FILED

U.S. Bankruptcy Appellate Panel

of the Tenth Circuit

April 15, 2015

Blaine F. Bates

Clerk

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE MIRIAM ONYEABOR, also

known as Mariam Onyeabor, also

known as Myriam Onyeabor,

Debtor.

BAP No. UT-14-047

MIRIAM ONYEABOR,

Appellant,

Bankr. No. 11-24746

Chapter 7

v. OPINION

*

CENTENNIAL POINTE PROPERTY

OWNERS’ ASSOCIATION and LEBR

ASSOCIATES, LLC,

Appellees.

Appeal from the United States Bankruptcy Court

for the District of Utah

Before NUGENT, SOMERS, and JACOBVITZ, Bankruptcy Judges.

SOMERS, Bankruptcy Judge.

Debtor Miriam Onyeabor, pro se, appeals two bankruptcy court orders that

denied her requests to reconsider an order converting her Chapter 13 case to

Chapter 7. This is Debtor’s second appeal attacking the conversion order that

1

This unpublished opinion may be cited for its persuasive value, but is not

*

precedential, except under the doctrines of law of the case, claim preclusion, and

issue preclusion. 10th Cir. BAP L.R. 8026-6.

The parties did not request oral argument, and after examining the briefs

1

and appellate record, the Court has determined unanimously that oral argument

(continued...)
was previously affirmed by this Court and the Tenth Circuit. In this appeal,

2

Debtor claims the bankruptcy court erred by: 1) refusing to extend the time to file

a motion under Federal Rule of Bankruptcy Procedure 9023 despite the court

3

clerk’s failure to comply with Rule 9022’s mandate to immediately serve notice

of the entry of an order denying reconsideration, 2) treating her motion as one

under Rule 60 and denying relief on the ground the motion merely revisited

previously rejected arguments, and 3) denying relief under Rule 60(b)(2), (b)(3)

and (d)(3) on the ground the evidence Debtor presented was insufficient to show

fraud on the court had occurred. After carefully reviewing the record, we

AFFIRM in part and DISMISS in part.

4

I. Factual Background

Detailed facts regarding the parties, their long litigation history, and the

bankruptcy case were set forth in the opinions deciding Debtor’s first appeal, and

5

will not be repeated here except as relevant to our analysis.

In 2004, Centennial Pointe Property Owners’ Association (the “POA”) and

LEBR Associates, LLC (“LEBR”) (collectively “Appellees”) filed suit against

(...continued)

1

would not significantly aid in the determination of this appeal. See Fed. R.

Bankr. P. 8019(b)(3). The case is therefore ordered submitted without oral

argument.

Onyeabor v. Centennial Pointe Owners Ass’n (In re Onyeabor), BAP No.

2

UT-11-117, 2013 WL 819726 (10th Cir. BAP Mar. 6, 2013), aff’d, 535 Fed.

App’x 725 (10th Cir. 2013).

All future references to “Rule” refer to the Federal Rules of Civil

3

Procedure or the Federal Rules of Bankruptcy Procedure; those denominated in a

single or double digit are Civil Rules, and those denominated in the thousands are

Bankruptcy Rules.

Debtor’s Motion to Amend her appellate brief, filed on February 4, 2015, is

4

GRANTED.

Onyeabor, 2013 WL 819726 at *1-10; Onyeabor, 535 Fed. App’x at 726-

5

28.

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Debtor in state court for unpaid POA assessments. In 2007, the state court

6

granted judgment in favor of the POA only and awarded it $95,213.70 plus

interest. In 2010, the state court awarded the POA and LEBR jointly $7,916.11

for attorney’s fees incurred to remove a lien Debtor wrongfully filed against

LEBR’s property. Together, the 2007 and 2010 awards became liens on Debtor’s

property (the “Judgment Lien”).

Debtor filed a voluntary Chapter 13 petition on April 5, 2011, and a

Chapter 13 plan on April 21, 2011. The plan proposed sixty monthly payments of

$445 to the Chapter 13 Trustee and an unspecified monthly payment directly to

several creditors (who are not parties to this appeal) holding mortgages against

Debtor’s commercial and residential properties. The plan drew objections from

the Chapter 13 Trustee, the Salt Lake County (“SLC”) Treasurer, and Appellees,

who had jointly filed a proof of claim asserting secured claims totaling

$385,097.07 (POC #7). The Trustee complained about missing information,

7

procedural violations, and improper deductions. The SLC Treasurer objected to

the lack of a plan provision to pay for prepetition property taxes. Appellees

asserted Debtor’s plan was infeasible and filed in bad faith.

