1 The Honorable Dennis D. O’Brien, United Stat es Bankruptcy Judge for the

District of Minnesota.



## United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

01-6025MN

In re: Larry Kenneth Alexander *

*

Debtor *

*

Larry Kenneth Alexander *

* Appeal from the United States

Debtor - Appellant * Bankruptcy Court for the

* District of Minnesota

v. *

*

Mary Jo A. Jensen-Carter *

*

Trustee - Appellee *

Submitted: October 2, 2001

Filed: November 15, 2001

Before KOGER, Chief Judge, WILLIAM A. HILL and SCHERMER, Bankruptcy

Judges

KOGER, Chief Judge

Debtor Larry Kenneth Alexander appeals from an Order of the Bankruptcy

Court 1 denying his request for relief under Fed. R. Civ. P. 60(b) and 11 U.S.C. § 105.

For the reasons that follow, we affirm.2 FACTUAL BACKGROUND

T hree days prior to filing his pro se Chapter 13 bankruptcy petition on June 18,

1998, Alexander move d out of his marital home at 875 Laurel Avenue, St. Paul,

Minnesota. Because he was not physically residing at the 875 Laurel address at the

time he filed his Chapter 13 petition, Alexander listed his address on his bankruptcy

petition as 175 North Lexington Parkway, St. Paul, Minnesota, which was the address

of the property where he was living while he and his wife were separated and when

he filed his bankruptcy petition. Although he listed the 175 North Lexington property

as his address, Alexander nevertheless claimed a homestead exemption for the 875

Laurel residence on his bankruptcy schedules.

After the Chapter 13 Trustee objected to the homestead exemption because

Alexander had referred to the wrong statute, Alex ander amended his schedules,

claiming the 875 Laurel Avenue residence e xempt under Minnesota’s correct

homestead statute. The Chapter 13 Trustee again objected, this time on the ground that

Alexander was not physically residing at that property when he filed his petition and,

therefore, it did not qualify as his homestead.

The Bankruptcy Court conducted an evidentiary hearing and entered an Order

dated December 3, 1998, granting the Trustee’s objection and ruling that 875 Laurel

was not exempt in Alexander’s case because he was not physically living in the

residence on the day he filed his bankruptcy petition. At the same time, the

Bankruptcy Court also converted Alexander’s Chapter 13 case to Chapter 7.

Alexander timely ap pealed the Order granting the Trustee’s objection to the

homestead exemption. On August 4, 1999, the District Court for the District of

Minnesota affirmed the Bankruptcy Court’s dec ision and Alexander appealed that

decision to the Eighth Circuit Court of Appeals. While the appeal was pending in the

Eighth Circuit, the District Court stayed its Order on the condition that Alexander post

a bond, which he failed to do. As a result, following a motion by one of the creditors3

involved in that litigat

ion, the Eighth Circuit dismissed Alexander’s appeal on

November 17, 2000, suggesting in its opinion that the appeal itself had no merit.

Meanwhile, while the appeal was pending in the Eighth Circuit, Ale xander’s

converted Chapt

er 7 case progressed in the Bankruptcy Court. Alexander again

attempted to claim a homestead exemption for the 875 Laurel Avenue residence in his

Chapter 7 case, arguing that he had moved back into that residence p rior to the

conversion and that, under the Eighth Circuit’s decision in Armstrong v. Lindberg (In

re Lindberg) , 735 F.2d 1087 (8th Cir. 1984), the date of conversion controlled which

property he could claim exempt as his homestead. The Chapter 7 Trustee objected on

the grounds th at Lindberg had been overruled by the enactment of the 1994

Bankruptcy Code, that the date of the original petition controlled which property

Alexander could claim as his homestead, and, again, that Alexander was not residing

at the 875 Laurel address when he filed his original petition.

On June 30, 1999, the Bankruptcy Court granted the Chapter 7 Trustee’s

objection to the homestead exemption, see In re Alexander , 236 B.R. 679 (Bankr. D.

Minn. 1999), and Alexander appealed to the Bankruptcy Appellate Panel. On October

21, 1999, the BAP affirmed, ruling that Lindberg had been overruled by the enactment

of the 1994 Code. S ee In re Alexander

, 239 B.R. 911 (B.A.P. 8 th Cir. 1999). Alexander

took the case up again to the Eighth Circuit and, on January 8, 2001, the Eighth Circuit

affirmed the Bankruptcy Court’s decision, declaring Lindberg to be overruled by the

new Code and, therefore, the date of the original petition controlled which property

Alexander could claim as his homestead. See In re Alexander , 236 F.3d 431 (8 th Cir.

