1

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

In re: Darlene Denise Davis, Case No. 19-36077-KLP 

 Debtor Chapter 13 

MEMORANDUM ORDER 

Debtor Darlene Davis (the “Debtor”) filed this chapter 13 case on 

November 19, 2019. This case is the Debtor’s fourth bankruptcy case since 

2010. Case No. 10-38727-KLP was filed on December 23, 2010; the Debtor 

received a chapter 13 discharge on September 16, 2016. Case No. 17-35566-

KLP, a chapter 13 case, was filed on November 7, 2017, and was dismissed on 

August 30, 2018, for failure to make plan payments. Case No. 19-30056-KRH 

was filed on January 4, 2019, and was dismissed on March 22, 2019, upon the 

Debtor’s motion to withdraw her case. The Court granted the motion to 

withdraw but imposed a six-month bar on any future bankruptcy filing. 

The Debtor filed a motion to continue the automatic stay of 

§ 362(c)(3)(B) of the Bankruptcy Code, 11 U.S.C. § 362(c)(3)(B) (the “Motion”), 

on November 27, 2019. A hearing on the Motion was scheduled for December 

18, 2019. At the hearing, the Court ruled that the hearing on the Motion 

would be continued to January 15, 2020, to enable the Debtor to give notice to 

all creditors of the hearing on the Motion. 

On January 13, 2020, creditor Fortune Investment Enterprises 

(“Fortune Investment”), through counsel, filed an objection (the “Objection”) 

to the Motion. At the continued hearing on January 15, the Debtor and 

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 1 of 6
2

Fortune Investments presented argument. After considering the argument of 

the parties and the evidence presented, the Court ruled that the Motion 

would be denied. The Debtor thereafter, on the same day, filed a motion to 

reconsider the Court’s oral ruling (the “Motion to Reconsider”), 

notwithstanding that the order documenting the ruling had not yet been 

entered. She also, at the same time, filed a notice of appeal of the as not yet 

entered order. 

Because the Motion to Reconsider was filed prior to the lodging of the 

appeal, this Court retains jurisdiction to rule upon it. The Motion to 

Reconsider was timely filed, pursuant to Rule 9023 of the Federal Rules of 

Bankruptcy Procedure, Fed. R. Bankr. P. 9023. A hearing on the Motion to 

Reconsider was held on February 4, 2020. The Debtor and Fortune 

Investment, through counsel, appeared at the hearing. 

The federal procedures applicable to motions for amendment of court 

orders, often referred to as motions for reconsideration, are found in Federal 

Rule of Bankruptcy Procedure 9023, Fed. R. Bankr. P. 9023, which 

incorporates Federal Rule of Civil Procedure 59, Fed. R. Civ. P. 59. “While 

the Rule itself provides no standard for when a . . . court may grant such a 

motion, courts interpreting Rule 59(e) have recognized three grounds for 

amending an earlier judgment: (1) to accommodate an intervening change in 

controlling law; (2) to account for new evidence not available at trial; or (3) to 

correct a clear error of law or prevent manifest injustice.” Hutchinson v. 

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 2 of 6
3

Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). The District Court for the 

Eastern District of Virginia has also stated that “a Rule 59(e) motion ‘may 

not be used to relitigate old matters or to raise arguments or present 

evidence that could have been raised prior to the entry of judgment.’” Irving 

v. United States, No. 3:04CR804-1-JRS, 2005 WL 8149015, at *3 (E.D. Va. 

June 13, 2005) (quoting Pacific Ins. Co. v. Am. Nat'l. Fire Ins. Co., 148 F.3d 

396, 403 (4th Cir. 1998). In the Eastern District of Virginia, this test has 

recently been interpreted as follows: 

Reconsideration may be appropriate where “the Court has 

patently misunderstood a party, or has made a decision outside 

the adversarial issue presented to the Court by the parties, or 

has made an error not of reasoning but of apprehension.” Above 

the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 

(E.D.Va.1983). This Court has noted that this situation rarely 

arises, therefore the motion “should be equally rare.” Id. 

Finally, a party should not use a 59(e) motion simply “to ask the 

Court to rethink what the Court had already thought through.” 