Appellees also filed a motion under 11 U.S.C. § 1307(c) to dismiss or

convert the case to Chapter 7. Debtor filed an objection to POC #7, contesting

whether the claim was secured and nondischargeable, whether the POA and LEBR

had standing to file it, and whether there was sufficient substantiation of the

LEBR was a member of the POA who advanced funds to the POA to cover

6

Debtor’s unpaid assessments, which Debtor has not paid since 2002.

That sum included the Judgment Lien, accrued interest, unpaid POA

7

assessments postdating the period covered by the Judgment Lien, and costs for

insurance, utilities, maintenance, repair, and collection accrued since July 30,

2010.

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amount owed in excess of the Judgment Lien.

8

On October 6, 2011, the bankruptcy court held a hearing on the motion to

dismiss or convert and on Debtor’s objection to POC #7. The bankruptcy court

granted the motion to convert and declared Debtor’s objection to POC #7 to be

moot (the “Conversion Order”). Specifically, the bankruptcy court found that:

1) the plan made no provision for payment of the Judgment Lien or unpaid

prepetition property taxes, 2) Debtor’s income was insufficient to support her

plan or even to pay the Judgment Lien, 3) although Debtor’s case had been

pending for six months, she had not addressed the Trustee’s objections or made

any effort to amend the plan, 4) Debtor’s bankruptcy filing was motivated by a

desire to avoid paying the POA and LEBR, 5) Debtor failed to articulate any

potentially feasible plan, 6) the plan was filed in bad faith, and 7) Debtor’s

objection to POC #7 was moot in light of the conversion.

Shortly thereafter, Debtor sought reconsideration of the Conversion Order,

arguing that the POA was not properly represented by counsel in the bankruptcy

proceedings (the “First Motion”). The bankruptcy court held another hearing and

denied the motion, finding that the POA was a legal entity and represented by

counsel. The court also pointed out that even if LEBR was not entitled to

advance claims in the bankruptcy proceeding, the POA was a judgment creditor

entitled to do so with respect to at least a minimum of $95,000 of the Judgment

Lien, which Debtor agreed was a secured claim. The court further stated it was

not the proper place to litigate Debtor’s contention that LEBR’s principals, the

“Railes,” had “hijacked” the POA by directing and controlling its actions in the

bankruptcy case despite the fact that LEBR had sold all of its Centennial Pointe

property before Debtor filed her bankruptcy petition.

See Onyeabor, 535 Fed. App’x at 727 (Tenth Circuit’s summary of

8

Debtor’s Objection to POC #7).

-4-
Debtor appealed the Conversion Order and the order denying

reconsideration of that order to this Court, which affirmed the bankruptcy court’s

decisions. Debtor then appealed the BAP decision to the Tenth Circuit, which

9

likewise affirmed.

10

On April 7, 2014, two and a half years after the bankruptcy court decided to

convert Debtor’s case and six months after the Tenth Circuit affirmed that

decision in her first appeal, Debtor filed a Rule 60(b) motion to set aside the

Conversion Order and for a new trial, claiming she had discovered new evidence

that proved the law firm of Cohne, Rappaport, & Segal (“CRS”) was not

authorized to represent the POA and had therefore committed a fraud on the court

(the “Second Motion”). Appellees objected to the motion. On June 17, 2014,

11 12

the bankruptcy court held a hearing at which Debtor appeared, and orally denied

the Second Motion, concluding: 1) Debtor could have obtained the new evidence

years earlier, 2) the new evidence did not clearly and convincingly show fraud or

misrepresentations by CRS, 3) there was no evidence that the alleged fraud

substantially interfered with Debtor’s ability to fully and fairly prepare for trial,

4) the new evidence would not have produced a different result, 5) the motion was

untimely for the claims under Rule 60(b)(2) and (b)(3), and 6) relief under Rule

60(d)(3) was not warranted. The court ordered Appellees’ counsel to prepare an

13

order that referenced its oral findings and conclusions. Two days later, on June

Onyeabor, 2013 WL 819726.

9

Onyeabor, 535 Fed. App’x 725.

10

Partial Transcript of June 17, 2014 Hearing on Motion to Set Aside Orders

11

(“June 17, 2014 Hr’g Tr.”) at 27-28, in 2nd Amended Appellant’s Appendix

(“App.”) at 168-69. CRS was the attorney of record for both the POA and LEBR,

who have jointly filed all pleadings in the bankruptcy case.

Neither a copy of the motion nor the objection to it was provided to us.

12

June 17, 2014 Hr’g Tr. at 27-33, in App. at 168-74.

