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1 This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8013-1.

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1143-DHPa

) 

GRACE M. CENICEROS, ) Bk. No. 10-16363-TA

)

Debtor. )

______________________________)

)

GRACE M. CENICEROS, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

SUZY YAQUB; JESSICA WALTER, )

)

Appellees. )

______________________________)

Argued and Submitted on May 17, 2012

at Pasadena, California

Filed - June 5, 2012

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding 

Appearances: David Brian Lally, Esq. argued for Appellant Grace

M. Ceniceros; Appellees Suzy Yaqub and Jessica

Walter did not appear at argument. 

Before: DUNN, HOLLOWELL and PAPPAS, Bankruptcy Judges.

FILED

JUN 05 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 

The Federal Rules of Civil Procedure are referred to as “Civil

Rules.” The Rules of the United States Bankruptcy Appellate

Panel of the Ninth Circuit are referred to as “BAP Rules.”

3 The appellees claimed that the debtor and CRI violated

California labor laws by failing to pay them minimum wage and

overtime. The appellees included copies of pleadings from the

lawsuit in a relief from stay motion filed in CRI’s chapter 7

bankruptcy case (main case docket no. 13). Neither the appellees

nor the debtor provided these documents in the record on appeal. 

We obtained a copy of the relief from stay motion and its

attachments from the bankruptcy court’s electronic docket. See

O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d

955, 957-58 (9th Cir. 1988); Atwood v. Chase Manhattan Mortg. Co.

(In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

4 Although it granted the motion to dismiss at the hearing,

the bankruptcy court did not enter an order dismissing the

debtor’s chapter 7 bankruptcy case. On November 21, 2011, we

issued an order requiring the debtor to provide a copy of the

dismissal order.

(continued...)

2

The appellees, Suzy Yaqub and Jessica Walter (collectively,

“appellees”), are former employees of the debtor, Grace M.

Ceniceros.2 Prepetition, the appellees initiated a lawsuit

against the debtor and her corporation, Ceniceros Residential,

Inc. (“CRI”), asserting various employee rights claims.3 Before

the appellees could proceed further in their lawsuit, the debtor

filed her individual chapter 7 bankruptcy petition on May 12,

2010.

The appellees moved to dismiss the debtor’s chapter 7 case

under § 707(b)(1)(“motion to dismiss”), which the debtor opposed. 

The bankruptcy court granted the motion to dismiss at the

hearing.4
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(...continued)

The debtor filed a response to our order, contending that

the bankruptcy court’s order denying the reconsideration motion

(“reconsideration order”) should be construed as an order

dismissing her chapter 7 case. We informed the debtor that

neither the title nor the text of the reconsideration order

contained language dismissing her chapter 7 case. We then issued

an order of limited remand (“remand order”) to the bankruptcy

court to allow it to enter an order specifically dismissing the

debtor’s chapter 7 bankruptcy case. The bankruptcy court entered

an order dismissing the debtor’s chapter 7 case on February 10,

2012 (“dismissal order”).

5

 CRI filed its own chapter 7 petition on June 7, 2010

(10-17718). CRI’s chapter 7 case was dismissed and closed on

October 25, 2010, one week after its chapter 7 trustee filed a no

asset report.

3

Before the bankruptcy court entered an order dismissing her

chapter 7 case, the debtor filed a motion for reconsideration

(“reconsideration motion”). The bankruptcy court denied the

reconsideration motion. The debtor appeals both decisions. We

AFFIRM.

FACTS

To point out that the schedules filed by the debtor in her

personal chapter 7 bankruptcy case are somewhat confusing is an

understatement. Among the assets scheduled by the debtor in her

chapter 7 case, she included four parcels of real property, all

located in Westminster, California (“Westminster properties”). 