Id .; see also Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d 

Cir.1964) (“[W]here litigants have once battled for the Court's 

decision, they should neither be required, nor without good 

reason permitted, to battle for it again.”); Cureton v. Cianbro 

Corp., No. JFM–06–2303, 2007 WL 397025, at * 1 (D. Md. Jan 

30, 2007) (finding that reconsideration is not permitted when 

parties are attempting to “raise arguments which could have 

been raised prior to the issuance of judgment,” nor to “enable a 

party to complete presenting his case after the court has ruled 

against him.” (quoting In re Reese, 91 F.3d 37, 39 (7th 

Cir.1996)). 

Puller v. Unisource Worldwide, Inc., No. 3:08-CV-813, 2009 WL 903303 (E.D. 

Va. Mar. 31, 2009). 

In this case, there has been no change in either the law or the facts 

that were before the Court at the time the Motion to extend the stay was 

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 3 of 6
4

denied. When questioned at the hearing, the Debtor could not offer any facts 

that had been unavailable to her at the time of the January 15, 2020, 

hearing, and the Court has been presented with no change in the law. 

The only remaining ground upon which the Debtor could base her 

motion to vacate dismissal is “to prevent manifest injustice.” The Eastern 

District of Virginia has found that “[r]econsideration is . . . appropriate when 

‘the prior decision was clearly erroneous and would work manifest injustice.’” 

Hogge v. Stephens, Civil Action No. 3:09CV582, 2011 WL 4352268, at *3 (E.D. 

Va. Sept. 16, 2011). However, the Court finds no clear prior error. The 

Debtor stated that it would be a manifest injustice if she were to be forced out 

of her home. However, in this case, the home has already been foreclosed 

upon, and any remedy that might be available to the Debtor lies in the state 

courts. 

The Court notes that the Debtor also argued that she had not been 

given ample time to prepare to address the Objection of Fortune Investment. 

However, the Court’s ruling was not dependent upon the Objection. The 

Court found that the Debtor had not carried her burden of proving that she 

was entitled to an extension of the automatic stay. As explained by Judge 

Huennekens of this Court: 

 § 362(c)(3) effectively provides that where a debtor has 

been a debtor in a previous bankruptcy case that was dismissed 

within one year of the filing of the new case, the automatic stay 

of § 362(a) terminates as to the Debtor on the 30th day following 

the new filing unless within that 30 days the debtor seeks an 

extension of the stay and the court grants the extension within 

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 4 of 6
5

the 30–day period. In order to obtain an extension of the stay, 

the debtor must prove that the filing of the new case was in good 

faith as to the creditors that would be affected by the stay. 11 

U.S.C. § 362(c)(3)(B). 

The statute further provides a presumption that a case is 

not filed in good faith if any of several circumstances 

occurred . . . As the Debtor's Immediately Prior Case was 

pending within the year preceding the Petition Date . . 

. § 362(c)(3)(C) of the Bankruptcy Code raises a presumption 

that his new case was filed not in good faith. The presumption 

may be rebutted by clear and convincing evidence. 11 U.S.C. 

§ 362(c)(3)(C). 

In re Chaney, 362 B.R. 690, 693 (Bankr. E.D.Va. 2007). Thus, the Debtor’s 

argument is unavailing, as she has failed to rebut the presumption that her 

case was not filed in good faith. 

Therefore, for the reasons set forth herein and for the reasons 

announced in open court,1 

IT IS ORDERED that the Motion to Reconsider is DENIED. 

Signed: February 5, 2020 

 /s/ Keith L. Phillips 

 UNITED STATES BANKRUPTCY JUDGE 

Copies: 

Darlene Denise Davis 

5910 Chadwick Court 

Fredericksburg, VA 22407 

Suzanne E. Wade 

7202 Glen Forest Drive, Ste. 202 

Richmond, VA 23226 

Khalid Mahmood 

1 For the same reasons, the Court also finds that to the extent the provisions of Bankruptcy Rule

9024, Fed. R. Bankr. P. 9024, may be applicable, the Motion to Reconsider will not be granted thereupon.

ENTERED OND DOCKET: February 5 2020

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 5 of 6
6

Law Office of Khalid Mahmood PC 

14631 Lee Highway 

Suite 112 

Centreville, VA 20121 

Case 19-36077-KLP Doc 113 Filed 02/05/20 Entered 02/05/20 17:30:38 Desc Main

Document Page 6 of 6