13

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19, 2014, the court entered a written order denying the Second Motion to set aside

the Conversion Order (the “June 19 Order”). Inexplicably, neither a copy of the

14

June 19 Order nor notice of its entry was sent to Debtor until July 7, 2014, when

she called the bankruptcy court clerk (the “Clerk”) inquiring when the deadline to

file a motion for rehearing under Rule 9023 began and expired.

On July 10, 2014, Debtor filed a motion to set the date she actually

received notice of the June 19 Order as the determinative date when the time

began to run for her to file a motion under Rule 9023 (the “Motion to Set

Deadline”). On July 18, 2014, she filed a motion to set aside the June 19 Order

based on the Clerk’s failure to send her notice of the order’s entry (the “Third

Motion”). On August 27, 2014, the court held a hearing on these motions and

15

orally denied them, concluding that: 1) Rule 9006 prohibited the court from

enlarging the time to file a motion under Rule 59, and 2) the Third Motion simply

revisited arguments previously heard and rejected; thus relief under Rule 60(b)

was inappropriate. The court entered a written order denying both the Motion to

16

Set Deadline and the Third Motion on August 28, 2014 (the “August 28 Order”).

17

Debtor now appeals the August 28 Order and the June 19 Order.

18

Order Denying Debtor’s Motion to Set Aside the Order of October 12,

14

2011, in App. at 10-13.

Debtor did not provide us with a copy of this motion.

15

Partial Transcript of August 27, 2014 Hearing on Motions (“August 27,

16

2014 Hr’g Tr.”) at 14-15, in App. at 134-35.

Order Denying Debtor’s Amended Rule 59(e) Motion for Rehearing, in

17

App. at 8.

Debtor’s notice of appeal listed only the August 28 Order. Notice of

18

Appeal, in App. at 5-6. Her appellate brief, however, stated that she was

appealing the bankruptcy court’s decision of June 17 and 19, 2014 as well as the

August 28 Order. 2nd Amended Appellate Brief (“Appellant’s Br.”) at i, 1.

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II. Appellate Jurisdiction and Standard of Review

This Court has jurisdiction to hear timely-filed appeals from “final

judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,

unless one of the parties elects to have the district court hear the appeal. Debtor

19

has timely filed a notice of appeal from the August 28 Order, which is a final

order for purposes of appeal. The parties have consented to this Court’s

20

jurisdiction by not properly electing to have the appeal heard by the United States

District Court for the District of Utah. This Court, therefore, has appellate

21

jurisdiction over this appeal. However, as explained below, Debtor’s notice of

appeal of the June 19 Order was not timely filed, so we do not have jurisdiction

over her appeal of that order.

This Court reviews orders denying relief under Rule 59 or Rule 60(b) for an

abuse of discretion. Under this standard, a trial court’s decision will not be

22

reversed unless its ruling is based on an erroneous conclusion of law or relies on

clearly erroneous factual findings. Whether bankruptcy court proceedings have

23

28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002.

19

In re Ewing, Nos. UT-07-074, 05-29650, 2008 WL 762458, at *1 & n.4

20

(10th Cir. BAP Mar. 24, 2008) (order denying Rule 60(b) relief is final,

appealable order, citing Stouffer v. Reynolds, 168 F.3d 1155 (10th Cir. 1999)).

28 U.S.C. § 158(c)(1); Fed. R. Bankr. P. 8001(e) (now at Fed. R. Bankr. P.

21

8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001-1 (now at 10th Cir. BAP

L.R. 8005-1, effective Dec. 1, 2014). Debtor had requested the appeal be heard

by the district court, but it was denied because her election was not filed

separately from her notice of appeal as required by the rules that were in effect at

that time. See Onyeabor v. Centennial Pointe Owners Ass’n, BAP No. UT-14-047

(10th Cir. BAP Sept. 11, 2014) (Order Denying Election to U.S. District Court).

Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1287 (10th Cir. 2003)

22

(order denying Rule 59(e) motion reviewed for abuse of discretion); Servants of

the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000) (denial of Rule 60(b)

motion reviewed for abuse of discretion).

Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013).

23

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violated a party’s due process rights is a legal question reviewed de novo. De

24

novo review requires an independent determination of the issues, giving no

special weight to the bankruptcy court’s decision.

25

III. Analysis

Debtor raises two issues in this appeal: 1) the bankruptcy court denied her

due process when it treated the Third Motion as an untimely Rule 59 motion; and

2) the bankruptcy court erroneously denied the Second Motion by concluding she

had failed to present sufficient evidence to establish under Rule 60(b)(2), (b)(3),

and (d)(3) that the Conversion Order had been obtained by a fraud on the court.

