# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued July 8, 2020 Decided July 17, 2020

Before

DIANE P. WOOD, Circuit Judge

AMY C. BARRETT, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 20-1258

In the Matter of: ANDREW and

MEGAN S. REES Appeal from the United States District
Court for the Northern District of Illinois,

Eastern Division.

No. 19-cv-3004

J ohn Robert Blakey,
J udge

.

O R D E R

Andrew and Megan Rees appeal the deni al of their motion to vacate the dismissal of their bankruptcy case. See F ED

. R. C IV

. P. 60(b)(6). Because relief under Rule 60(b)(6) requires extraordinary circumst ances that are not present here, we affirm the judgment.

The Reeses, a married couple with small children, filed for Chapter 13 bankruptcy in March 2014. At the time, they owed about $400,000 to secured creditors
and $58,000 to unsecured creditors. Their five -year repayment plan required 60 monthly
payments. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 20-1258 Page 2

The unsecured creditors were likely to re ceive most of their allowed debt and were guaranteed over 30% of it. One of the Reeses’ major unsecured creditors, Chase Bank, did not timely file claims on $28,000 of credit-card debt. Two consequences flowed as a result. First, because that debt made up about a third of the unsecured debt, the other unsecured creditors were estimated to receive over 90% (as opposed to 30%)
of the debt owed to them. Second, if the R eeses fulfilled their obligations under the fiveyear plan, that debt would be discharged without payment.

Over the course of the five-year plan , several financial blows hampered the Reeses’ ability to make their required mont hly payments. Replacing the roof of their house in 2016 cost $6,000; braces for their daughter cost $6,200 in early 2018; and repairs for their two high-mileage vehicles cost $20,000. Also, at the end of 2018, Andrew Rees changed his employment to two part-time jobs, which provided lower, though more dependable, pay.

These events led to missed payments requ ired under their plan, and the trustee

moved three times to dismiss the case fo r failure to make payments. The trustee

withdrew the first motion after the Reeses substantially cured their default, and she withdrew the second motion after the repaym ent plan was modified to account for the missed payments. Default occurred again in 2018, when the Reeses fell more than $9,000 behind on the mortgage payment, but they managed to avert foreclosure. Then, a few
months later, the trustee filed the third and fi nal motion to dismiss the case in October 2018 when the Reeses defaulted yet another time . At that point, the Reeses had made 55 of their 60 monthly payments, totaling over $46,000. The bankruptcy court granted this

motion and dismissed the Reeses ’ case for material default. Notably, during this time, the Reeses never sought to modify their payments under the plan.

Two months later, the Reeses invoked Federal Rule of Civil Procedure 60(b)(6) to ask to vacate the dismissal, raising three arguments. See F ED

. R. B ANKR . P. 9024. First, they said, the default was caused by “unfores een financial hardships” (the roof, braces, and car repairs) and Andrew’s job change. Seco nd, since the dismissal of their case, they had come up with the money to make the missed payments and to satisfy the few that remained on their plan. Third, a refusal to discharge their debts would cause them unusual hardship, given how far along they were in the five-year plan and how much money (more than $50,000 at the time of thei r Rule 60(b) motion) they had provided to comply with it. The trustee opposed the motion, completed her audit of paymentsNo. 20-1258 Page 3

made, and refunded to the Reeses any newly tendered funds. The Reeses replied that they were ready to return the refund and make the missed and remaining payments.

The court denied the Reeses’ motion. It explained that the Reeses’ circumstances were “not extraordinary,” as it “see[s] motion s like this all the time. People default on their plans. Then they race in with money and say please vacate the dismissal because we’ve got the money.” The court further reason ed that the denial of discharge was not itself an extraordinary hardsh ip because the Reeses received the “benefit[s]” of paying “down their debts during the pendency of th e case” and “the automatic stay while they made those payments.” Finally, the court stated that if it granted th e Reeses’ motion, it would “have to contradict what [it] always [does] in the face of objections from the trustee, and that is, grant all the other ones . Then we have a disincentive for people to make their plan payments.”

The district court affirmed. It ruled that the bankruptcy court reasonably

concluded that the Reeses’ circumstances were not extraordinary and, thus, did not abuse its discretion in deny ing the motion. And, because the bankruptcy court had

“determined that the facts failed to make th e case exceptional,” the bankruptcy court’s “concern that granting the Reeses relief wo uld create bad precedent was well-founded.”

