In re Burrage

Summarized by Thomas DeCarlo , John Steinberger & Associates, PC
14 years 3 months ago

Citation:

Case No. 11-8029 File Name 11b0009n.06

Tag(s):

Ruling:

The BAP affirmed the Bankruptcy Court for the Northern District of Ohio Order Denying Motion to Reopen Adversary Proceeding and to Reconsider Court's prior Order that a settlement exsited between Debtor and Creditor.

Procedural context:

Pro Se Debtor sought to set aside settlement agreement in Adversary Proceeding and to proceed to trial on merits, alleging newly discovered evidence that no settlement actually existed.

Facts:

Debtor filed adversary proceeding against Creditor. Two months later, Debtor and Creditor allegedly reached an oral settlement. Creditor contacted Court to advise that matter had settled. One day later, Debtor contacted Court and acknowledged the oral settlement but stated that Debtor now disagreed with terms and wanted to proceed to Trial. Bankruptcy Court set evidentiary hearing to determine whether parties had reached an enforcable settlement and, if so, the terms of the settlement. Following that hearing, the Court entered its Order finding that the parties had reached a settlement and setting forth the terms of the settlement. Debtor did not appeal that Order. Debtor later sought to repoen the adversary, alleging newly discovered evidence that indicated that the parties did not agree on a settlement. The evidence consisted of a telephone bill showing that on the date the parties allegedly settled, Debtor recieved a phone call that was 56 seconds long, which Debtor claimed was "too short" to have constituted a settlement; and an affidavit of a friend of Debtor that allegedly detailed conversations between Debtor and Creditor's attorney around the date of the alleged settlement. Bankruptcy Court declined to reopen the adversary as Debtor did not produce "newly discovered" evidence. The telephone bill and the Debtor's friend were both known and available at the time of the initial evidentiary hearing at which the Court concluded that the parties had reached a settlement.

Judge(s):

Boswell, Fulton and Rhodes

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