We begin our analysis with a review of the rules governing motions to reconsider

and the enlargement of time to do a prescribed act. We then address Debtor’s

arguments in the order she made them.

A. Motions to Reconsider in General

Motions to reconsider are not specifically mentioned in the Federal Rules

of Civil or Bankruptcy Procedure. The rules allow a litigant subject to an adverse

judgment to file either a motion to alter or amend the judgment pursuant to Rule

59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Rule

59(e) and Rule 60(b) are made applicable to bankruptcy proceedings by Rules

9023 and 9024, respectively. Although they may overlap, these two rules are

26

distinct.

27

State Bank v. Gledhill (In re Gledhill ), 76 F.3d 1070, 1083 (10th Cir.

24

1996).

Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991).

25

We will refer to the type of reconsideration motion by the Civil Rule

26

numbers, Rule 59 and Rule 60.

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); 11

27

Charles Alan Wright, et al., Federal Practice & Procedure § 2817 (3d ed. 2012)

(“There is a considerable overlap between Rule 59(e) and Rule 60.”).

-8-
Generally, which rule applies to a motion depends on when the motion is

filed. Rule 9023 states, “A motion for a new trial or to alter or amend a

28

judgment shall be filed, and a court may on its own order a new trial, no later

than 14 days after entry of judgment.” In contrast, Rule 9024 adopts the time

29

parameters of Rule 60(c)(1), which provides that a motion for relief from

judgment must be filed within a reasonable time, and, for certain grounds, within

one year after entry of the judgment. Ordinarily, if a motion to reconsider is filed

within Rule 9023’s time limitation, it is treated as a Rule 59(e) motion; if it is

filed more than fourteen days after entry of judgment, it is treated as a motion

under Rule 60(b).

30

It is important to determine whether a motion for reconsideration is brought

under Rule 59 or 60 because the former tolls the time to file an appeal, while the

latter generally does not. Generally, “an appeal from the denial of a motion to

31

reconsider construed as a Rule 59(e) motion permits consideration of the merits of

the underlying judgment, while an appeal from the denial of a Rule 60(b) motion

does not itself preserve for appellate review the underlying judgment.”

32

Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005).

28

Fed. R. Bankr. P. 9023 (emphasis added). Rule 9023 adopts Rule 59 but

29

reduces the time for filing a motion for a new trial or a motion to alter or amend a

judgment from twenty-eight to fourteen days, to conform to Rule 8002(a)’s

deadline for filing a notice of appeal. See 2009 Advisory Committee Note to Rule

9023.

Price, 420 F.3d at 1167.

30

See Fed. R. App. P. 4(a)(4); Fed. R. Bankr. P. 8002(b). A Rule 60 motion

31

filed within 14 days after the entry of the judgment, however, tolls the appeal

time.

Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995); Van Skiver, 952 F.3d

32

at 1243 (motion construed as one pursuant to Rule 60(b) did not raise underlying

judgment for appellate review); In re Cruz, 516 B.R. 594, 601 (9th Cir. BAP

2014) (when a motion for reconsideration under Rule 60(b) is filed within 14 days

of entry of the underlying order, appellate court has jurisdiction to review both

the underlying order and the order denying reconsideration.).

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Common to both types of motions is Rule 6(b)(2), which prohibits a court

from extending the time to file them. Rule 9006(b), patterned after Rule 6(b),

governs the enlargement of time under the Bankruptcy Rules. Subsection (1) of

Rule 9006(b) allows the court to enlarge the time for a party to act (such as by

filing a motion) if the request for more time is made within the specified period

and cause is shown. If the motion is made after the expiration of the specified

time, the court may only enlarge the time where the failure to act was the result of

excusable neglect. Subsection (2), however, says that “[t]he court may not

33

enlarge the time for taking action under Rules . . . 9023, and 9024.” Rule 9023

34

provides no exceptions to the fourteen-day rule. Thus, the bankruptcy court

correctly concluded that Rule 9006 prohibited it from enlarging the time for

Debtor to file a motion under Rule 59.

35

Here, the June 19 Order was entered on June 19, 2014. The Third Motion

was filed twenty-one days later. Thus, the bankruptcy court did not err in treating

it as a motion under Rule 60. If the bankruptcy court had not treated the Third

36

Motion as a motion under Rule 60, it would have been denied as untimely.

B. The August 28 Order

1. The bankruptcy court did not deny Debtor due process.

Debtor contends that the bankruptcy court violated her due process rights

when it rejected her request to cure the Clerk’s failure to notify her of the entry of

the June 19 Order and treat the Third Motion as a timely-filed Rule 59 motion.