2001). On February 13, 2001, the Eighth Circuit denied Alexander’s motion to rehear

the case en banc

.

Meanwhile, while all this was going on in Alexander’s case, Alexander’s wife,

Georgina Stephens, filed a separate Chapter 7 case on August 17, 1998, about a month

after Alexander had filed his original petition. At that time, she was living at 8754

Laurel Avenue with their mi nor son and Alexander was residing at the 175 North

Lexington address. Ms. Stephens listed the 875 Laurel address as her address on her

bankruptcy petition but she did not claim any ownership interest in the property nor

did she claim any homestead exemption in her b ankruptcy schedules. Rather, she

listed a rent payment in the amount of $1,175 per month which she said was the result

of an agreement between Alexander and h erthat she pay him rent while they were

separated. She did not list an ownership interest in the residence because, although she

and Alexander had lived there together for many years before the separation, he was

the only one listed on the deed. Consequently, Ms. Stephens, who was represented by

an attorney in her bankruptcy proceedings, did not believe she had any interest in the

property.

However, apparently due to the difficulty he was having claiming a homestead

exemption in the 875 Laurel property in his own bankruptcy proceedings, Alexander,

pro se , filed an “Amended Schedule A & C to Correct Description of Realty Claimed

Exempt” in his wife’s case, crudely attempting to exempt the property on his own

behalf as a “dependant” of Ms. Stephens. His is the only signature that appears on this

document; Ms. Stephens did not sign the document purporting to amend her schedules,

nor did her attorney. In addition, no one notified any of the creditors in Ms. Stephens’

case of the “Amended Schedules” filed by Alexander in her case and so there were no

objections made to Alexander’s attempt to claim the homestead exemption in Ms.

Stephens’ case. Ms. Stephens received a discharge in her Chapter 7 case on November

18, 1998.

A few months thereafter, on June 7 , 1999, Ms. Stephens filed a second

bankruptcy petition, this time under Chapter 13. As she had done in her first case, Ms.

Stephens, who was again represented by counsel, listed her address as 875 Laurel, but

she again did not list any interest in the property, nor did she claim an exemption for

it in her schedules. She again stated she was paying her husband rent in the amount5

of $1,175 per month and confirmed the rental arrangement in an e-mail to the Trustee

herein dated August 9, 1999.

As he had attempted to do in Ms. Stephens’ first case, on October 4, 1999,

Alexander, pro se

, filed another “Amended Schedule A & C to Correct Description of

Realty Claimed Exempt” in Ms. Stephens’ Chapter 13 case, again attempting to exempt

the property on his own behalf as a “dependant” of his wife in her case. And again,

no one notified the Chapter 13 Trustee or the creditors and, as a result, there were no

objections to Alexander’s attempt to claim the homestead exemption in his wife’s case.

The Chapter 13 Trustee in Ms. Stephens’ case subsequently abandoned all property in

her case, apparently unaware that Alexander was claiming an interest and exemption

in the house on his wife’s behalf in her ca se. Ultimately, Ms. Stephens voluntarily

dismissed her Chapter 13 case in December 1999.

Subsequently, in February 2001, after the appeals were exhausted in Alexander’s

case and it had been finally determined that Alexander could not exempt the 875 Laurel

property in his own bankruptcy case, the Trustee offered Alexander the opportunity

to buy the property for the fair market value, advising Alexander and Stephens that if

they did not purchase the property from the estate, they would need to vacate the

premises so it could be sold for the benefit of the estate. Unable or unwilling to

purchase the property from the Trustee and facing eviction, Alexander filed a pro se

motion i n the Bankruptcy Court seeking relief under Fed. R. Civ. P. 60(b) and 11

U.S.C. § 105. Among other things, Alexander asked the Bankruptcy Court to find that

Ms. Stephens was entitled to claim an exemption in the 875 Laure l property as her

homestead. The Bankruptcy Court denied the motion by Order dated April 17, 2001.

This is the Order being appealed herein.

Meanwhile, shortly after the Bankruptcy Court denied the Rule 60(b) Motion,

on April 30, 2001, Ms. Stephens, represented by counsel, commenced an action in the

United States District Court for the District of Minnesota on her own behalf and the6

behalf of her minor son against the Trustee herein, claiming that she had exempted the

875 Laurel property as her homestead in her bankruptcy cases and that the Trustee’s

attempt to take

possession of the property and liquidate it for the benefit of

Alexander’s bankruptcy estate violated the discharge injunction and automatic stay in

her case, as well as her constitutional rights to her homestead under Minnesota law.

