SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

) ) I N RE: STEPHEN THOMAS YELVERTON, ) ) Case No. 1:11-c v-1627 (RL W) Debtor ) Case No. 1:11-c v-1649 (RL W) ) __________________________________________)
MEMORAN DUM OP INION 1 Presently befor e the Court ar e notices of appea l in two cases: 11-c v-1627 and 1; 11-c v1649. In both case s, the debtor se eks re view of the Ba nkruptcy Court’s decision deny

ing a “Joi nt Motion t o Vac ate Disc harg e Or der to Appr ove Rea ffirmation Agr eeme nt.” For the
rea sons set forth below, the Court will affirm the B ankruptc y Court’s decision and dismiss the debtor’s a ppeals. I. F ACTS Although pr ocee ding pro se , debtor Stephen Thoma s Yelver ton is an attorney . On May 14, 2009, Yelver

ton filed a voluntary

Chapter 11 ba

nkruptcy petition in the United States Ba nkruptcy Court for the District of

Columbi a. (Case # 9-bk-414.) On August 10, 2009, Melody H. Fe nnel commenc ed an A dversa ry Procee ding in the B ankruptc y Court seekinga This unpublished memorandum opinion is int ended sole ly to inform the par

ties and any 1 revie wingcourt of the basis for the instant ruling , or alter natively , to assist in any

potential future a naly sis of the res judicata , law of the case , or pre clusive ef fec t of the ruling . The Court has desig nated this opinion as "not intende d for publication," but this Court cannot preve nt or prohibit the publication of this opinion i n the var ious and sundry elec tronic and le g al databa ses (as it is a public docume nt), and this Court cannot pre vent or prohibit the citation of this opinion by counsel. Cf

. Fe d. R. App. P. 32.1. Nonetheless, as state d in the operational handbook adopted by

our Court of Appe als, “c ounsel are reminded that the Court's de cision to issue an unpublished disposit ion means that the Court see s no prec edential va lue in that dispositi on.” D.C. Circuit Handbook of Pra ctice a nd Interna l Procedure s 43 (2011).

1SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS deter mination that a $55,000 persona l loan she made to Yelver ton was non-discha

rg eable . (Case # 09-ap- 10021.) On January 28, 2010, Yelver

ton filed a motion seekingdismiss al of the adver sary proce eding , noting that he had propose d a Plan of Reor g anization and that his debt to Fe nnel “ha [d] been a ffirme d and propose d to be paid in full.” (9- ap-10021, D oc. 18.) The motion was denied a

nd later that summer, on August 18, 2010, he filed anothe r motion to dismiss raisingessentially the same grounds. (9-a

p-10021, Doc . 32.) Two day s later, on August 20, 2010, the Ba nkruptcy Court entere d an orde r involuntarily
conver ting the initial bankr

uptcy proce edingfrom Chapter 11 to Chapter 7 and a

ppointing a trustee. ( 9-bk-414, Doc . 323.) That or der notified Y elver ton that he was r equire d, inter alia , to file any notices of intent to exempt property or re aff irm secur ed consume r debts within thirty day s of the conve rsion date or befor e the f

irst date set for

the meetingof the c reditors, whic hever
came ear lier. (

Id .) On August 22, the Ba nkruptcy Court mailed Yelver

ton a “Notice of Chapter 7 Ba nkruptcy Case, Mee ting of

Creditors, & Dea dlines.” (9- bk-414, Doc . 327.) This notice informed Ye lverton that the c reditor’ s meetingwould be held on Septembe r 23, 2010, and that “[t] he debtor

