- Bookmark
- Share
- CaseIQ
In re Giampa
NOT FOR PUBLICATION
Argued and Submitted at Las Vegas, Nevada, November 30, 2005
Appeal from the United States Bankruptcy Court for the District of Nevada. Hon. Eileen Hollowell and Hon. Bruce A. Markell, Bankruptcy Judges, Presiding. Bk. No. 02-13287-RCJ. Adv. No. 02-01305.
The two matters on appeal were heard and resolved by different judges (NV-04-1089 - Judge Hollowell; NV-04-1577 - Judge Markell). A third judge, Judge Lloyd King, signed the first order on appeal on behalf of Judge Hollowell.
Before: BRANDT, KLEIN, and MONTALI, Bankruptcy Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except when relevant under the doctrines of law of the case, res judicata or collateral estoppel. See 9th Cir. BAP Rule 8013-1.
Appellant twice moved for reconsideration or vacation of the order approving the in-court settlement of a bankruptcy adversary proceeding that she had brought to determine the dischargeability of her ex-husband's obligations under an order previously entered by a Nevada state court in an underlying marital dissolution. Agreeing with the bankruptcy court that appellant did not establish grounds for receding from the order resolving her adversary proceeding, which she had agreed to in open court, we AFFIRM.
I. FACTS
Appellant Victoria Giampa and Charles Giampa were divorced in 1998 in Nevada and entered into a divorce settlement agreement resolving property and support issues (including a property settlement equalization payment), which was incorporated into the Nevada court's decree (" Divorce Settlement"); we use the parties' terminology rather than " dissolution of marriage" as used in 11 Nev. Rev. Stat. Ch. 125.
On 28 March 2002, Charles filed a chapter 13 bankruptcy case, which was converted to chapter 7 and resulted in his discharge in September 2002.
Absent contrary indication, all section and chapter references are to the Bankruptcy Code, 11 U.S.C. § § 101-1330. " Rule" references are to the Federal Rules of Bankruptcy Procedure, " FRCP, " to the Federal Rules of Civil Procedure, and " FRE, " to the Federal Rules of Evidence.
With the assistance of counsel, Victoria filed a timely complaint in the chapter 7 case to establish as nondischargeable Charles' obligations under the Divorce Settlement under § § 523(a)(5) and (15).
Appellant did not include the complaint and several other relevant documents in the excerpts of record. We obtained copies from the bankruptcy court's docket via PACER, and take judicial notice of them. FRE 201.
The adversary proceeding was resolved and terminated following a settlement conference by an order entered 9 September 2003 in open court, on the record and in Victoria's presence, and with her explicit consent and that of her counsel (" Settlement Order").
The Settlement Order provided that child support, alimony, alimony arrears, and the property settlement equalization payment are nondischargeable and called for various property transfers to satisfy the obligations. It further required Charles to execute a confession of judgment for $10, 000, to be recorded in the event of default, and that he refrain from seeking discharge of any of the obligations. In addition, it barred both Charles and Victoria from seeking modification of the terms of the agreement.
On 18 November 2003, Victoria, now representing herself, filed an untimely notice of appeal of the Settlement Order, which appeal was dismissed. She concurrently filed a motion seeking, first, to vacate the Settlement Order under FRCP 60(b), applicable in bankruptcy via Rule 9024, second, to obtain an order of contempt, and, third, to obtain an order conforming the Settlement Order to the evidence. She alleged that her counsel, Charles, and his counsel had committed a fraud on the court. Victoria alleged that she had been misled as to the value of certain assets, that financial documents had been forged, that assets had been fraudulently transferred, and the Charles had not complied with the Divorce Settlement.
Also not in appellant's excerpts; again, we take judicial notice from the bankruptcy court's docket.
Judge Hollowell denied the motions, reasoning that the motion for reconsideration had not been filed in time to affect the finality of the Settlement Order terminating the adversary proceeding, that none of the requirements for obtaining relief from the Settlement Order had been met, and that the court lacked jurisdiction over the counsel. Further, she observed:
The parties have agreed that the [Divorce Settlement] is not dischargeable . . . so everything that this Court can do has been done.
We are not a domestic relations court. And if you believe that things have happened that give you a cause of action in domestic relations court, then that's where you need to prosecute it.
. . . .
Much of what you've argued in your pleadings goes back to the original property settlement agreement. This Court does not have jurisdiction over the original property settlement agreement.
All of the relief is denied, and I'm going to caution you that if you continue to file pleadings in this court against the attorneys you are going to be subject to some sanctions by the Court . . . .
. . . .
If you have objections, then you find the right forum to do it [in]. If you have a disagreement with your former lawyer, then you file the appropriate bar complaint. We are not the court to bring those actions in, so the relief is denied.
Transcript, 19 December 2003, pages 4-5. An order denying the motions was entered on 3 February 2004; Victoria timely appealed (No. 04-1089).
As the order did not dispose of all the claims in the adversary proceeding, on 22 September 2004 we issued an order requiring Victoria to obtain a final judgment. At her request, the bankruptcy court entered an order on 10 November 2004 confirming that the adversary proceeding had been dismissed in September of 2003.
