- Case Type:
- Case Status:
- No. 17-1658 (7th Circuit, Apr 25,2018) Published
- Denial of Rule 60 relief proper when the "new evidence" was available via PACER at the time of trial. Court reiterated its statement in Kunilk v. Racine Cnty., 106 F.3d 168, 174 (7th Cir. 1997), that "untimely reviews of the record for supporting evidence reveal cause for sanctions...not [Rule 60 relief]." Merits appeal was filed late two years after the order dismissing that appeal. Because timely notice of appeal is jurisdictional, it is not subject to exceptions, and late filing is fatal to the appeal. Bowles, v. Russell, 551 U.S. 205, 214 (2007).
- Procedural context:
- Rather than filing a protective appeal of the dismissal of the merits appeal, Gleason filed a motion for relief under Rule 60, incorporated by Bankruptcy Rule 9024, based on "new evidence" that had been available in Debtor's related criminal case via PACER all along.
- Gleason filed an adversary proceeding against the Chapter 7 Debtor, Jansen, alleging that Jansen's debt to him was nondischargeable under 11 U.S.C. Section 523(a)(2)(A), which covers obligations obtained by "false pretenses" or other "fraud". The debt arose from a $400,000 default judgment that Gleason obtained against Jansen in a case involving an allegedly phony investment scheme. After trial, the Bankruptcy Court held that Gleason had failed to establish intentional fraud, and the District Court dismissed the "merits appeal" of that order in February 2015. The District Court entered an order affirming the Bankruptcy Court's refusal to reopen the merits case under Rule 60 two years later, in February 2017. This appeal concerns only the denial of Rule 60 relief.
- Wood, Chief Judge, and Kanne and Barrett, Circuit Judges
3495 in the system
5 Being Processed