Opinion
Case No. 02-10582, Adversary Proceeding No. 03-1058.
August 22, 2005
Jan M. Sensenich, Esq., Chapter 13 Trustee, White River Junction, VT, for the Plaintiffs.
Oliver Twombley, Esq., Law Office of Oliver Twombley, P.C. Barre, VT, for the Defendant.
ORDER DENYING DEFENDANT'S RULE 8002(b)(2) MOTIONS
On August 2, 2005 the Court entered a Memorandum of Decision Determining that There Was Not Reasonably Equivalent Value for the Strict Foreclosure Transfer (doc. # 56, hereafter "the Decision"). On August 10, 2005, the Plaintiffs filed a proposed judgment order which the Court signed and entered on August 15, 2005 (doc # 65). In the interim, on August 11th, the Defendant filed the instant Rule 8002(b)(2) Motion (doc. # 61, "the Motion"). The Motion asserts two grounds for relief: (1) the Plaintiffs and Defendant were in the process of negotiating the amount of credit to which the Defendant is entitled, and (2) the Court should reconsider the Decision based upon principles of res judicata. On August 19th, the Defendant filed a second motion for reconsideration urging the Court to reconsider the calculation of the debt (doc. # 64) (the "Second Motion").
The Court finds that the Plaintiff and Defendants' ability to negotiate the credit is not impeded by entry of the Decision and that any determination on the amount of the judgment would be subject to its own appeal period. Therefore, this is not a sufficient basis for granting relief under Rule 8002(b).
The Court further finds that the Defendant's arguments based upon res judicata are not probative of the question as the Defendant failed to raise this argument heretofore. The Court further finds the Defendant's arguments in the Second Motion unpersuasive. The Parties previously stipulated to the amount of the debt.
Therefore, it is hereby ordered that the Defendant's Rule 8002(b) Motion and the Second Motion are DENIED.