37

Fed. R. Bankr. P. 9006(b)(1).

33

Fed. R. Bankr. P. 9006(b)(2).

34

See August 27, 2014 Hr’g Tr. at 14, ll. 14-15, in App. at 134.

35

See Van Skiver, 952 F.2d at 1243 (motion filed after Rule 59(e) time limit

36

expired must be construed as one under Rule 60).

Appellant’s Br. at 12-16.

37

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She argues that Rule 9022’s provision that “[l]ack of notice of the entry does not

affect the time to appeal” is inapplicable because she was not filing an appeal, but

a motion for reconsideration. She also argues that her pro se and non-electronic

38

court filing (ECF) statuses present unique circumstances that warrant treating her

motion as timely. Finally, she argues that the bankruptcy court should have

39

invoked Rules 6 and 26, as well as the bankruptcy court’s equitable powers under

§ 105, to cure the notice deficiency. Debtor’s arguments are unpersuasive.

40

First, we see no due process violation. The Due Process Clause of the Fifth

Amendment protects persons from the deprivation of “life, liberty, or property,

without due process of law.” There are two types of due process violations:

41

procedural and substantive. “Procedural due process ensures the [government]

will not deprive a party of property without engaging in fair procedures to reach a

decision, while substantive due process ensures the [government] will not deprive

a party of property for an arbitrary reason regardless of the procedures used to

reach that decision.”

42

Debtor has alleged a procedural due process violation, which prompts a

two-step inquiry: 1) whether the plaintiff has been deprived of a protected

interest and 2) whether the procedures followed in depriving the plaintiff of that

Appellant’s Br. at 15 (“This case does not concern appeal; the exception is

38

inapplicable.”).

Id. at 12-13.

39

Id. at 14-15.

40

U.S. Const. amend. V. The Fifth Amendment applies to the federal

41

government, of which the bankruptcy court is a part, and the Fourteenth

Amendment applies to state governments, but case law under the Fourteenth

Amendment can be applied to claims under the Fifth Amendment because the

reach of both the Due Process Clauses is “coextensive.” Walker v. R.J. Reynolds

Tobacco Co., 734 F.3d 1278, 1287 (11th Cir. 2013) (quoting Rodriguez–Mora v.

Baker, 792 F.2d 1524, 1526 (11th Cir. 1986)).

Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.

42

2000).

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interest comported with the “due process of law.” A constitutionally-protected

43

property interest is a legitimate claim of entitlement to some benefit. A

44

property interest is more than an abstract need or desire or a unilateral

expectation. Property interests are not created by the federal constitution, but

45

rather are created and defined “by existing rules or understandings that stem from

an independent source such as state law — rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.”

46

Debtor argues that Rule 9022’s mandate that the Clerk shall immediately serve

notice of the entry of a judgment or order gave her a right to notice. But

protected interests are substantive rights, not rights to procedures. “[A]n

47

entitlement to nothing but procedure cannot be the basis for a liberty or property

interest.” Accordingly, we conclude that Debtor’s right to notice under Rule

48

9022 of the entry of a judgment is not an interest protected by the Due Process

Clause.

Even if some constitutionally-protected property interest were found to

exist, the procedures the bankruptcy court followed were sufficient. Due process

is satisfied when the “notice [is] reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” The nature of the

49

Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012).

43

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

44

Id.

45

Id.

46

Elliot, 675 F.3d at 1245.

47

Stein v. Disciplinary Bd., 520 F.3d 1183, 1192 (10th Cir. 2008) (brackets

48

and internal quotation marks omitted).

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

49

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proceeding determines the type of notice and hearing required. The proceeding

50

at issue was a motion to alter or amend under Rule 59. The bankruptcy rules

clearly provide notice to litigants about how to seek relief under Rule 59. Pro se

litigants are obliged to know and follow court rules. Additionally, parties to

51

litigation have an affirmative duty to monitor the docket for their case to inform

themselves of entry of orders they may wish to appeal, whether it be by filing a

Rule 59 motion or a notice of appeal. Rule 9023 clearly states that “[a] motion

52

for a new trial or to alter or amend a judgment shall be filed . . . no later than 14

days after entry of judgment.” Rule 9006(b)(2) makes it clear that this time may

not be enlarged. Debtor knew that the bankruptcy court had denied the Second

Motion. She was present at the June 17 hearing, fully aware that a written order

would follow shortly, and that the rules required action within 14 days. It was

53

incumbent on Debtor to monitor the docket for the entry of the order so she would

know when she should start counting the 14 days. Debtor, however, waited

twenty days after the June 17 hearing to call the Clerk to inquire when she should

start counting the 14 days.