. . . must be prese nt at the meetingto be questioned unde r oath by the trustee a

nd by cre ditors.” (

Id .) Ye lverton wa s also sent a notice indicatingthat he wa s require d to complete a fina ncial mana g ement cour se “w ithin 45 day s after the first date set for the meetingof cr editors . . . . The orig inal date sc heduled f or the mee ting of

cre ditors in this case is 9/23/10.” (9-bk-414, Doc. 328.) After the conve rsion to Chapter 7, F ennel oppose d Yelver ton’s motion to di smiss beca use the c onversion had mooted the Chapter 11 r epay ment plan that included pr ovisions for repa ying his loan to he r. (9- ap-10021, D oc. 34.) The rec ord establishes that Ye lverton’s
cre ditor’s meetingwas he ld, as planned, on Septe mber 23, 2010. (9- bk-414, 9/23/10 Minute

2SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS Entry .) Consistent with the prior notice re quiring Yelver ton to attend a fina

ncial mana g ement
course within forty -five da y s after the date se t for the c reditor’ s meeting , the B ankruptc y Court
war ned Ye lverton, ar ound November 24, 2010, that he nee ded to document c ompletion of the
course or fa ce dismissal of his bankruptc y case “without the entry

of dischar g e.” ( 9-bk-414, Doc. 380.) Yelver

ton’ filed the r equisite documentation six day s later, on Nove mber 30, 2010 and, on De cembe r 3, 2010, the B ankruptc y Court entere d an orde r of discha rg e. (9- bk-414, Docs. 383, 384.) Approxim ately

three months after the discharg e, on Mar ch 1, 2011, Ye lverton filed a pretria l statement in the adve rsar y proce edingin which he indicated he wa s “agree able to a
rea ffirmation of the [Fennel] debt . . . and [asked] that it be declar ed Non- Dischar g eable under a Reaff irmation Ag ree ment.” (9- ap-10021, D oc. 43.) The following month, on April 5, 2011, a pretria l confe renc e wa s scheduled in the a dversa ry proce eding , but the Ba

nkruptcy Court J udg e’s notes indicate the proce edingwas not held in anticipation of a Motion to Vacate the discha rg e for the pur

pose of r eaf

firmingthe agree ment to pay Fe nnel. (9-a

p-10021, Doc . 45.) Close to six
wee ks later, on Ma

y 26, 2011, the Court enter ed an or der r e-se tting the pr etrial c onfer ence beca use the motion to vaca

te had not bee n filed. (9- ap-10021, D oc. 46.) A lmost a week later, on May 31, 2011, Yelver

ton and Fe nnel filed a

Rule 60(b)(6) motion to vacate the disc harg e and approve a re aff

irmation ag ree ment as mea ns of re solving the a dversa ry proce eding . (9-bk- 414, Doc. 396; 9-a

p-10021, Doc . 48.) On J uly 18, 2011, the B ankruptc y Court denied that motion. (9-bk-414, D oc. 397, 398.) In its decision, the Ba

nkruptcy Court questioned whethe r it had the a uthority to vacate a discharg e orde r for

the purpose of

approving

a re aff irmation ag ree ment: “Courts are split as to whether it is wit hin their authority to vacate a discha

rg e orde r for

approva l of a re aff

irmation

3SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS ag ree ment.” (9- bk-414, Doc . 397.) The c ourt noted that the B ankruptc y Code prec ludes debtors from see king r evocation of the dischar g e and that rea ffirmation ag ree ments are only enfor cea ble if made pr ior to the entry

of a discha

rg e. Eve n assuming ba

nkruptcy courts have such authority , the J udg e denie d the J oint Moti on beca use the pa rties fa iled to establish that they wer e entitled to relief pursuant to Rule 60(b)( 6). ( Id .) First, the B ankruptc y

Court found the par

ties had not shown that disallowingthe
rea ffirmation would seriously prejudice Yelver

ton beca use, eve n in the absenc e of the
rea ffirmation ag ree ment, Yelver ton had var ious options. The Court noted that nothing pre cluded Yelver ton from: makingvoluntary

pay ments to the cre ditor, or from f ulfilling any

of the other terms of the pr oposed re aff irmation ag ree ment such as naming of the cr editor on the debtor’ s life insuranc e policy . [Yelverton] can conse nt to entry of a judg ment in the pendingadver sary

proce eding , takinginto account the c osts and risks of litigation in arr iving at a judg ment amount, and the pa rties ar e fr ee to e nter into an ag ree ment as to how the judg ment will be paid, includingan enf orce able ag ree ment reg arding

namingthe cr editor on the de btor’s life insura nce policy

. (9-bk- 414, Doc. 397 at p. 10.) Second, the B ankruptc y

Court denied the JointMotion because Yelver ton had not shown that his failure to file a

timely rea ffirmation ag ree ment was due to circumstanc es beyond his control; there fore he had not a cted dilig ently . ( See id .)

4SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS Yelver ton appea led the B ankruptc y Court’s decision on August 1, 2011. (9-bk- 414, 2 Doc. 402.) There are curr ently two appar ently

identical ac tions pending in the instant Court related to his proposed re aff irmation agree ment with Fenne l. (1:11-cv- 1627, Doc. 4; 1:11-c v- 3 1649, Doc. 3.)

II. ST ANDAR D OF REVIEW District Courts “may

aff irm, modify , or re verse a bankr uptcy judge ’s judg ment, order , or decr ee or rema nd with instructions for furthe r proc eeding s.” F ed. R. Ba nkr. P. 8013; see28 U.S.C. §158(a). On que stions of fact, the D istrict Court reviews the B ankruptc y Court’s finding s under the clea

rly err oneous standar d. Fe d. R. Bankr . P. 8013. However , questions of law a re revie wed de novo

. In re Chrek y , 450 B.R. 247, 251 (B ankr. D .D.C. 2001) (c itations omi tted).

In the Notice of

Appea l, Yelver

ton claimed to be a

ppealingthe B ankruptc y

Court’s oral ruling 2 denying him the r ight to a jur y trial on claims asser

ted in the adve rsar

y proce eding , in addition to the denial of

the J oint Moti on. Howeve r, in his brief be fore the instant Court, Yelverton only addre sses the denia l of the Joi nt Motion. (9-bk-414.) Yelver ton also filed a Motion for Per mission t o Appea l In For

ma Pauper is in the Bankr uptcy Court. The B ankruptc y

Court has not y et ruled on this motion. (9-bk-413, Doc . 403.) Howe ver, the instant Court will consider the motion filed with the prese nt Court and here by g rants the motion. Yelver ton filed the first Notice of Appe al in this Court on S eptember 9, 2011 (1:11-cv- 1627) 3 and later filed a se cond Notice of Appe al in this Court on S eptember 13, 2011 (1:11-cv- 1649). It is unclear why Yelver ton filed two ac tions because both appea ls appea r to be identica l. Yelver ton also filed the same brief in both ca ses. Although Y elver ton has serve d the nec essar y parties, no r esponse to Ye lverton’s a ppellate br ief wa s filed.

5SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS III. ANALYSIS
A. Rule 60(b) Relief As the B ankruptc y

Court noted, courts ar e split as to whether it is wit hin the authority

of a B ankruptc y

Court to vacate a discha

rg e orde r for

approva l of a re aff

irmation agree ment. (9- bk-414, Doc . 398 at pp. 5-9.) Y elver ton seeks re lief pursua

nt to Fede ral Rule of Civil Procedure 60 which provide s as follows: 4 (b) G rounds for Relief f rom a F inal Ju dgm ent, Order , or P roce eding. On motion and just t erms, the c ourt may relieve a par

ty or its leg al re prese ntative from a f inal judgme nt, order, or

proce edingfor the f

ollowing r easons: (1) mistake, ina dverte nce, sur prise, or e x cusable neg lect; (2) newly discovere d evidenc e that, with rea sonable diligenc e, cou l d not have be en discove red in time to move for a new trial under Rule 59( b); (3) fra ud (whe ther previ ously called intrinsic or extrinsi c), misrepre sentation, or misconduct by an opposingparty ; (4) the judg ment is void; (5) the judgme nt h as been satisfied, rele ased or discharg ed; it is based on an ear lier judgme nt that has been reve rsed or vacat ed ; or applying it prospec tively

is no longe r equitable ; or (6) a ny other re ason that justifies relief

. (c) Timing and E ff

ect of the Motion
. (1) Timing
. A motion under Rule 60(b) must be mad e within a rea sonable time- -and for rea sons (1), (2), and (3) no more than a y ear afte r the entry of the judgmen t or order or the date of the proce eding