She also scheduled a 100% interest in CRI, a California

corporation that operated health care facilities for disabled

adults.5 The debtor was the president and sole shareholder of

CRI. CRI leased from the debtor the Westminster properties from
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4

which it operated its health care business. In her statement of

intention, the debtor proposed to retain and make payments on all

of the Westminster properties.

The debtor reported in her original Schedule F that she had

a total of $636,830 in unsecured nonpriority debt. She later

stated in her amended Schedule F that she had a total of $661,674

in unsecured nonpriority debt. The debtor initially reported the

value of her interest in CRI (“CRI interest”) at $16,000 in her

original Schedule B, but changed it to $0 in her amended

Schedule B. She indicated that the $0 value of the CRI interest

was a “postpetition valuation.” The debtor explained that the

change in the CRI interest’s value “result[ed] from [the]

termination of CRI’s health care operating license, [her]

termination of business operations, and the transfer of patients

to [] Unique Care, a different licensee [and another health care

facility operator].”

The debtor stated in her original Schedule I that she was

self-employed, naming CRI as her place of business. She later

reported in her amended Schedule I that she was unemployed as of

June 9, 2010. The debtor explained that she had terminated CRI’s

operations at the Westminster properties when the Department of

Social Services (“DSS”) revoked CRI’s operating license. CRI’s

patients were transferred to Unique Care, which apparently was a

new entity run by her son-in-law, Joseph Nassif.

The debtor explained that she was temporarily leasing the

Westminster properties to Unique Care on a month-to-month basis

(“leasing arrangement”). She made the leasing arrangement with

Unique Care to “enable uninterrupted continuation of [the
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6 The debtor reported making auto payments, but it was

unclear whether she and/or CRI owned the 2008 Lincoln Navigator,

the only vehicle they each listed in their respective bankruptcy

documents. The debtor listed the 2008 Lincoln Navigator in her

Schedule D and original and amended Schedule B. She also listed

it under Subpart C: Deductions for Debt Payment, line 42(f) of

her amended B22A form; she reported a $798.93 monthly payment to

Ford Motor Credit Corporation for the vehicle.

CRI listed in its amended Schedule B the 2008 Lincoln

Navigator (presumably the same as the one listed by the debtor). 

CRI listed monthly payments of $2,817 for “auto installment

loans” in its business income and expenses statement.

7

 The debtor calculated the mortgage payments for the

Westminster properties at $10,883, and auto lease payments at

$2,817.

8 The debtor provided this explanation in a declaration

(continued...)

5

Westminster properties] mortgage payments and auto payments6

until such time as [Unique Care] could obtain legal ownership of

the [health care] facilities.”

The debtor reported in her original and amended Schedule I a

total monthly income of $15,578. Her total monthly income

consisted of $2,722 net monthly take home pay, $66 monthly

pension/retirement income and $12,790 monthly regular income from

the operation of CRI. She reported $0 in estimated net monthly

income in her amended business income and expenses statement

(“amended business statement”), based on $13,700 in estimated

future gross monthly income and $13,700 in rent for estimated

future monthly expenses.7 The debtor explained that she would

have no income from the leases with Unique Care as they were “at

cost,” and Unique Care would directly pay the auto lease and the

mortgages on the Westminster properties.8 According to the
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8

(...continued)

attached to her amended business statement. She attached several

documents to the amended business statement, including the

declaration. The debtor did not provide a complete copy of the

amended business statement in the record on appeal. We obtained

a complete copy of the amended business statement from the

bankruptcy court’s electronic docket. See Atwood, 293 B.R. at

233 n.9.

9 The chapter 7 trustee held the initial § 341(a) meeting on

June 23, 2010, but continued it to July 12, 2010. He concluded

the § 341(a) meeting on August 10, 2010.

6

debtor, the rental income she received would be “offset” by the

auto lease payments and the mortgage payments on the Westminster

properties.