Rule 9022(a) supports this result. Rule 9022(a) warns that lack of notice of

the entry of a judgment does not affect the time to appeal. Even though Rule

Id. at 314-15.

50

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

51

2005).

See Delaney v. Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994)

52

(parties have affirmative duty to monitor dockets to inform themselves of entry of

orders they may wish to appeal); Brown v. Zarek, No. 98-5097, 1998 WL 738340,

at *1 (10th Cir. Oct. 22, 1998); Durie v. Marchessault (In re Marchessault), 416

B.R. 898, 899 (Bankr. M.D. Fla. 2009).

August 27, 2014 Hr’g Tr. at 12, ll. 3-7, in App. at 133 (“Ms. Onyeabor:

53

Well, what had happened was I didn’t know what date to — there’s a 14 day gap

in which I was going to file for rehearing and I didn’t know when to start

counting because when I called them on the 7th that was the first time they

emailed me the order.”).

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9022’s “does not affect” provision only references the time to appeal, the

advisory committee note to that rule’s correlative Civil Rule (Rule 77) explains

that “[n]otification by the clerk is merely for the convenience of litigants” and

warns that it is “unsafe for a party to rely on absence of notice from the clerk of

the entry of a judgment” as a ground to excuse an untimely filing. “[C]ourts

54

have repeatedly held that failure to receive notice of the entry of a judgment is

not a defense to an untimely appeal because litigants have an affirmative duty to

monitor the dockets to keep apprised of the entry of orders that they may wish to

appeal.” We think it is reasonable to apply Rule 9022’s “lack of notice of the

55

entry does not affect the time to appeal” provision to the time to file a motion

under Rule 59 because 1) Rule 9022 references Rule 8002, which lists matters

that can affect the time to appeal, but the list does not include a lack of notice of

the entry of the judgment, 2) Rule 8002 and Rule 9023 are analogous, both

providing the same time limit (14 days) and the same triggering event (the entry

of the judgment), and 3) litigants have a duty to monitor the docket in their case

The Advisory Committee Note to Rule 9022 states that “Subdivision (a) of

54

this rule is an adaptation of Rule 77(d)” of the Federal Rules of Civil Procedure.

The Advisory Committee Note (1946) to Rule 77(d) states that:

[N]otification by the clerk of the entry of a judgment has nothing to

do with the starting of the time for appeal; that time starts to run

from the date of entry of judgment and not from the date of notice of

the entry. Notification by the clerk is merely for the convenience

of litigants. And lack of such notification in itself has no effect

upon the time for appeal; but in considering an application for

extension of time for appeal as provided in Rule 73(a), the court may

take into account, as one of the factors affecting its decision, whether

the clerk failed to give notice as provided in Rule 77(d) or the party

failed to receive the clerk’s notice. It need not, however, extend the

time for appeal merely because the clerk’s notice was not sent or

received. It would, therefore, be entirely unsafe for a party to

rely on absence of notice from the clerk of the entry of a

judgment. . . .” (Emphasis added).

Freeman v. Loomas (In re Loomas), BAP No. CO-13-17, 2013 WL

55

5615943, at *4 (10th Cir. BAP Oct. 15, 2013) (internal quotations and citations

omitted). See also In re Delaney, 29 F.3d at 518.

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to determine when an appeal must be filed.

56

In any event, Debtor was not denied any hearing on the Third Motion.

Although Debtor lost the opportunity to seek relief under Rule 59 due to the Third

Motion’s untimeliness, she was given a meaningful opportunity to be heard under

Rule 60. Because she was given a meaningful opportunity to be heard, there was

no due process violation.

Second, Appellant’s argument that her pro se and non-ECF statuses present

unique circumstances justifying the extension of the time to file a Rule 59 motion

is unavailing. The so-called “unique circumstances” doctrine excuses an

57

untimely appeal “where a party has performed an act which, if properly done,

would postpone the deadline for filing his appeal and has received specific

assurance by a judicial officer that this act has been properly done.” The judge

58

must give a specific assurance concerning the timeliness of the postjudgment

motion (e.g., affirmatively state that the motion was timely or that it tolled the

time period). Whether this doctrine is available to excuse an untimely Rule 59

59

filing is uncertain. We need not decide this question, however, because even if

60

See King v. Comm’r of Social Sec., 230 Fed. App’x 476, 478 (6th Cir.

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2007) (clerk’s failure to notify party of entry of judgment does not affect time to

file motion under Fed. R. Civ. P. 59(e)).

