d 1299, 1305 (7th Cir. 1988).
Motions to Reconsider are hybrid motions under the Federal Rules of Civil Procedure. The Ninth Circuit Bankruptcy appellate Panel in In re Curry and Sorensen, Inc., 57 B.R. 824 (BAP 9th Cir. 1986), stated as follows:
The federal rules do not contemplate motions for reconsideration.
Smith v. Hudson, 600 F.2d 60, 62 (6th Cir. 1979);
In re Morrison, supra, 26 B.R. at 60 [(N. Ohio 1982)]. However, there is a policy of liberally construing appellate rules to carry out the desire of Congress to promote fairness in the administration of justice and a just determination of litigation.
Bordallo v. Reyes, 763 F.2d 1098, 1102 (9th Cir. 1985). Therefore, motions for reconsideration have traditionally been treated as motions to alter or amend under Rule 59(e), Fed.R.Civ.P., if the motion draws into question the correctness of the trial court's decision.
See, In re Branding Iron Steak House, supra, 536 F.2d at 301 [
536 F.2d 292 (9th Cir. 1976)];
Bestan Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019 (9th Cir. 1983);
In re 6 40 Inv. Group, Inc., supra, 752 F.2d at 515-16 [(
752 F.2d 515) (10th Cir. 1985)].
Id. 57 B.R. at 827.
In re BNT Terminals, Inc., 125 B.R. 963, 977 (Bankr. N.D. Ill. 1990) ("[U]nder the Federal Rules of Bankruptcy Procedure and the Federal Rules of Civil Procedure there is no such pleading as a `motion to reconsider' . . .") (
quoting, Sanders v. Clemco Industries, 862 F.2d 161, 168 (8th Cir. 1988)).
The Bankruptcy Court no longer has an inherent power to reconsider its prior orders, rather its post-judgment reconsideration power is controlled by Fed.R. Bk. P. 7052 applying Fed.R.Civ.P. 52, Fed.R. Bk. P. 9023 applying Fed.R.Civ. 59, and Fed.R. Bk. 9024 applying Fed.R.Civ.P. 60. See In re Leiter, 109 B.R. 922, 924-25 (Bankr. N.D. Ind. 1990) (citing, Matter of Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir. 1988)). The time to file a Motion to alter or amend a judgment or for a new trial is controlled by Fed.R.Civ.P. 59(b) and 59(e), as amended, and as made applicable by Fed.R. Bk. P. 9023. Those subsections state:
(b) Time of Motion. A motion for new trial shall be filed no later than 10 days after entry of judgment.
* * * *
(e) Motion to Alter or Amend a Judgment. Alter or Amend a judgment. A Motion to alter or amend a judgment shall be filed no later than 10 days after the entry of judgment. (emphasis supplied).
It should also be noted that Fed.R. Bk. P. 9006(b)(2) expressly prohibits the Court from enlarging the time to take action as made applicable by Fed.R. Bk. P. 9023. Federal Rule of Bankruptcy Procedure 9006(b)(2) states:
(2)
Enlargement Not Permitted. The court may not enlarge the time for taking action under Rules 1007(d), 1017(b)(3), 2003(a) and (d), 7052, 9023, and 9024.
A Motion to Alter, Amend or for a New Trial pursuant to Fed.R.Civ.P. 59, as made applicable by Fed.R. Bk. P. 9023, must be filed within ten (10) days from the date of entry of the Judgment Order. See Footnote 2, supra. The Court lacks the power to extend or enlarge the time for such a motion. See Varhol v. National Railroad Passenger Corporation, 909 F.2d 1557, 1561 (7th Cir. 1990); Marane, Inc. v. McDonald's Corporation, 755 F.2d 106, 111 (7th Cir. 1985); Sinett, Inc. v. Blairex Laboratories, Inc., 909 F.2d 253 (7th Cir. 1990); Nugent v. Yellow Cab Company, 295 F.2d 794, 796 (7th Cir. 1961); In re B.J. McAdams, Inc., 999 F.2d 1221, 1223-25 (8th Cir. 1993); Bailey v. Sharp, 782 F.2d 1366, 1367-68 (7th Cir. 1986), appeal after remand, 811 F.2d 366 (7th Cir. 1986); In the Matter of Embrey, 56 B.R. 626, 627 (Bankr. W.D. Mo. 1986).