In her original B22A form, the debtor reported $16,939 in

current monthly income, which included $4,083 in gross wages and

$12,790 in business income. In her amended B22A form, she

reported $15,930 in current monthly income; she reduced her

monthly gross wages to $2,333 and increased her monthly business

income to $13,531. She reported in both the original and amended

B22A forms current monthly expenses of $17,853.73.

Before the § 341(a) meeting was concluded, the appellees

filed the motion to dismiss.9

 They contended that the debtor’s

chapter 7 case was presumptively abusive under § 707(b)(2)(A)(I)

because she had sufficient income from renting the Westminster

properties to pay her debts in full. The debtor failed to

include rental income in her B22A form. Had she done so, the

appellees argued, the debtor would have between $23,183 and

$28,939 monthly income. Taking $17,853.73 in monthly expenses

into account, the debtor would have between $5,329.27 and
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$11,085.27 in monthly disposable income.

The appellees also argued that the debtor filed her

chapter 7 petition in bad faith under § 707(b)(3)(A) because:

(1) she failed to disclose the rental income from the Westminster

properties in her B22A form; (2) she failed to disclose the fact

that CRI operated health care facilities as required under

Rule 2007.2; and (3) she made false and/or misleading statements

regarding the termination of the operations of the health care

business and the alleged sale of the health care facilities.

With respect to the third contention in particular, the

appellees claimed that the debtor had not terminated operations

at the health care facilities but continued to operate them and

that she still was licensed to do so. They attached as an

exhibit a copy of a printout of the health care facility vendor

list provided by the Regional Center of Orange County (“RCOC”);

the vendor list included CRI’s health care facilities.

With respect to the sale of the health care facilities, the

appellees argued that, contrary to her claim that she intended to

liquidate the health care facilities by selling them to Nassif,

the debtor intended to continue to operate the health care

facilities.

The appellees alternatively contended that the totality of

the circumstances under § 707(b)(3)(B), as demonstrated by the

debtor’s omissions and false and/or misleading statements,

warranted dismissal of her chapter 7 case.

The debtor opposed the motion to dismiss. She claimed that

the appellees made baseless allegations, failing to provide

evidence to support them. The debtor also argued that, contrary
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to the appellees’ assertions, she did not intentionally omit

information from her bankruptcy documents.

With respect to the alleged omission of the rental income,

the debtor contended that her tax accountant classified certain

transactions as rental income and expenses for tax reporting

purposes, but there was “no double-counting of rent expense, no

additional rent income and no net profit or loss from such

treatment.” Because of these classifications, the debtor

“excluded them for financial presentation purposes in Schedule I

and form B22A.” She claimed that she properly calculated her

income in the B22A form because the rental income was for “tax

reporting purposes only.”

The debtor asserted that she disclosed to the chapter 7

trustee at the § 341(a) meeting that CRI operated health care

facilities. As to the proposed sale of the health care

facilities to Nassif, the debtor asserted that she had not sold

them and would not sell them without the chapter 7 trustee’s

consent. She further contended that she was not operating the

health care facilities, as her operating license had been

revoked. She claimed that the RCOC list had not been updated to

reflect this.

The bankruptcy court held a preliminary hearing on August 3,

2010, on the motion to dismiss (“preliminary hearing”). It set

over the hearing to December 16, 2010 (“dismissal hearing”). 

Shortly after the preliminary hearing, the chapter 7 trustee

filed a no asset report on August 11, 2010.

The debtor appeared at the dismissal hearing. Her attorney

at the time, Shahnaz Hussain, did not appear, however. Hussain
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10 The bankruptcy court apparently issued a tentative ruling

before the dismissal hearing. Neither the debtor nor the

appellees provided a copy of the tentative ruling in the record

on appeal, and it is not available on the bankruptcy court’s

docket.

9

believed that he did not have to appear on the debtor’s behalf,

based on a discussion with the debtor’s former attorney, Douglas

G. Miller.

According to Hussain, Miller had told him that the motion to

dismiss “should go away because [the debtor] didn’t have any

monies to pay her creditors and the [chapter 7] case was very

likely going to be discharged by [the chapter 7 trustee].” 