Appellant’s Br. at 12.

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Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). The Supreme

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Court adopted the “unique circumstances” doctrine in Harris Truck Lines, Inc. v.

Cherry Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam), applied it in

Thompson v. INS, 375 U.S. 384 (1964) (per curiam), and narrowed it in

Osterneck.

United States v. Garduño, 506 F.3d 1287, 1292 (10th Cir. 2007); see also

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In re Bond, 254 F.3d 669, 674-75 (7th Cir. 2001) (assurance must go to timeliness

of appellant’s action); Fruit of the Loom, Inc., v. Am. Mktg. Enters., Inc., 192

F.3d 73, 76-77 (2d Cir. 1999) (judge must give specific assurances concerning

timeliness of postjudgment motion).

In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court rejected the

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unique circumstances doctrine in the context of jurisdictional rules, overruling

(continued...)

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the doctrine is available, the facts here do not qualify as unique circumstances.

The bankruptcy court made no specific assurances to Debtor that her time to file a

Rule 59 motion would not begin to run until the Clerk gave notice of entry of the

June 19 Order. The language in the June 19 Order instructing the Clerk to serve

notice of its entry is insufficient to constitute such an assurance, a prerequisite to

applying the unique circumstances doctrine. Pro se and non-ECF statuses are

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not unique circumstances. Many litigants represent themselves. As the

bankruptcy court advised Debtor, pro se status does not excuse a party’s

obligation to know and comply with the same rules that govern other litigants.

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Third, Debtor’s reliance on Rules 6 and 26 is misplaced. Rule 26 is not

applicable because it governs discovery and provides relief for discovery-related

violations, not for violations of the notice requirement of Rule 9022. Rule 6 is

also not applicable. In contested matters, Rule 9006 applies, not Rule 6. Even

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if Rule 6 applied, like Rule 9006, it too explicitly states that a court may not

(...continued)

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Harris Truck and Thompson. The Court explained that generally, statutory-based

filing periods are jurisdictional, while court-promulgated time limits are claimprocessing rules. Id. at 210-13. The Court concluded that because Rule 4 of the

Federal Rules of Appellate Procedure is a jurisdictional rule since it carries a

statutory time limit into practice, the unique circumstances doctrine cannot be

used to excuse an untimely notice of appeal. Id. at 214. Prior to Bowles, the

Tenth Circuit treated Rule 59 as a jurisdictional rule. Watson v. Ward, 404 F.3d

1230 (10th Cir. 2005) (concluding courts lack jurisdiction to consider untimely

Rule 59(e) motions). The Tenth Circuit has not yet decided whether Rule 59 is a

jurisdictional or a claim-processing rule in light of the Supreme Court’s recent

decisions making such a distinction. Martinez v. Carson, 697 F.3d 1252, 1258 n.

1 (10th Cir. 2012).

See In re Bond, 254 F.3d at 674-75 (single sentence in order stating that

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“[the first] motion [to reopen appeal] is moot and that if she continues in her

position that these cases should be reopened, she must file a new motion” did not

constitute type of specific assurance that triggers unique circumstances doctrine).

Garrett, 425 F.3d at 840.

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See Fed. R. Bankr. P. 9014(c) (identifying applicable rules to contested

63

matters).

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enlarge the time to file a motion to alter or amend a judgment.

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Finally, although the bankruptcy court’s equitable powers under § 105 are

broad, they are not unlimited. Under § 105(a), a bankruptcy court “may issue any

order, process, or judgment that is necessary or appropriate to carry out the

provisions of [the Bankruptcy Code].” The Supreme Court has stated that a

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bankruptcy court’s equitable powers “must and can only be exercised within the

confines of the Bankruptcy Code.” Similarly, the Tenth Circuit has said that a

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bankruptcy court’s equitable powers under § 105(a) “‘may not be exercised in a

manner that is inconsistent with the other, more specific provisions of the

[Bankruptcy] Code.’” The applicable procedural rules contemplate that notice

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of the entry of a judgment might not be given and specifically provide that lack of

notice will not toll the time to act after the judgment is entered.

2. The bankruptcy court did not abuse its discretion in denying

Rule 60(b) relief.

Rule 60(b), made applicable in bankruptcy proceedings by Rule 9024,

provides that the court may grant relief from a judgment based on one or more of

the following:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Rule 59(b);

(3) fraud, . . . misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; (5) the judgment has been satisfied,

released, or discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively is no longer

Compare Fed. R. Civ. P. 6(b) (“A court must not extend the time to act

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under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”) with Fed. R.