The United States Court of Appeals, Seventh Circuit, in the case of United States v. Deutsch, 981 F.2d 299 (7th Cir. 1992), adopted a "bright-line" test, and concluded that all substantive motions challenging a Judgment on the merits served [now filed] within ten days of the rendition of the judgment fall within Rule 59, and all substantive motions to alter or amend a judgment served [now filed] more than ten days after entry of the judgment are to be evaluated under Rule 60(b). Thus, untimely Rule 59 Motions will be analyzed under rule 60(b), and substantive motions served [now filed] from the eleventh day on must be shaped to the specific grounds for modification or reversal listed in Rule 60(b). Id., 981 F.2d at 300-02. See also Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994).
Accordingly, inasmuch as the final order being attacked by the Movant was entered over ten days before the Movant's Motion was filed, the Motion can only be considered under Rule 60(b), as made applicable by Fed.R. Bk. P. 9024. However, Rule 60(b) is not intended to correct errors of law made by the Court in the underlying decision which resulted In the final judgment. McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir. 1984). A party "cannot avoid the time limits on filing an appeal by filing a Rule 60(b)( 1) motion challenging the district court's legal rulings and then appealing from a denial of that motion." Id., ( quoting, Bank of California, N.A. v. Arthur Anderson Co., 709 F.2d 1174, 1178 (7th Cir. 1983)). The appropriate way to seek review of alleged legal errors is by timely appeal; a 60(b) motion is not a substitute for an appeal or a means to enlarge indirectly the time for appeal. Id., Kagan v. Caterpillar Tractor, 795 F.2d 601, 606 (7th Cir. 1986).
The Seventh Circuit has held that "[r]elief from a judgment under Rule 60(b) is an extraordinary remedy and is granted only in exceptional circumstances." United States v. One 1979 Rolls-Royce Comiche Convertible, 770 F.2d 713, 716 (7th Cir. 1985); C.K.S. Engineers, Inc. v. White Mountain Gypsum Company, 726 F.2d 1202, 1204 (7th Cir. 1983); Ben Sager Chemical International v. Targosz Co., 560 F.2d 805, 809 (7th Cir. 1977). Generally, a movant must show three elements to obtain relief: (1) "good cause" for the default; (2) "quick action to correct it"; and, (3) a "meritorious defense" to the complaint. Pretzel Stouffer v. Imperial Adjustors, Inc., 28 F.3d 42, 45 (7th Cir. 1994); United States v. DiMucci, 879 F.2d 1488, 1495 (7th Cir. 1989); United States v. One 1979 Rolls-Royce Comiche Convertible, 770 F.2d at 716, supra; Breuer Electric Mfg. Co. v. Tornado systems of America, Inc., 687 F.2d 182, 185 (7th Cir. 1982). The Motion by the Movant states no substantive grounds whatsoever based upon Fed.R.Civ.P. 60(b), as made applicable by Fed.R. Bk. P. 9024, which would form a basis to set aside the Order in question.
In the present case, the Order was entered on August 14, 2002. The Motion to Reconsider or to Correct Errors was not filed by the Movant until September 5, 2002. In computing the ten day period under Fed.R.Civ.P. 59, the first day, or the date of the entry of the judgment is excluded, and the last day, or tenth day is counted. Thus, the tenth day after the entry of the judgment was August 26, 2002 in that August 24, 2002 was a Saturday and August 25, 2002 was a Sunday. Therefore, the Motion to Reconsider or to Correct Errors filed on September 5, 2002, shall be denied as untimely to the extent it is based upon Fed.R.Civ.P. 59, as made applicable by Fed.R. Bk. P. 9023; and said motion states no grounds for relief pursuant to Fed.R.Civ.P. 60, as made applicable by Fed.R. Bk. P. 9024.
IT IS THEREFORE ORDERED that the Motion to Reconsider or Correct Errors by the Debtor as to this Court's Order entered August 14, 2002 is hereby DENIED.