Miller further told him that once the chapter 7 trustee

discharged the debtor’s chapter 7 case, the appellees would “have

[no] case against [the debtor]” and that the dismissal hearing

“would have no bearing on [the debtor’s] bankruptcy case.” 

Hussain also believed that the bankruptcy court would review the

debtor’s “entire file and determine that [the] motion to dismiss

was frivolous” and “would see through [the appellees’] lies and

deny [their] frivolous motion to dismiss.” Hussain further

explained that he did not appear at the dismissal hearing because

he wanted “to save money for the [debtor].”

The bankruptcy court granted the motion to dismiss at the

dismissal hearing.10 Before the bankruptcy court entered the

dismissal order, the debtor moved for reconsideration of the

dismissal order under Civil Rule 60(b), applicable through

Rule 9024.

The debtor argued in her reconsideration motion that the
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11 The debtor also claimed that Walter, one of the

appellees, was not a credible witness because she had been

prohibited by the DSS from working at one of CRI’s health care

facilities.

The debtor attached a copy of a complaint against Walter,

which alleged that Walter had taken a client away from one of

CRI’s health care facilities and smoked marijuana with that

client. The debtor did not include any documents in the record

indicating that a determination had been reached on the complaint

against Walter.

10

appellees’ motion to dismiss lacked merit as they provided no

evidence to support their contentions in the motion to dismiss. 

She further contended that the appellees should have withdrawn

the motion to dismiss when the chapter 7 trustee filed the no

asset report. The debtor argued that the pending chapter 7

discharge, heralded by the chapter 7 trustee’s no asset report,

rendered the motion to dismiss nugatory.11

The bankruptcy court issued a tentative ruling before the

February 8, 2011 hearing on the debtor’s reconsideration motion

(“reconsideration hearing”). The bankruptcy court determined

that none of the grounds for granting reconsideration were

present. It first found that the debtor did not contend that an

intervening change in law occurred.

The bankruptcy court next determined that the debtor did not

present any newly discovered evidence, particularly in regard to

her rental income. While the motion to dismiss was pending, the

bankruptcy court expressed concern as to the amounts reported on

her income taxes as rental income. Before the dismissal hearing,

the debtor provided a letter from her tax accountant regarding

her rental income. The tax accountant explained in the letter
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that the debtor did not have any additional rental income and

that CRI was not “double-expensing it,” as CRI was disbursing the

mortgage payments and applying them against the rent it owed to

the debtor. The bankruptcy court noted in its tentative ruling

on the motion to dismiss that “Schedule I show[ed] $12,790

monthly income against $13,700 in ‘rent’ expenses. This [did]

not make a lot of sense if the debtor [owned] the properties.” 

The tax accountant’s letter “[gave] little detail and no real

explanation.”

The debtor included in the reconsideration motion the tax

accountant’s letter, along with her own declaration. The

bankruptcy court found that the debtor’s declaration offered

little additional information; it merely restated her tax

accountant’s explanation of the rental income. Although the

debtor provided more information in her declaration as to the

revocation of her operating license and her leasing arrangement

with Unique Care, the bankruptcy court found that this

information did not constitute newly discovered evidence, as the

debtor could have presented it at the dismissal hearing. The

bankruptcy court moreover concluded that the information was not

relevant to the primary issues. The bankruptcy court also found

that the complaint against Walter did not constitute newly

discovered evidence, given that the incident occurred in October

2009 and the complaint was dated December 10, 2010.

The bankruptcy court lastly determined that the debtor

failed to show that it committed clear error in granting the

motion to dismiss. It noted that the motion to dismiss “was

properly before the [bankruptcy] court and was pending long
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before [the chapter 7] Trustee’s No Asset Report was

filed. . . .”