. Fe d. R. Civ. P . 60(b)- (c)

.
Pursuant to Fede ral Rule of B ankruptc y Procedur e 9024, F eder al Rule of Civil P roce dure 60 4 applies in Ba

nkruptcy case s. 6SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS Although Rule 60( b) allows for relief from a f inal order , the B ankruptc y Rules appea

r to limit application of Rule 60( b) whe re the debtor see ks to reaf firm a de bt after

his bankruptcy

has been disc harg ed. F irst, the Ba nkruptcy Rules provide that the Court may revoke a discha

rg e upon the re quest of a tr

ustee or c reditor, but the r ule does not provide f

or such a uthority upon the reque st of the debtor. 11 U .S.C. §§ 727(d)-(e ); In re Engle s , 384 B.R. 593, 598 (B ankr. N .D. Okla. 2008). A dditionally , even if a debtor could re voke his own dischar g e, the B ankruptc y Rules present a

nother hurdle . Reaff

irmation ag ree ments “shall be f iled no later tha

n 60 day s afte r the fir st date set for

the meeting

of cr editors.” F ed. R. Ba nkr. P. 4008(a) . Whil e the “ court may , at any

time and in its discretion, enlarg e the time to file a rea ffirmation ag ree ment,” F ed. R. Ba nkr. P. 4008(a) , such agree ments are only valid if they

are “made befor e the grantingof the discharg e” a

nd filed with the cour

t. 11 U.S.C. §§ 524(c)(1) , (c) (3); see e .g., In re Engle s , 384 B.R. at 598. In the event that the parties are unable to file a rea ffirmation agre em en t in a timely fashion, the rul e gra n t s the court broad discretion to permit a late filing.

. .

. [The Rules] acc ommodat e[ ] s uch an extension by providing for a delay in the entry of discharg e during the pendenc y of a motion to extend the ti m e fo r filing a rea ffirmation ag ree ment. Fe d. R. Bankr . P. 4008 advisory committee’s note ( emphasis adde d). In the pre sent ca se, no dela y of this discharg e wa s sought; the r eaf firmation agree ment was made and filed f

ive months after

the dischar g e. (Y elver

ton Br. ¶ 8.). Thus, it appea

rs that the re lief Ye lverton see ks is not available under the B ankruptc y

rules.

B. Even if

Rule 60(b)(6) R elief Were Available, Yelvert on Has Not Establ ished T hat He Is Entitled to Relief

7SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS There are three limit ations to gr antingRule 60(b) re lief. “F irst, Rule 60(b) includes a require ment that the motion ‘be made within a rea sonable time’ a nd the more spe cific 1–year deadline f or asse rting three of the most open-e nded grounds of re lief (e x cusable neg lect, new ly discovere d evidenc e, and f raud) .” Salazar v. District of Columbia , 633 F.3d 1110, 1116 ( D.C. Cir. 2011) (quoting Gonzalez v. Crosby , 545 U.S. 524, 534 (2005); Fe d. R. Civ. P . 60(c) ) (some internal quotation marks omitted). Althoug h our Circuit has not established a standard f

or assessingwhat constitutes a “ rea sonable time,” the re a re se vera l releva

nt fac tors a cour

t may consider, inc luding the r eason f or the de lay

and whe ther the non- movant will be prejudice d by g rantingthe motion. Salazar , 633 F.3d at 1118 & n.5 ( citations omitt ed). Wit h respe ct to the sec ond limit ation, the United States Supreme Court ha s “re quired a movant seekingrelief

under Rule 60( b)(6) to show ‘extraordinar y circ umstances’ justify ing the reope ning of

a fina l judgment.” Id . at 1116 (c itations omi tted). “F inally , Rule 60(b) proc eeding s
are subject to only

limit ed and de fer ential appe llate re view.” Id . at 1116 (c itation and internal quotation marks omitted). Yelver ton arg ues that the B ankruptc y