In conjunction with this action in the District Court, Ms. Stephens filed a motion for

temporary injunction seeking to enjoin the Trustee from evicting her and her son from

the residence. That motion was heard by a magistrate judge on June 1, 2001, at which

time the magistrate judge refused to grant the injunctive relief, indicating on the record

that Ms. Stephens had not properly claimed the residence as her homestead in her

bankruptcy cases and stating that the Court believed that Ms. Stephens’ motion may

have violated Rule 11. The magistrate judge entered a written Order dated June 5,

2001, requiring Ms. Stephens and her attorney to show cause why they should not be

sanctioned under Rule 11 for filing the motion for preliminary inju nction. Ms.

Stephens has appealed the magistrate judge’s Order and the Trustee has filed a motion

to dismiss Ms. Stephens’ complaint in the District Court. Those items are still pending.

Now before us is Alexander’s appeal of the Bankruptcy Court’s denial of his

Rule 60(b) and 11 U.S.C. § 105 motion.

STANDARD OF REVIEW

The standard of rev iew for a denial of a Rule 60(b) motion is whether the

Bankruptcy Court a

bused its discretion; this review does not include review of the

underlying decision which was not appealed. P rinted Media Servs., Inc. v. Solna Web,

Inc.

, 11 F.3d 838, 842 (8 th Cir. 1993); In re Yukon Energy Corp.

, 227 B.R. 150, 151-52

(B.A.P. 8 th Cir. 1998). The denial of a request pursuant to 11 U.S.C. § 105 is also

reviewed und er an abuse of discretion standard. S ee McGowan v. Ries (In re

McGowan) , 226 B.R. 13, 16 (B.A.P. 8 th Cir. 1998).7 DISCUSSION

Al exander bases his appeal on two primary points: (1) that the Bankruptcy

Court, throughout the various proceedings in his case, erred in concluding that he

could not claim the 875 Laurel property exempt as his own homestead; and (2) that the

proceedings by the Trustee and the Bankruptcy Court in attempting to recover the 875

Laurel property in his case are void ab initio because they violated the automatic stay

and discharge injunction in his wife’s bankruptcy cases. Alexander cannot prevail here

under either theory, primarily because he is either re-hashing arguments which have

already been decided and affirmed by other courts or which should have been raised

in the earlier proceedings.

As to the first point, Alexander correctly asserts that, as a general proposition,

claimed exemptions are presumed t o be valid and the Trustee bears the burden of

proving that an exemption is invalid. Alexander incorrectly claims, however, that the

Trustee failed to meet her burden in his case and that the Bankruptcy Court improperly

shifted the burden to Alexander to prove that the 875 Laurel res idence was his

homestead. Rather, as the Bankruptcy Court found in its first decision on the

homestead exemption, the presumption of the validity of Alexander’s original claimed

homestead exemption was rebutted by the fact that he declared, under penalty of

perjury, that he was residing a the 175 North Lexington Parkway address at the time

he filed his original bankruptcy petition. By objecting to the claimed exemption and

pointing this fact out, as well a s showing that Alexander was, in fact, living at 175

North Lexington at that time, the Trustee met her burden. The Bankruptcy Court so

found and, in its opinion dismissing the appeal, the Eighth Circuit declared the appeal

itself as having “complete lack of merit.” Consequently, the issue of whether

Alexander could have claimed the 875 Laurel address as his homestead in his original

petition has already been decided by the Bankruptcy Court and affirmed by the Eighth

Circuit and could not be relitigated in the subsequent Rule 60(b) motion.8

With the issue as to whether Alexander could claim the 875 Laurel property as

his homestead in his original petition having been decided against him, Alexander next

attempted to claim an exemption in the 875 Laurel residence as his homestead on the

ground that he did live there on the date his case was converted to Chapter 7. At the

time he made that ar g ument to the Bankruptcy Court, In re Lindberg arguably

permitted that. However, as discussed above, the Bankruptcy Court, the BAP, and the

Eighth Circuit Court of Appeals determined that In re Lindberg had been overruled by

the new Bankruptcy Code and that the date of Alexander’s original petition controlled

which property he could claim as his homestead.

In addition, contrary to Anderson’s assertion that t his second decision (as to

whether he could claim the exemption in his con verted Chapter 7 case) was

interlocutory or that the Bankruptcy Court merely “certified” the question of

Lindberg ’s viability, the Eighth Circuit also plainly affirmed the Bankruptcy Court’s

ruling that Alexander could not claim the 875 Laurel address as his homestead in the

converted case, either. Specifically, the Eighth Circuit expressly said, after declaring

Lindberg to be overr uled by the new Code, “We further hold that the Bankruptcy

Court correctly sustained the Chapter 7 Trustee’s objection to Alexander’s homestead

exemption. See In re Smoinikar

, 200 B.R. 640, 644 (Bankr. D. Minn. 1996) (Minnesota

homestead exemption law requires that debtor ‘actually occupy’ residence).” I n r e

Alexander , 236 F.3d at 433.