Meanwhile, on 22 October 2004, Victoria filed another very similar " motion for reconsideration pursuant to FRCP 60(b) . .., " which included motions to amend her complaint and for an evidentiary hearing. She again sought to have the Settlement Order set aside on the basis of fraud. Judge Markell denied that motion, struck the amended complaint, and warned Victoria of sanctions should she again file a meritless motion. Order Denying . . . Second Amended Motion for Reconsideration . .., 8 November 2004. Victoria timely appealed (No. 04-1577). The appeals were consolidated for briefing.
Also not in appellant's excerpts; again, we take judicial notice from the bankruptcy court's docket.
II. JURISDICTION
The bankruptcy court had jurisdiction via 28 U.S.C. § 1334 and § 157(b)(1) and (b)(2)(I), and we do under 28 U.S.C. § 158(c).
III. ISSUES
A. Whether we should strike appellant's supplemental brief and supplemental excerpts of record.
B. Whether the bankruptcy court abused its discretion in denying appellant's motion to vacate under FRCP 60(b).
C. Whether the bankruptcy court abused its discretion in denying appellant's second motion to reconsider.
IV. STANDARD OF REVIEW
A bankruptcy court's ruling on a motion for relief from judgment is reviewed for abuse of discretion. In re Hammer, 112 B.R. 341, 345 (9th Cir. BAP 1990), aff'd, 940 F.2d 524 (9th Cir. 1991). A bankruptcy court necessarily abuses its discretion if it bases its decision on an erroneous view of the law or clearly erroneous factual findings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1991). Under the abuse of discretion standard, we must have a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached before reversal is proper. In re Black, 222 B.R. 896, 899 (9th Cir. BAP 1998).
V. DISCUSSION
Victoria's briefs are lengthy and difficult to understand. The essence of her argument is that the bankruptcy court should have set aside the Settlement Order because she had entered into it based on erroneous information given to her by Charles and his attorneys, and because she was inadequately represented. She makes similar allegations regarding the Divorce Settlement.
Victoria does not argue that the bankruptcy court erred in denying her motion for contempt against the attorneys for lack of personal jurisdiction. Accordingly, she has waived that argument, In re Sedona Inst., 220 B.R. 74, 76 (9th Cir. BAP 1998), aff'd, 21 Fed.Appx. 723 (9th Cir. 2001) and, in any event, the bankruptcy court's conclusion was correct.
A. Supplemental Brief
Victoria submitted a supplemental brief, in which she contends that she recently discovered that the Nevada Supreme Court suspended her former counsel from the practice of law on 26 April 2005, and supplemental excerpts of record containing the state bar's complaint and the suspension order. She alleges that this development supports her argument that she did not have effective assistance of counsel during settlement negotiations. Charles did not object to the supplemental brief in his responsive brief or otherwise. Victoria later filed a reply brief in which she reiterated the information regarding her former counsel's suspension.
As the information sought to be included is also in the reply brief, and in any event has no bearing on the merits of this appeal, we will strike the supplemental brief and the supplemental excerpts.
B. 04-1089 - First motion for reconsideration
As noted, the bankruptcy court denied Victoria's first reconsideration motion because it was untimely and because the disputes related to the Divorce Settlement. Arguably, it was a timely FRCP 60(b) motion, having been filed within one year of entry of the order. But any error in this conclusion was harmless, as the motion and evidence did not demonstrate grounds under FRCP 60(b), which provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . .; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Victoria's affidavit filed in the bankruptcy court references matters that occurred prior to settlement of the adversary proceeding: primarily, Charles' failure to pay his obligations under the Divorce Settlement, and the attorney misconduct which prevented her review of the agreement.
Not in the excerpts of record; again we take judicial notice from the bankruptcy court's docket.
On appeal, Victoria argues that she was misled into agreeing to the Settlement Order, but she submitted no evidence to support her assertions that assets were erroneously valued. She cites Charles' deposition and his § 341 meeting testimony, both in 2002, well before the adversary was settled. She stated no reason why this information was unavailable when she agreed to the Settlement Order.
Motions for reconsideration that merely revisit the same issues already ruled upon by the bankruptcy court, or advance supporting facts that were otherwise available when the issues were originally briefed, will generally not be granted. In re Branam, 226 B.R. 45, 54 (9th Cir. BAP 1998), aff'd, 205 F.3d 1350 (9th Cir. 1999) (table).
The bankruptcy court did not abuse its discretion in denying the motion; there was simply no competent evidence to support reconsideration or relief under FRCP 60(b).
C. 04-1577 - Second motion for reconsideration
It appears Victoria may have misinterpreted our orders regarding finality as providing her another opportunity to litigate the issues: she argues that the Settlement Agreement was not a final order, and that the adversary proceeding should have been reopened to adjudicate claims 1, 2, 3, and 7. Additionally, she argues that the amounts designated for support are inadequate, that she was entitled to an award of attorney's fees, and that Charles breached the Adversary Settlement because he never executed a confession of judgment.
The arguments differ only slightly from her first motion, and the evidence submitted was virtually identical. Again, Victoria gives no reason why this information was previously unavailable. Denial of the second motion was, for the same reasons, not an abuse of discretion.
VI. CONCLUSION
We will strike Victoria's supplemental brief and supplemental excerpts by separate order.
Victoria has not shown that the bankruptcy court abused its discretion in denying her motions for reconsideration or vacation. We AFFIRM both orders.
Alert