Opinion
In Bankruptcy Case No. 01-72424.
October 12, 2001
OPINION
This proceeding is before the Court on Debtor's Emergent (sic) Motion For Reconsideration to Reinstate The Stay.
"Motions for reconsideration" are not formally designated by either the Federal Rules of Bankruptcy Procedure or the Federal Rules of Civil Procedure, except as provided in Bankruptcy Rule 3008, which allows reconsideration of orders allowing or disallowing claims against the estate. Rule 59(e) of the Federal Rules of Civil Procedure, as adopted by Federal Rule of Bankruptcy Procedure 9023, permits a party to move the court to alter or amend a judgment entered by filing a motion to alter or amend, not one styled as a "motion for reconsideration".
The U.S. Court of Appeals for the Seventh Circuit has instructed courts in the circuit to treat all substantive post-judgment motions filed within ten days of judgment under Rule 59. Charles v. Daley, 799 F.2d 343 (7th Cir. 1986). Because the Plaintiff's "Motion for Reconsideration" was filed on October 5, 2001, or eight days after the entry of the Order on September 27, 2001, Fed.R.Civ.P. 59 is applicable to this case. A Rule 59(e) motion is discretionary and need not be granted unless there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. In re Cook, 205 B.R. 617 (Bankr.N.D.Ala. 1996).
The Debtor argues that the Court's Order of September 27, 2001, should be reconsidered because the Bankruptcy Code requires creditors to file a proof of claim in order to have a lawful claim.
No authority is cited in support of this proposition. This is a no-asset Chapter 7 case. Creditors were specifically advised in the Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, Deadlines not to file claims. Moreover, Bank One Ohio is a secured creditor. "Valid, perfected liens survive a discharge regardless of whether a proof of claim is filed." In re Eakin, 153 B.R. 59, 60 (Bankr.D.Idaho 1993).
The Debtor next argues that the Court was without jurisdiction over this matter because of an alleged fraud by Bank One Ohio. The alleged fraud is that the Bank severely underestimated the value of the property. No authority is cited to explain why this alleged fraud would cause the Court to lose jurisdiction. In any event, as Judge Lessen observed in In re Watkins, Case No. 96-70678, slip op. at p. 1. (Bankr.C.D.Ill. April 16, 1999), "value of collateral is a matter of conjecture and opinion." The Chapter 7 Trustee apparently agrees with the Bank's position; she filed a Report of No Distribution on August 15, 2001.
The Debtor himself cannot settle on a value for the property. He valued it at $150,000 in his bankruptcy schedules, but now asserts that the property is worth more than $200,000. He argues that the Bank "is trying with the Bankruptcy Court's (sic) assistance to rob me of approximately $100,000 plus or minus by theft by deception." The Court's Order of September 27, 2001, merely lifted the automatic stay so that the Bank may proceed in state court with its mortgage foreclosure proceeding. The Bank will only realize from the mortgage foreclosure what it is owed on its debt, no more and perhaps less, depending on the results of the foreclosure. The Debtor's rights will be fully protected in the mortgage foreclosure proceeding.
The Debtor's Motion makes one good point: the Order of September 27, 2001, incorrectly states that no interested party filed an answer or otherwise opposed the motion to lift the stay.
Therefore, the Order will be amended to show that it was allowed over the Debtor's objection.
The Debtor next asserts that the address listed on the Bank's Motion is not his address. As the Court explained to the Debtor at the hearing, "If there is a mistake in the legal description, then the Bank's attorney will have to do whatever is necessary to get that corrected."
Finally, the Court notes that the Debtor's discharge hearing is set for October 24, 2001. The automatic stay will automatically terminate when the discharge is issued. 11 U.S.C. § 362(c)(2)(C).
For the foregoing reasons, the Debtor's Motion for Reconsideration is allowed to the extent that the September 27, 2001, Order will be amended to show that the stay was modified over the Debtor's objection. The Motion for Reconsideration is denied as to the remaining points raised by the Debtor.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
See written Order.
ORDER
For the reasons set forth in an Opinion entered this day,
IT IS HEREBY ORDERED that the Court's Order of September 27, 2001, be and is hereby amended to show that Bank One Ohio's Motion to Lift the Automatic Stay was modified over the objection of the Debtor.
IT IS FURTHER ORDERED that the balance of the Debtor's Motion for Reconsideration be and is hereby denied.