- CC-14-1365-KiKuD (9th Cir. BAP) April 6, 2015; Not for Publication
- The Ninth Circuit Bankruptcy Appellate Panel ("BAP") affirmed the bankruptcy court's ruling in part and vacated it in part. The BAP affirmed the denial of the Debtor's motion in relation to Fed.R.Civ.P., Rule 60(b)(1), (2), (3). The 1-year limitation period is not tolled during an appeal. Motion to set aside judgments for fraud on the court have not time limit. Therefore, the BAP remanded the case to the bankruptcy court to determine whether Debtor is entitled to relief under Fed.R.Civ.P., Rule 60(d)(3)
- Procedural context:
- The bankruptcy court entered default judgment against Danny Pryor ("Debtor") excepting from discharge the claims of ITEC Financial, Inc. ("ITEC"), and denial of Debtor's discharge pursuant to 11 U.S.C. Sec. 727. Previously the BAP affirmed the bankruptcy court's ruling relating to the claims of ITEC; however, vacated the ruling denying the discharge pursuant to Sec. 727. Debtor appealed the BAP's prior decision to the Ninth Circuit Court of Appeals, which affirmed.
- On July 30, 2010, the bankruptcy court entered a judgment excepting obligations due to ITEC from discharge pursuant to 11 U.S.C. Sec. 523(a)(2)(A). On October 23, 2013, the Ninth Circuit Court of Appeals affirmed the Sec. 523(a)(2)(A) ruling. Debtor filed a motion to set aside the July 30, 2010 judgment on April 23, 2014 pursuant to Fed.R.Civ.P., Rule 60(b)(1), (2), (3), (6) and (d)(3). Debtor asserted that his motion was timely because it was filed within 1 year of the Ninth Circuit Court of Appeals ruling, and newly discovered evidence supports Debtor's assertion that ITEC's pre-petition loans were void and unenforceable. ITEC contested Debtor's motion asserting it was untimely, Debtor failed to cite any supporting authority, and requested the Debtor to be declared a vexatious litigant. The bankruptcy court denied the Debtor's motion in its entirety holding that the motion was untimely, and declared the Debtor a vexatious litigant.
- KIRSCHER, KURTZ and DUNN, Bankruptcy Judges.
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