Court committed severa l error s of law in its application of Rule 60( b)(6) . First, he a rgues that the B ankruptc y Court erre d by

finding that a “lac k of dilige nce” prec ludes a findingof “e x traordina ry circ umstances.” (Ye lverton B r. ¶ 36.) He a sserts “lac k of dilige nce” is measure d in relationship to whether the motion was filed within one y ear afte r the judg ment from which the movant is seekingrelief . Since he f

iled his moti on five months afte r the B ankruptc y Court’s order , he ar g ues that the only other ba sis for finding “lac k of dilige nce” relates to whether there is prejudice to the non- moving pa rty . (Ye lverton B r. ¶¶ 39- 40.)

8SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS Yelver ton’s interpre tation of Rule 60(b)( 6) is not supported by the law. As a

n initial matter, the one y ear

require ment deter

mines whether

motions are timely

when f iled “under clause s (1), (2) , and (3) , cover ing f raud be tween the parties, ne wly discovere d fac ts, and misconduct of a pa

rty .” See G oland v. CIA , 607 F.2d 339, 372 ( D.C. Cir. 1978) (citations omitted). Moreove r, whe ther or not a Rule 60(b) motion is filed within a y ear , the rule pr ovides that “[a] mot ion under Rule 60(b) must be made within a re asonable time.” Fe d. R. Civ. P

. 60(c) (1) ( emphasis adde d). Thus, eve n Yelver ton’s motion (filed five months afte r the discha rg e order) is subject to the re asonable ness re quirement a nd diligenc e is ce rtainly

one of ma

ny fac tors that might dete rmine re asonable ness, along with whether

there was pre

judice to a pa

rty
. See Salazar , 633 F.3d at 1118 & n.5 ( citations omitt ed). A dditionally , our Circuit has explained that “[a] li tiga nt's dilig ence in pursuing r eview of a dec ision, either throug h appea l or throug h Rule 60(b)( 6) re lief, is rele vant in assessingwhether extraordinary

circ umstances a

re pr esent. . . . [I ndeed] ‘lac k of dilige nce’ eff ectively prec ludes a findingof ‘e x traordina ry circ umstance.’ ” Salazar , 633 F.3d. at 1118-19, 1121. (citation omitted). In the pre sent ca se, the Court finds that Ye lverton did not file his motion “within a
rea sonable time.” O n J anuar y 28, 2010, Yelver

ton first informed the B ankruptc y Court that he had pre pare d a re org anization plan that included re pay ing F ennel. ( 9-ap- 10021, Doc. 18.) Whil e he ma de that plan pr ior to conver sion of the B ankruptc y to Chapter 7, nothingpreve nted him from askingthe B ankruptc y Court to reaf

firm the F ennel de bt after the conve rsion. Indeed, as discussed a

bove, re aff

irmation ag ree ments “shall be f iled no later tha

n 60 day s after

the first date se t for the mee ting of cre ditors.” Fe d. R. Bankr . P. 4008. The first date se t for his
cre ditor’s meetingwas Septembe r 23, 2010; thus, he had until November 22, 2010 to seek

9SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS aff irmation of the F ennel de bt that he had f irst proposed to re pay

back in January

of that same y ear . ( See 9-bk-414, Doc . 327.) Rather than se ek a timely aff irmation, he did what wa s nece ssary to effe ctuate the discharg e of a ll debts. For e x ample, he attended the mandatory cre ditor’s meeting . He a lso promptly responde d to the Ba

nkruptcy Court’s notice wa

rninghim that he fac ed dismissal of his bankruptc y

“without entry

of dischar g e” be cause he had f ailed to file his financ ial manag ement verific ation. (9-bk- 414, Docs. 380, 383.) A fter f iled the ver ification, the discha rg e wa s immediately

enter ed in Dec ember

2010 and he w aited five months, unti l May 31, 2011, to file the re aff irmation ag ree ment. Nothing a bout these fa cts indicates that he acte d within a
rea sonable amount of time give n that he had or igina lly proposed r epay

ing the loan in J anuar

y 2010, more than sixteen months prior to filing his motion for rea ffirmation. See Salazar , 633 F.3d at 1118 & n.5 ( noting that the r eason f or the de lay

is a fac tor to consider when whe ther the motion was filed within a “r easona ble time”) ( citations omitt ed). Whil e the r easona

bleness dete rmination can take into acc ount any prejudice to nonmoving pa

rties, the re cord e stablishes that relief from the discha

rg e and e ntry

of the
rea ffirmation ag ree ment is not the only method for a chieving

Yelver ton’s g oal. The B ankruptc y rules spec ifically

provide that a

discharg ed debtor

may voluntarily

repa y his debts. 11 U.S.C. § 524(f) . Indeed, the Ba

nkruptcy Court noted that Yelver

ton can c onsent to entry

of a judg ment in the Fe nnel adve rsar

y proce edingand the pa

rties would be f

ree to neg otiate the ter

ms of the judgme nt, including a

n enfor cea

ble agree ment reg ardingnamingFe nnel on his life insuranc e policy . (9-bk- 414, Doc. 397 a t p. 10.) Yelve rton has not put forth any leg al authority

or fa cts

1 0SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS that might contr adict the B ankruptc y Court’s observation. Thus, there is nothing in the r ecor d that might indicate prejudice to Fenne l nece ssarily flows from lettingthe dischar g e stand. 5 The Court also finds that Ye lverton has not esta blished “extraordinar

y circ umstances” or diligenc e. Althoug h he cla ims to have bee n “surpr ised” by entry of the discha

rg e, the r ecor d ref lects that he ha d sufficie nt notice that the discha rg e wa s immi nent. Any

objections to the discharg e must filed within six ty day s after

the first date is set for the c reditor’ s meeting . Fe d. R. Ba nkr. P. 4004(a) . Whil e that time per iod may be enla rg ed, once the six ty

day s or the enla

rg ed time period expires, the B ankruptc y court “ shall forthwith” e nter discha rg e. F ed. R. Ba

nkr. P. 4004(b)- (c) . Thus, if all nec essar y conditions had bee n met in the instant case, the discharg e could have been e ntere d on or ar ound November 22, 2010. Howeve r, the discha

rg e wa s delayed bec ause Y elver ton had y et to file his verific ation that he had c ompleted his financia l manag ement cour se. ( See9-bk-414, Doc s. 380, 383, 384.) Once he wa s warne d that failingto file the ver ification mig ht result in dismi ssal of his bankruptc y

case “without entry

of dischar g e,” he quickly filed the ve rification form and the discharg e wa s entere d only a fe w day s later. ( 9-bk-414, Doc . 383, 384.) Thus, the re cord c lear ly contra dicts his argument that he wa s “surprise d” by entry of the discha

rg e and that it was entere d “with no prior notice ” to him. (Yelve rton Br . ¶ 50.) Moreove r, to the extent he nee ded additional time to neg otiate the re aff irmation ag ree ment, he could ha

ve filed a motion seeking to delay

entry of the discha

rg e. See Fe d. R. Ba nkr. P. 4004(c) (2). “ [I ]f a Debtor se es dischar g e looming, but ha s not y et consummated a
rea ffirmation ag ree ment, the Debtor may postpone the dischar g e mer ely by reque st.” In re Rigal ,
Although both Ye lverton and F ennel f iled a Joi nt Motion i n the B ankruptc y Court, it is 5 noteworthy