The bankruptcy court determined that the appellees had no

obligation to withdraw the motion to dismiss simply because the

chapter 7 trustee had filed the no asset report. It pointed out

that the debtor and her attorney, Hussain, had a “basic

misunderstanding of the bankruptcy process” in believing that the

chapter 7 trustee discharged the debtor when he filed the no

asset report. The bankruptcy court explained that the chapter 7

trustee did not “‘discharge’ anything”; rather, “the discharge

[was] granted by law to eligible debtors unless an adversary

proceeding objecting to the discharge or seeking a

dischargeability determination [was] timely filed.” The

bankruptcy court further explained that the chapter 7 trustee’s

no asset report merely disclosed his determination that no assets

existed that could be efficiently liquidated to provide dividends

for unsecured creditors. The filing of a no asset report by the

chapter 7 trustee did not mean that the debtor was “home free” or

“[could] ignore motions to dismiss, which [could] be based on

other issues such as failure to adequately report or explain her

affairs.”

Having determined that the debtor failed to establish

grounds for reconsideration, the bankruptcy court denied the

reconsideration motion. It entered the reconsideration order one

week following the hearing on the reconsideration motion.

The debtor timely appealed.

///

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JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(1) and (b)(2)(O). We have jurisdiction under

28 U.S.C. § 158.

ISSUES

(1) Did the bankruptcy court abuse its discretion in

dismissing the debtor’s chapter 7 case?

(2) Did the bankruptcy court abuse its direction in denying

the debtor’s reconsideration motion?

STANDARDS OF REVIEW

“We have discretion to summarily affirm the bankruptcy

court’s rulings when an appellant fails to provide us with the

relevant transcript.” Clinton v. Deutsche Bank Nat’l Trust Co.

(In re Clinton), 449 B.R. 79, 82 (9th Cir. BAP 2011)(citing

Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1190-91

(9th Cir. 2003)).

We review the bankruptcy court’s legal conclusions de novo

and its factual findings for clear error. Price v. U.S. Trustee

(In re Price), 353 F.3d 1135, 1138 (9th Cir. 2004).

We review the bankruptcy court’s order dismissing the case

for abuse of discretion. Id. We conduct the same review for its

order denying a motion for reconsideration, whether the motion

for reconsideration is based on Civil Rule 59(e) or Civil

Rule 60(b). School District No. 1J v. AC&S, Inc., 5 F.3d 1255,

1262 (9th Cir. 1993). We also conduct the same review for the

bankruptcy court’s evidentiary rulings. Johnson v. Neilson
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12 We know that the bankruptcy court issued a tentative

ruling on the motion to dismiss because it quoted a portion of

(continued...)

14

(In re Slatkin), 525 F.3d 805, 811 (9th Cir. 2008).

We apply a two-part test to determine objectively whether

the bankruptcy court abused its discretion. United States v.

Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc). First,

we “determine de novo whether the bankruptcy court identified the

correct legal rule to apply to the relief requested.” Id.

Second, we examine the bankruptcy court’s factual findings under

the clearly erroneous standard. Id. at 1262 & n.20. We must

affirm the bankruptcy court’s factual findings unless those

findings are “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without

‘support in inferences that may be drawn from the facts in the

record.’” Id.

We may affirm on any ground supported by the record. Shanks

v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).

DISCUSSION

The debtor appeals both the dismissal order and the

reconsideration order. We address the appeal of each order in

turn.

A. Dismissal order

The bankruptcy court did not issue written factual findings

and legal conclusions when it granted the motion to dismiss. It

issued a tentative ruling, which, we presume, it adopted at the

dismissal hearing.12 We also presume that the bankruptcy court
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12(...continued)

the tentative ruling on the motion to dismiss in its tentative

ruling on the reconsideration motion.

13 Rule 8009(b)(5) provides: “If the appeal is to a

bankruptcy appellate panel, the appellant shall serve and file

with the appellant’s brief excerpts of the record as an appendix,

which shall include . . . [t]he opinion, findings of fact, or

conclusions of law filed or delivered orally by the court and

citations of the opinion if published.”