Bankr. P. 9006(b)(2) (“The court may not enlarge the time for taking action under

Rules . . . 9023, and 9024.”).

11 U.S.C. § 105(a).

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Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988).

66

United States v. Richards (In re Richards), 994 F.2d 763, 765 (10th Cir.

67

1993) (quoting Landsing Diversified Props.-II v. First Nat’l Bank and Trust Co.

(In re W. Real Estate Fund, Inc.), 922 F.2d 592, 601 (10th Cir. 1990)).

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equitable; or (6) any other reason that justifies relief.

Relief under Rule 60(b) is afforded only in exceptional circumstances.

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The bankruptcy court denied the Third Motion because the motion simply

revisited arguments previously heard and rejected. We agree with the

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bankruptcy court’s assessment. In the First Motion, Debtor alleged, among other

things, that LEBR’s principal had hijacked the POA by directing and controlling

its actions in the bankruptcy case. In the Second Motion, she made a similar

claim, but added that “she has discovered new evidence, specifically that

shareholders or members of the [POA] were not aware of the actions before this

court and have not authorized [CRS] to represent the homeowner’s association” in

bankruptcy court. The Third Motion requested a rehearing based on the lack of

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notice to Debtor of the entry of the June 19 Order; it did not raise any new

grounds for relief.

The hearing transcript on the Third Motion indicates that Debtor wanted the

bankruptcy court to review her new evidence again. Debtor described the central

issue as “Newly discovered evidence is the focus at this hearing, what the owners

are saying now is the focus of this hearing . . . .” Thus, Debtor cited the lack of

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notice of the entry of the judgment as a pretext to revisit issues regarding the

POA’s participation in the bankruptcy case, which she raised in the First and

Second Motions and which were rejected by the bankruptcy court. “It is improper

for a court to grant relief under Rule 60(b) if, in doing so, the court simply

State Bank v. Gledhill (In re Gledhill), 76 F.3d 1070, 1080 (10th Cir.

68

1996).

August 27, 2014 Hr’g Tr. at 15, in App. at 135.

69

June 17, 2014 Hr’g Tr. at 27-28, in App. at 168-69 (bankruptcy court

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summarizing the Second Motion).

August 27, 2014 Hr’g Tr. at 4, ll. 13-14, in App. at 125.

71

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revisits arguments which had already been raised and dismissed.” For this

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reason, the bankruptcy court did not abuse its discretion in denying the Third

Motion.

C. The June 19 Order

Rule 8002 requires a notice of appeal to be filed within fourteen days of the

date of the entry of the order appealed from or fourteen days from the entry of an

order disposing of a timely-filed motion of the kind set forth in Rule 8002(b).

Debtor’s Notice of Appeal was filed on September 10, 2014, eighty-three days

after the entry of the June 19 Order. The Third Motion did not toll the period to

appeal the June 19 Order because (as discussed above) it was not a timely-filed

motion under Rule 9023, nor was it a Rule 9024 motion filed within fourteen days

of the June 19 Order’s entry. Debtor’s appeal of the June 19 Order was thus

untimely. Accordingly, we lack jurisdiction to review the June 19 Order and

dismiss her appeal of it for lack of appellate jurisdiction.

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IV. Conclusion

The Clerk’s failure to give the notice required by Rule 9022 did not violate

Debtor’s right to due process. Rule 9006(b)(2) precluded the bankruptcy court

from enlarging Debtor’s time to file a motion under Rule 9023 even though the

Clerk failed to comply with Rule 9022’s mandate to immediately serve notice of

the entry of the June 19 Order. Because the Third Motion was filed more than

fourteen days after the entry of the June 19 Order, we conclude the bankruptcy

court properly treated it as a motion filed under Rule 60. And because the Third

Motion merely revisited previously rejected arguments, the bankruptcy court did

Ebel v. Ebel (In re Ebel), Case No. 96-1190, 1997 WL 428574, at *5 (10th

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Cir. July 30, 1997) (citing Van Skiver, 952 F.2d at 1244).

Dimeff v. Good (In re Good), 281 B.R. 689, 694-95 (10th Cir. BAP 2002)

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(failure to timely file notice of appeal is jurisdictional defect barring appellate

review and requires dismissal for lack of appellate jurisdiction).

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not abuse its discretion in denying relief under Rule 60(b). Finally, because the

Third Motion was not of a kind set forth in Rule 8002(b), the appeal of the June

19 Order was untimely. For these reasons, we AFFIRM the August 28 Order and

DISMISS the appeal of the June 19 Order for lack of appellate jurisdiction.

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