On appeal, the Reeses argue that the ba nkruptcy court abused its discretion in denying their motion to vacate the dismissal. They maintain that unforeseen expenses precipitated the default, they were close to completing their bankru ptcy plan, and they could pay the remaining amount owed. The R eeses have not appealed the underlying dismissal of their bankruptcy petition; had they done so, review would be for abuse of

discretion. In re Hall , 304 F.3d 743, 746 (7th Cir. 2002). Relief under Rule 60(b) adds another layer of discretion. It is “an extrao rdinary remedy” granted “only in exceptional

circumstances.” Eskridge v. Cook County , 577 F.3d 806, 809 (7th Cir. 2009) (citing McCormick v. City of Chicago , 230 F.3d 319, 327 (7th Cir. 2000)). And relief under Rule 60(b)(6) in particular—the catchall pr ovision—is even more extraordinary. In re Neuberg v. Michael Reese Hosp. Found. , 123 F.3d 951, 955 (7th Cir. 1997) (calling Rule 60(b)(6) an “even more highly circumscri bed exception in [a] rule already limited to exceptional circumstances”). With one di scretionary judgment piled on another one, we review the decision to deny a motion unde r Rule 60(b) for an abus e of discretion and will disturb that judgment “only when ‘no reasonable person could agree’ with the decision to deny relief.” Eskridge , 577 F.3d at 809 (citing McCormick , 230 F.3d at 327).No. 20-1258 Page 4

The bankruptcy court reasonably conclu ded that circumstances preceding the Reeses’ default were ordinary and did not w arrant vacating the dismissal. The events that the Reeses cited for missing payments—predictable car maintenance, normal roof repairs, customary braces, and a voluntary change in jobs—are ordinary events and may be reasonably anticipated. The Reeses furnished no evidence that compelled the bankruptcy court to find that, in their case , they nonetheless could not have foreseen these events and planned for them.

But even if some of these events were so atypical that they could not have been reasonably foreseen, the Reeses had an op tion other than flouting their payment obligations and defaulting: they could have filed a motion under 11 U.S.C. § 1329 to modify their bankruptcy plan to account for the unexpected obligations. The Reeses’ expenses did not suddenly occur in month 55 of their 60-month plan. They occurred earlier: in 2016, when they had to repair the roof, they could have requested modification; again, in early 2018, when they had to pay for braces, they might have sought this relief; and throughout the five years when their car expenses added up, this option was available. Thus, the Reeses’ contention—that by October 2018, when the

trustee filed the third motion to dismiss, it was too late to ask the court to modify the plan—is unpersuasive.

The bankruptcy court also reasonably rejected the Reeses’ view that, because they were near discharge, had paid about 90% (or $50,000) of unsecured debt, and were ready to complete their plan, refusing to vacate the dismissal would be harsh. To be sure, Rule 60(b) is an equitable remedy, Ramirez v. United States

, 799 F.3d 845, 851 (7th Cir. 2015), so a court might reasonably conclude that a dismissal near completion of a plan is less warranted than a dismissal at its start. (The out-of-circuit cases cited by the Reeses so conclude.) But it does not fo llow that, just because a bankruptcy court may vacate a late-in-plan dismissal, it must do so. In considering the equities, the bankruptcy court reasonably observed that, although th e Reeses had paid about 90% of the debt
owed to unsecured creditors, that was “all mo ney that these folks have owed”; paying it back was thus not a gratuitous gesture. And even if a 90% repayment rate was relatively high compared to other bankru ptcy plans, as the Reeses maintain, the bankruptcy court could reasonably attribute th at rate, not to the Reeses’ industry, but to the failure of Chase—the Reeses’ major unsecured creditor—to file a claim.

This analysis suggests that the Reeses’ arg uments would not compel a reversal of a discretionary decision to dismiss their bank ruptcy case; they therefore do not compel a reversal of a discretionary refusal to gran t Rule 60(b) relief. Furt hermore, “[t]hat ruleNo. 20-1258 Page 5

is designed to allow modification in light of factual information that comes to light only after the judgment, and could not have been learned earlier.” Gleash v. Yuswak , 308 F.3d 758, 761 (7th Cir. 2002); see also In re Taylor , 575 B.R. at 394 (even more true in a Rule 60(b)(6) context). The only circumstance that arose after dismissal was the Reeses’ claim that they could now pay the debt re maining on their bank ruptcy plan. But the bankruptcy court considered that fact and st ated that it sees similar circumstances “all the time,” so it reasonably deemed this “new” situation was ordinary. See Eskridge

, 577 F.3d at 810 (The test is “not whethe r the district court might have decided differently, but whether the court’s de nial of the ... Rule 60(b) motion was unreasonable.”).

Finally, the Reeses argue that the bankru ptcy court made a reversible error of

law. See Ramirez , 799 F.3d at 849 (abuse of discretion when court commits material legal error). The court, the Reeses co ntend, wrongly feared that by granting relief in this case, it would lose its discretion to deny relief in future cases. For support, they cite this

statement from the court: “These circumstance s are ordinary. And if I grant this motion,

I’ll have to grant ... all the other ones.” (Emphasis added.) But the most natural reading of the court’s statement that is that gran ting the Reeses’ motion would create bad precedent: it would treat ordinary circumst ances as extraordinary ones and incentivize late payments. See In re Mrozinski , 489 B.R. 818, 823 (Bankr. N.D. Ind. 2013) (denying Rule 60(b) motion in part be cause “[t]o grant the debtor's motion because he has now done something he should have done mont hs ago would encourage others to [do the same] without much danger of jeopardy”). Avoiding bad precedent is appropriate judicial business, so the bankruptcy court did not commit a legal error.

AFFIRMED