that Fe nnel has not joined Ye lverton in this appeal. 1 1SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS 254 B.R. 145, 148 (B ankr. S.D. Te x . 2000). Ye lverton saw the discharg e “looming ”and he elec ted to fore g o filing the appropr iate motions in a timely fashion. Thus, the re cord doe s not establish that he was dilig ent. Dilige nce is mea sured by a debtor c onsciously

pursuingeff

orts to achieve their desire d intention. In re Edwards , 236 B.R. 124, 127 (B ankr. D .N.H. 1999). Such efforts include filing timely motions to insure that the time period for the deb t o r to enter into a bindi n g re af fi rm ati on ag ree ment
. . . does not expire due to the debtor’s lack of diligenc e. Dischar g e order s should not be vacat ed at the reque st of debtors who have not been conscientious and diligent in perf orming their st ated intentions. Id . Our Circuit has wa

rned tha t the “extraordinar

y circ umstances” deter

mination is subj ect to a 6 “re strictive under standing of Rule 60(b)( 6)” that focuses on whether the movant fa iled to act due to circumstanc es beyond his control or whe ther the mova nt instead made a

voluntary

decision to fore g o a par

ticular c ourse of

action. Salazar , 633 F.3d at 1120. Consequently , “Rule 60(b) (6) should be only

sparing ly used and ma

y not be employ ed simply

to rescue a litiga

nt from strateg ic choice s that later turn out to be improvident.” Salazar , 633 F.3d at 1120 (internal quotation marks omitted). Be cause Yelver

ton did not file his mot ion “within a re asonable time,” he wa s not dili g ent and has not put for

th any evidenc e of “ extraordinary circ umstances,” the Court finds that he is not entitled to relief unde r Rule 60(b)( 6). 7
To the extent Yelverton a rgues that he must establish something less than extraordinar y 6 circ umstances to obtain re lief under subsection (b)( 6) bec ause he filed his motion less than one y ear afte r the B ankruptc y

Court’s order , the Court still finds that he is not entitled to relief. To the extent Yelverton a rgues that the Court should have c onsidered whether he wa s entitled 7 to relief unde r a Rule 60 subsec tion other than (b) (6), (seeYelver ton Br. ¶ ¶ 41-45 ), such an argument fails for thr ee r easons. F irst, this arg ument is inconsistent with hi s relianc e on subjection (b)( 6) in his brief. See G oland v. CIA , 607 F.2d 339, 372- 73 (D.C. Cir. 1978) (citations omitted) (“T here is no tim e limit for motions brought under [subs ection (b) (6)]; howeve r, re lief under

this clause is not available unless the other c lauses, (1) throug h (5), a re 1 2SUMMARY MEMORANDUM OPI NI ON; NOT I NTENDE D FO R PUBL I CATI ON I N THE OF FI CI AL

REPORTERS IV. CONCLUSION For the re asons set for

th above, the Court a ffirms the B ankruptc y Court’s denial of the “Joi nt Motion t o Vac ate Disc harg e Or der to Appr ove Rea ffirmation Agr eeme nt.” B oth actions shall be dismissed, with prejudice.

SO ORDERED. September 28, 2012

ROBERT L . WI L KI NS United States District J udg e

inapplicable.” ). Second, be cause Yelver ton only cited to subsection (b) (6) in his Ba nkruptcy Court brief, to the e x tent there was a ny err or by the B ankruptc y

Court, Yelver

ton cannot now complain bec ause he invited the err or. See W agner v. Taylor, 836 F.2d 596, 599 ( D.C. Cir. 1987) (“ I t has longbeen se ttled that on appea l a litigant c annot ava il hims elf of a n err or that he induced the c ourt under r eview to c ommit.”) Finally , any arguments relate d to other subsec tions are not properly

befor e the instant Court bec ause “ it is a black letter pr inciple of a ppellate r eview that issues and theorie s not asserted in the lowe r cour t are waived a

nd will not be hear d for the first time on appea l.” In re Capitol Hill Grp. , 447 B.R. 387, 401 (D .D.C. 2011) (c itations and internal quotation marks omitted); see 28 U.S.C. § 158(a).
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