Thus, at this point, the Ei ghth Circuit has affirmed the Bankruptcy Court’s

determinations that Alexander could not claim the 875 Laurel homestead exemption in

the original Chapter 13 case because Alexander did not live there when he filed that

petition and that he cou ld not claim it in his converted Chapter 7 case because the

original filing date controlled and, as it had already fou nd in its first decision,

Alexander did not live there when he filed the original petition.9

As a result, following the second decision by the Eighth Circuit in Alexander’s

case, the Bankruptcy Court had nothing more to consider a s to whether Alexander

could claim the homestead exemption in the 875 Laurel property in his own

bankruptcy case. Nevertheless, Alexander still asserted in his Rule 60(b) motion, and

he asserts here, that the Bankruptcy Court should have considered factors including,

among other things, that he was only temporarily out of the family home when he filed

his original petition, that his family remained there throughou t, and that under

Minnesota law, h e was entitled to claim the homestead under those circumstances.

These are all items which were or should have been raised when the Bankruptcy Court

first considered whether Alexander could claim the exemption in his original petition.

“A Rule 60 motion is not the vehicle for restating old complaints and rearguing

old evidence dealt with earlier in the proceedings.” Kieffer v. Riske(In re KiefferMickes, Inc.) 226 B.R. 204, 210 (8 th Cir. 1 998). Moreover, “[t]he law of the case

doctrine prevents relitigation of a settled issue in a case and requires that courts follow

decisions made in earlier proceedings to insure uniformity of decisions, protect the

expectations of the parties, and promote judicial economy.” In re Usery

, 242 B.R. 450,

457 (B.A.P. 8 th Cir. 1999); see also Klien v. Arkoma Prod. Co. 73 F.3d 779, 784 (8 th

Cir. 1996). When a case has been decided by the Eighth Circuit on appeal and

remanded, every question which was decided by the Eighth Circuit, whether expressly

or by necessary implication, is finally settled and determined, thus creating a mandate

for the lower court. See Klien , 73 F.3d at 784.

The [lower court] is bound by the decree and must carry it into execution

according to the mandate. . . . It may not “alter it, examine it except for

purposes of execution, or give any further or other relief or review it for

apparent error with respect to any question decided on appeal.”

Id . (citations omitted)

The Bankruptcy Court was bound by the Eighth Circuit’s previous decisions in

this case and could not conside r Alexander’s arguments in the Rule 60(b) motion,10

either new or re-hashed, as to whether he was entitled to claim the 875 Laurel property

as his homestead. Consequently, we will not address them further here.

That being the case, with the Bankruptcy Court having conclusively determined

that Alexander could not claim the homestead exemption in his own case, Alexander

next asserts that the Bankruptcy Court should have considered Ms. Stephens’ alleged

exemption in the property. Specifically, Alexander asserts that the actions taken by the

Trustee and the Bankruptcy Court in his case regarding the 875 Laurel property are all

void ab initio because they violated the automatic stay and discharge injunction in Ms.

Stephens’ bankruptcy cases.

This argument fails for several reasons. First, Ms. Stephens’ cases were

progressing simultaneously with Mr. Alexander’s cases. If Ms. Stephens had properly

claimed an exemption in this property and if her exemption was rele vant in this

bankruptcy case, this argument should have been raised in the Bankruptcy Court long

ago. As with Alexander’s other arguments in this appeal, this belated Rule 60(b)

motion is not the time to raise the issue of Ms. Step hens’ alleged exemption in the

property.

In addition, Ms. Stephens’ interest in the property is irrelevant in the context of

Mr. Alexander’s bankruptcy case, except perhaps to the extent to which Alexander

asserts that Trustee and Bankruptcy Court in his cases have violated the automatic stay

and discharge injunction in Ms. Stephens’ bankruptcy cases. As a result, and since

there is a separate action pending involving Ms. Stephens’ rights in the property, we

make no determination here as to her rights in the property under Minnesota law.

Rather, we limit our discussion here to the very narrow issue of whether the Trustee’s

actions in this case violated the automatic stay or discharge injunction in Ms. Stephens’

cases.2 In addition, based on the transcript of the proceedings Ms. Stephens instituted

in the District Co urt for the District of Minnesota, which is included in the record

before us, it is clear that the magistrate judge has likewise concluded that Ms. Stephens

did not properly claim an interest or exemption in the property.

