Rivera v. ASUME (In re Rivera)
- Summarized by Bodie Colwell , Preti Flaherty, LLP
- 10 years 3 months ago
- Rivera v. ASUME (In re Rivera), No. 12-00341-ESL (B.A.P. 1st Cir. Feb. 19, 2013).
- The B.A.P. AFFIRMED the denial of the U.S. Bankruptcy Court for the District of Puerto Rico (the "Bankruptcy Court") for relief from the order dismissing the debtor's chapter 13 case and prohibiting him from filing another case for 18 months.
- Procedural context:
- The debtor, Rivera, appealed the Bankruptcy Court's order denying his request for relief from an order dismissing his chapter 13 case and prohibiting him from filing another case for 18 months.
- In January 2012, the debtor filed his third petition for chapter 13 relief. The prior two petitions had been dismissed after confirmation because of failure to make child support payments. ASUME, the agency that enforces child support obligations in Puerto Rico, filed a proof of claim in the third case for outstanding child support as a domestic support obligation. After the debtor failed to file past due state and federal tax returns, supply the trustee with copies and furnishamended schedules to the trustee, the trustee moved to dismiss the case. Additionally, ASUME objected to confirmation of the plan because of the debtor's failure to make post-petition child support payments.
Following the confirmation hearing, the Bankruptcy Court entered an order stating: "Upon debtor’s failure to appear at this hearing, failure to file tax returns as required by section 1308, failure to make any post-petition DSO payments, and debtor being a repeat filer, the case is hereby dismissed with a bar to refiling for a period of eighteen (18) months.”
After the appeal period lapsed, the debtor asked the Bankruptcy Court to reconsider the order under Federal Rule of Civil Procedure 60(b)(1) and (6). ASUME opposed the debtor's request for reconsideration. The Bankruptcy entered an order denying the request for reconsideration and stated that the court agreed with the opposition by ASUME.
On appeal, the B.A.P. found that it lacked jurisdiction to review the order dismissing the chapter 13 case as the debtor failed to file a notice of appeal from the dismissal order within 14 days of the entry of that order as required by Federal Rule of Bankruptcy Procedure 8002(a) and the notice of appeal filed by the debtor related exclusively to the order denying Rule 60(b) relief. Next, the B.A.P. found that the Bankruptcy Court did not abuse its discretion in denying relief under Rule 60(b)(1) and (6) as the debtor provided no basis for excusable neglect under Rule 60(b)(1) and waived the issue of relief under Rule 60(b)(6).
- Hillman, Boroff, and Kornreich
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