- Onyeabor v. Centennial Pointe Property Owners' Assoc. (In re Onyeabor), No. UT-14-047 (BAP 10th Cir. Apr. 15, 2015)
- BAP for 10th Circuit affirmed in part, and dismissed in part, debtor's appeal of bankruptcy order denying her motion to reconsider order denying motion to vacate order converting debtor's chapter 13 case to chapter 7. BAP affirmed bankruptcy court's ruling that debtor's failure to file motion to reconsider under FRBP 9023/FRCP 59 within 14 day time limit under Rule 9023 required motion to reconsider be treated as motion under FRBP 9024/FRCP 60. Failure of court to send copy of denial order was insufficient cause to justify vacating denial order. BAP also agreed that debtor failed to present sufficient evidence of fraud to justify vacating conversion order that was two and a half years old. Debtor's arguments regarding attorney's lack of authorization to represent creditor had been previously heard and rejected by court. Debtor failed to prove due process violation in not receiving notice of order until more than 14 days had passed, and court was not required to grant hearing on issue.
- Procedural context:
- Debtor appealed to BAP two bankruptcy court orders denying her requests to reconsider order converting her chapter 13 case to chapter 7.
- In 2004, HOA and creditor filed suit against debtor for unpaid homeowner's assessments. State court entered judgment in favor of HOA only. Subsequently, state court awarded both HOA and creditor attorney's fees incurred to remove a lien wrongfully filed against creditor's property. The judgment and award became liens on debtor's property. Debtor filed chapter 13 bankruptcy and proposed plan, and multiple parties objected. Appellee creditor moved to dismiss or convert to chapter 7. Debtor objected to creditor's claim. Bankruptcy court granted creditor's motion to convert to chapter 7 and denied debtor's objection to creditor's claim. Shortly thereafter, debtor filed motion to reconsider, arguing that HOA was not properly represented by counsel. Debtor appealed the conversion order and the denial of the motion to reconsider. The BAP affirmed, and debtor appealed to the 10th Circuit, which affirmed. Two and half years later, debtor filed motion to set aside the conversion order, asserting new evidence that attorney's representing HOA was not properly engaged and had committed fraud on court. Court held hearing and concluded that there was insufficient cause for delay in presenting new evidence to court, and new evidence did not establish fraud.
- Nugent, Somers, Jacobvitz
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