15

orally announced its factual findings and legal conclusions at

the hearing, as required under Civil Rule 52(a), which applies in

contested matters by way of Rules 1017(f), 9014 and 7052. See

Khachikyan v. Hahn (In re Khachikyan), 335 B.R. 121, 125-26 (9th

Cir. BAP 2005)(motions to dismiss under § 707(b)). See also

McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 (9th Cir.

BAP 1999)(motions to remand). We make these assumptions because

the debtor did not include in the record on appeal a transcript

of the dismissal hearing or a copy of the tentative ruling on the

motion to dismiss.

Rule 8006 requires an appellant to include any opinion,

findings of fact and conclusions of law of the court and any

transcript that will be needed in the record on appeal. 

McCarthy, 230 B.R. at 417. “These items are mandatory, not

optional.” Id. Whenever the bankruptcy court orally issues

factual findings and legal conclusions on the record, “it is

mandatory that an appellant designate the transcript under

Rule 8006 [as] [t]here is no other way for an appellate court to

be able to fathom the trial court’s action.” Id.

Rule 8009(b)(5) imposes the same requirement.13 Id. See also
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14 Rule 8009(b)(9) provides: “If the appeal is to a

bankruptcy appellate panel, the appellant shall serve and file

with the appellant’s brief excerpts of the record as an appendix,

which shall include . . . [t]he transcript or portion thereof, if

so required by a rule of the bankruptcy appellate panel.” We

have such a rule. See BAP Rule 8006-1.

16

Rule 8009(b)(9).14

As appellant, the debtor has the responsibility to provide

an adequate record on appeal. Kritt v. Kritt (In re Kritt),

190 B.R. 382, 387 (9th Cir. BAP 1995). Her record on appeal

omits the bankruptcy court’s factual findings and legal

conclusions, which renders the record incomplete as a matter of

law. See McCarthy, 230 B.R. at 417.

The debtor’s failure to provide the transcript of the

dismissal hearing allows us to dismiss her appeal of the

dismissal order. See Syncom Capital Corp. v. Wade, 924 F.2d 167,

169 (9th Cir. 1991). Alternatively, we are entitled to affirm

summarily the bankruptcy court’s decision. See Kyle v. Dye (In

re Kyle), 317 B.R. 390, 393 (9th Cir. BAP 2004), aff’d, 170 Fed.

Appx. 457 (9th Cir. 2006)(“The settled rule on transcripts in

particular is that failure to provide a sufficient transcript

may, but need not, result in dismissal or summary affirmance and

that the appellate court has discretion to disregard the defect

and decide the appeal on the merits.”)(citations omitted).

The dismissal order provides little insight as to the legal

and/or factual grounds on which the bankruptcy court dismissed

the debtor’s chapter 7 case. There are facts in the record

before us that seem to provide sufficient grounds for dismissal

under § 707(b)(1), but we cannot discern which of these the
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15 We note that nothing appears to prevent the debtor from

commencing a new bankruptcy case. The dismissal order did not

impose a bar to refiling. At oral argument, the Panel asked

debtor’s counsel why the debtor did not file a new chapter 7 case

rather than pursuing a problematic appeal. No satisfactory

answer was forthcoming.

16 The debtor did not cite in the reconsideration motion the

specific subsection of Rule 60(b) under which she sought relief.

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bankruptcy court relied upon in making its decision. Without any

factual findings or legal conclusions, we cannot determine

whether the bankruptcy court abused its discretion in dismissing

the debtor’s chapter 7 case. We thus exercise our discretion and

summarily affirm the bankruptcy court’s decision granting the

appellee’s motion to dismiss.15

B. Reconsideration order

Like the dismissal order, the reconsideration order is

perfunctory; it does not specify the legal grounds underlying the

denial of the reconsideration motion. Although the debtor sought

reconsideration under Civil Rule 60(b),16 the bankruptcy court

conducted its analysis under Civil Rule 59(e).

