Bourgeois v. Bank of America (In re Bourgeois)

Bourgeois v. Bank of America (In re Bourgeois), No. 12-6056 (8th Cir. BAP March 22, 2013)
Incarceration was not an exigent circumstance and Debtor did not meet the standard for a Motion for Relief from Final Judgment, Order or Proceeding under FRCP 59(e) and FRBP 9023.
Procedural context:
Bankruptcy Court dismissed case for failure to complete credit counseling requirement. Debtor filed a Motion for Reconsideration. Motion was denied as untimely. Debtor appealed. Appeal was denied as untimely and a mandate was issued by the clerk. Debtor filed a “Motion to Recall the Mandate [and] Motion to Reconsider.” The BAP characterized the motion as a “Motion for Relief from Final Judgment” and denied.
Debtor filed bankruptcy while incarcerated. The filing was precipitated by a pending foreclosure. Debtor’s Exhibit E requested a temporary waiver of the 109 credit counseling requirement and a fifteen day extension for completion. The Bankruptcy Court denied this exigent circumstance request and the court dismissed the case on August 20, 2012. No appeal of the denial of exigent circumstance order was taken. Debtor filed a motion for reconsideration of the dismissal order on September 11, 2012. The debtor reiterated his request and additionally requested a temporary restraining order to prevent the mortgagor from gaining possession of the property. The motion was denied on September 18, 2012. Notice of appeal of the motion for reconsideration was received on October 9, 2012. The appeal was dismissed as untimely and a mandate was issued by the clerk on February 8, 2013. On March 8, 2013, the debtor filed a “Motion to Recall the Mandate [and] Motion to Reconsider.” Recognizing the difficulties that the debtor had in filing his motions, the BAP assumed arguendo that the prison mailbox ruled applied and characterized the motion favorably as to the debtor. The Federal Rules and the Federal Rules of Bankruptcy Procedure do not provide for a “Motion for Reconsideration.” If the Court characterized the motion under Fed.R.Bankr.P. 9023 and Fed.R.Civ.P 59(e) as a motion to alter or amend a judgment, the motion would be untimely because the order to dismiss was entered on August 20, 2013 and the motion was filed after the deadline of September 4, 2012 (the rule has a 14 day limitation). Therefore, the Court characterized the motion under Fed.R.Bankr.P. 9024 and Fed.R.Civ.P. 60(b) as a motion for relief from a final judgment, order or proceeding. This type of motion has a very high standard, requiring mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation or misconduct by an opposing party. However, this motion has a one year limitation and therefore gave the BAP jurisdiction to hear the motion. The BAP ultimately denied the motion because no “exceptional circumstances” existed. Taylor v. United States, 642 F.2d 1118, 1119 (8th Cir. 1981) (per curiam). The BAP outlined other cases where courts refused to extend the exigent circumstance extension to incarceration. Therefore, the BAP found no abuse of discretion and affirmed the judgment.
Chief Judge Federman, Judge Saladino, Judge Nail

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