11 In order for that to have occurred, Ms. Stephens must have claimed an interest

in and exemption for the 875 Laurel property in her cases. For these purposes, we will

assume that, if Ms. Stephens had properly claimed an exemption in the property as her

homestead in her bankruptcy cases, the Trustee herein may have violated the discharge

injunction in her case and would not be able to evict her and administer the property

in Alexander’s case. Nevertheless, contrary to Alexander’s assertions herein, there is

no evidence in the record before us that Ms. Stephens did properly claim an interest

in or an exemption for the property in either of her bankruptcy cases and, as a result,

neither the Trustee nor the Bankruptcy Court in Alexander’s case vio lated the

automatic stay or discharge injunction in her case.

Particularly, the record before us includes the schedules and purported amended

schedules filed in Ms. Stephens’ bankruptcy cases, as well as certain other documents

from her cases, including an August 9, 1999 e-mail to the Trustee herein in which Ms.

Stephens confirms that she was paying Alexander rent on the property. In neither of

Ms. Stephens’ cases is the 8 75 Laurel property listed on her Schedules A or C. In

addition, even giving Mr. Alexander a very generous interpretation of the “Amended

Schedule A & C to Correct Description of Realty Claimed Exempt” and assuming it

could be construed as amending Ms. Stephens’ Schedule s A & C in the manner

Alexander contends it does (which we seriously question), in neither case were th e

“amended schedules” served on the proper parties. Furthermore, since the Trustees

in her cases were apparently unaware of the claim of homestead exemption due to the

l ack of notice and misleading nature of the document, the Trustees’ purported

abandonment of such property was ineffectual. 23 Rule 60(b) is made applicable to bankruptcy proceedings by Fed. R. Bankr. P.

9024.

12 As a result, the Bankruptcy Court properly rejected the argument that Rule 60(b)

relief should be granted based on Ms. Stephens’ alleged exemption in the property and

the Trustee’s purported violation of the automatic stay and discharge injunction.

We therefore conclude that Alexander’s Rule 60(b) motion was properly denied

on the merits.

Alternatively, even if the arguments ass erted by Alexander in the Rule 60(b)

motion had merit or had not been precluded because the Eighth Circuit has already

deci ded them, the Bankruptcy Court properly denied Alexander’s motion for relief

under Fed. R. Civ. P. 60(b) because th e motion was untimely brought. Rule 60(b)

provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party

or a party's legal represe n tative from a final judgment, order, or

proceeding for the following reasons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly disco v ered 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; (4)

the judgment is void; (5) the judgment has been satisfied, r eleased, or

discharged, or a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that the judgment should

have prospective application; 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.

Fed. R. Civ. P. 60(b). 3

Alexander’s Rule 60(b) motion was filed on February 20, 2001. In effect, he

is seeking relief from orders entered by the Bankruptcy Court on December 3, 1998,13

and June 30, 1999. In order to avoid the one-year limitation, Alexander asserts his

motion was brought under Rule 60(b)(6) which must be made within a “reasonable

time.”

Regardless which subsection of the rule Alexander brings his motion under, in

no event was it brought within a reasonable time. “What constitutes a reasonable time

is dependent on the particular facts of the case in question and is reviewed for abuse

of discretion.” Watkins v. Lundell , 169 F.3d 540, 544 (8 th Cir. 1999). In this case, it

would not have been an abuse of discretion for the Bankruptcy Court to have found

that it was unreasonable to wait over two years after the first order was entered, and

after the Eighth Circuit issued an unfavorable result, to bring this motion.

Finally, Alexander asserts the Bankruptcy Court erred in failing to give his pro

se pleadings libera

l application and that he is therefore entitled to relief under 11

U.S.C. § 105. As the Bankruptcy Court has mentioned, despite the fact that he is not

an attorney, Alexander demonstrates remarkable understanding of complicated legal

arguments and his pleadings and briefs are well done. In any event, while pro se

litigants may be entitled to liberal construction of their pleadings, the record simply

does not support the argument that Alexander did not receive such favorable treatment

or that he is entitled to relief under § 105 or any other theory.

In sum, Alexander is, in effect, asking the Bankruptcy Court to ignore the Eighth

Circuit’s rulings in his case, something the Bankruptcy Court coul d not do and

something which neither Rule 60(b) nor 11 U.S.C. § 105 were ever intended to permit.

CONCLUSION

For the foregoing reasons, we conclude that the Bankruptcy Court did not abuse

its discretion in denying Alexander’s motion under Rule 60(b) and 11 U.S.C. § 105.

The judgment is therefore affirmed.14

A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL,

EIGHTH CIRCUIT