The Civil Rules do not recognize motions for

reconsideration. Captain Blythers, Inc. v. Thompson (In re

Captain Blythers, Inc.), 311 B.R. 530, 539 (9th Cir. BAP 2004). 

The Civil Rules do provide, however, two avenues through which a

party may obtain post-judgment relief: (1) a motion to alter or

amend judgment under Civil Rule 59(e) and (2) a motion for relief

from judgment under Civil Rule 60. Civil Rule 59(e) applies to

bankruptcy proceedings under Rule 9023, and Civil Rule 60 applies
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17 As we mentioned earlier, Civil Rule 59(e) applies to

bankruptcy proceedings under Rule 9023. Originally, the deadline

by which to file a motion for reconsideration under Civil Rule

59(e) was 10 days, but Rule 9023 was amended in 2009 to extend

the time period to 14 days.

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to bankruptcy proceedings under Rule 9024. “When taken together,

[Civil] Rule 59 and [Civil] Rule 60 encompass all possible postjudgment relief: Rule 59 incorporates common law principles of

equity for granting new trials, and [Civil] Rule 60 preserves the

relief afforded by ancient remedies for relief from settlement

judgments while abolishing the separate and independent use of

those remedies.” In re Walker, 332 B.R. 820, 831-32 (Bankr. D.

Nev. 2005)(internal citations omitted).

Civil Rule 59(e) allows for reconsideration if the

bankruptcy court “(1) is presented with newly discovered

evidence, (2) committed clear error or the initial decision was

manifestly unjust, or (3) if there is an intervening change in

controlling law. There may also be other, highly unusual

circumstances warranting reconsideration.” AC&S, Inc., 5 F.3d at

1253 (internal citation omitted). Civil Rule 60(b) allows for

reconsideration “only upon a showing of (1) mistake, surprise, or

excusable neglect; (2) newly discovered evidence; (3) fraud;

(4) a void judgment; (5) a satisfied or discharged judgment; or

(6) extraordinary circumstances which would justify relief.” Id.

(citation omitted, internal quotation marks omitted).

Where a party files a motion for reconsideration within

14 days after the entry of judgment, the motion is treated as a

motion to alter or amend judgment under Civil Rule 59(e).17 Am.
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18 We reason that the filing of a motion for reconsideration

of a bankruptcy court’s order before entry of such order is

analogous to the premature filing of a notice of appeal under

Rule 8002(a).

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Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892,

898-99 (9th Cir. 2001)(citation omitted). Otherwise, the motion

is treated as a motion for relief from a judgment or order under

Rule 60(b). Id. A party may not use a motion for

reconsideration “to present a new legal theory for the first time

or to raise legal arguments which could have been raised in

connection with the original motion . . . [or] to rehash the same

arguments presented the first time or simply to express the

opinion that the court was wrong.” Wall St. Plaza, LLC v. JSJF

Corp. (In re JSJF Corp.), 344 B.R. 94, 104, aff’d and remanded,

277 F.3d App’x 718 (9th Cir. 2006) (quoting In re Armstrong Store

Fixtures Corp., 139 B.R. 347, 349-50 (Bankr. W.D. Pa.

1992)(emphasis in original, citations omitted).

Here, the debtor filed the reconsideration motion before the

bankruptcy court entered the dismissal order. We thus conduct

our review of the bankruptcy court’s decision on the

reconsideration motion under Civil Rule 59(e).18

On appeal, the debtor argues that the bankruptcy court

should have reconsidered the dismissal order because it committed

clear error in its determinations on the motion to dismiss and

the reconsideration motion. Specifically, the debtor contends

that the bankruptcy court clearly erred when it (1) considered

the appellees’ allegations and evidence, though they were

inadmissible, and (2) denied the reconsideration motion on the
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dismissal order even though the dismissal order had not been

entered at that time.

With respect to the first point, the debtor did not raise

any specific evidentiary objections in her opposition to the

motion to dismiss, and we cannot tell from the record what, if

any, evidentiary objections were made by the debtor at the

dismissal hearing. The debtor contended that the appellees made

“baseless allegations” and failed to provide evidence to support

them. The debtor never argued that the documents and statements,

including declarations, provided by the appellees in their motion

to dismiss were inadmissible on other than general grounds. As

we stated earlier, we review the bankruptcy court’s evidentiary

rulings for an abuse of discretion. In re Slatkin, 525 F.3d at

811. “To reverse on the basis of an erroneous evidentiary

ruling, we must conclude not only that the bankruptcy court

abused its discretion, but also that the error was prejudicial.” 

Id. Here, the debtor failed to demonstrate that the bankruptcy

court made erroneous evidentiary rulings and that its errors were

prejudicial.

With respect to the second point, we do not fault the

bankruptcy court for ruling on the reconsideration motion before

the dismissal order was entered because it was the debtor who

brought the reconsideration motion to its attention. The debtor

had moved for reconsideration before the dismissal order was

entered; she cannot now complain that the bankruptcy court acted

prematurely on the reconsideration motion when she brought it in

the first place.

The debtor also maintains that “highly unusual circumstances
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were present” warranting reconsideration of the dismissal order.

Appellant’s Opening Brief at 6. According to the debtor, these

highly unusual circumstances consisted of the debtor lacking

effective legal representation at the time of the dismissal

hearing. Specifically, she complains that Miller and Hussain

both failed to provide competent legal advice, particularly in

the way they construed the chapter 7 trustee’s no asset report

and in their failure to raise evidentiary objections in

opposition to the motion to dismiss and at the dismissal hearing. 

She also complains that Hussain “abandoned her” by failing to

appear at the dismissal hearing.

Reconsideration of orders or judgments after their entry is

an extraordinary remedy that courts should use sparingly “in the

interests of finality and conservation of judicial resources.” 

Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th

Cir. 2000)(quoting 12 James Wm. Moore et al., Moore’s Federal

Practice § 59.30[4](3d ed. 2000))(internal quotation marks

omitted). Courts need to “preserve the delicate balance between

the sanctity of final judgments and the incessant command of a

court’s conscience that justice be done in light of all the

facts.” Walker, 332 B.R. at 832 (quoting Kieffer v. Riske (In re

Kieffer-Mickes, Inc.), 226 B.R. 204, 209 (9th Cir. BAP

1998))(internal quotation marks omitted).

It is unfortunate that the debtor apparently chose

incompetent counsel to represent her. But these are hardly

extraordinary circumstances warranting reconsideration; sadly,

ineffective legal representation is a circumstance that happens

more often than we like to see. See, e.g., Herrero v. Guzman
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(In re Guzman), 2010 WL 625994 at *7 (9th Cir. BAP 2010)(“The

Ninth Circuit has similarly found that attorney inexperience,

poor litigation decisions, mistakes of law, or alleged

malpractice are not encompassed under [Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993)]’s excusable

neglect analysis [for Rule 60(b) motions].”)(collecting cases,

citations omitted); Latshaw v. Trainer Wortham & Co., Inc., 452

F.3d 1097, 1101 (9th Cir. 2006); Casey v. Albertson’s Inc., 362

F.3d 1254, 1260 (9th Cir. 2004). It is not a highly unusual

circumstance that warrants the extraordinary remedy of relief

from a judgment or an order. The debtor moreover did not

establish other grounds for reconsideration under Civil

Rule 59(e). We thus conclude that the bankruptcy court did not

abuse its discretion in denying the debtor’s reconsideration

motion.

CONCLUSION

The debtor fails to show that the bankruptcy court abused

its discretion in granting the motion to dismiss and denying the

reconsideration motion. We AFFIRM.