In re: Edgart F. Gonzalez

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 2, 2012
• Docket: CC-11-1162-MkCaPa
• Status: Unpublished

Opinion

FILED FEB 02 2012 1 SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-11-1162-MkCaPa ) 6 EDGART F. GONZALEZ, ) Bk. No. 08-16921-ER ) 7 Debtor. ) Adv. No. 08-01756-ER ) 8 ) EDGART F. GONZALEZ, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) AURORA LOAN SERVICES LLC, ) 12 ) Appellee. ) 13 ) 14 Submitted without Oral Argument on January 19, 2012, at Pasadena, California** 15 Filed - February 2, 2012 16 Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Ernest M. Robles, Bankruptcy Judge, Presiding 19 20 21 * This disposition is not appropriate for publication. 22 Although it may be cited for whatever persuasive value it may 23 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 24 ** This appeal was originally set for oral argument on 25 January 19, 2012. On the eve of oral argument, Appellant advised the Panel in writing that he intended to submit his position on 26 his brief. He then did not appear at oral argument. At the time scheduled for oral argument, Brian A. Paino of Pite Duncan, LLP 27 appeared on behalf of Appellee Aurora Loan Services LLC, but did 28 not argue.

1 1 Before: MARKELL, CASE,*** and PAPPAS, Bankruptcy Judges. 2 INTRODUCTION 3 Chapter 71 debtor Edgart F. Gonzalez (“Gonzalez”) appeals 4 the bankruptcy court’s order expunging a lis pendens recorded2 in 5 connection with an adversary proceeding in his bankruptcy case. 6 He also appeals the bankruptcy court’s order denying his motion 7 for reconsideration. We AFFIRM. 8 FACTS3 9 The Wave Property 10 On March 21, 2006, Gonzalez obtained a loan from Homecomings 11 *** The Honorable Charles G. Case, II, United States 12 Bankruptcy Judge for the District of Arizona, sitting by 13 designation. 1 14 Unless specified otherwise, all “Chapter” and “Section” references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 15 “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, all “Civil Rule” references are to 16 the Federal Rules of Civil Procedure, Rules 1-86, and all 17 “Evidence Rule” references are to the Federal Rules of Evidence, Rules 101-1103. 18 2 Neither party included a copy of the recorded lis pendens 19 in its excerpts of record. The parties also devoted significant portions of their briefs and their excerpts of record to issues 20 we have previously disposed of. Accordingly, we have exercised 21 our discretion to independently review the bankruptcy court’s electronic docket, and the imaged documents attached thereto. 22 See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase Manhattan 23 Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 24 3 25 In one of Gonzalez’s previous appeals, we issued a memorandum decision that contains a more extensive discussion of 26 the facts relating to Gonzalez’s bankruptcy case and the adversary proceeding from which this appeal arises. Gonzalez v. 27 HSBC USA Nat’l Ass’n, No. CC-10-1054 (9th Cir. BAP Oct. 20, 2010). We include here only those facts which directly pertain 28 to the issues properly before this Panel.

2 1 Financial (“Homecomings”), secured by a first deed of trust 2 against real property located in Laguna Beach, CA (the “Wave 3 Property”). Homecomings Financial Network, Inc. (“Homecomings”) 4 was the lender and Mortgage Electronic Registration Systems, Inc. 5 (“MERS”) was named as the beneficiary under the deed of trust. 6 The Bankruptcy Case 7 Acting pro se,4 Gonzalez filed a Chapter 7 bankruptcy 8 petition on May 19, 2008. He listed an ownership interest in the 9 Wave Property on his schedule A. On July 22, 2008, Aurora Loan 10 Services LLC (“Aurora”), as servicing agent for MERS, moved for 11 relief from stay as to the Wave Property. After a hearing, the 12 bankruptcy court granted the motion. Gonzalez attempted to 13 appeal that relief from stay order to this Panel. The Panel 14 dismissed that untimely appeal for lack of jurisdiction. Order 15 Dismissing Appeal for Lack of Jurisdiction, Gonzalez v. Aurora 16 Loan Services, No. CC-10-1079 (9th Cir. BAP May 13, 2010). 17 Gonzalez’s attempted appeal of that order to the Ninth Circuit 18 was also untimely and dismissed for lack of jurisdiction. Order, 19 Gonzalez v. Aurora Loan Services, No. 11-60034 (9th Cir. June 29, 20 2011). 21 The Adversary Proceeding 22 Still acting pro se5, Gonzalez filed a verified complaint 23 (the “Verified Complaint”) on September 16, 2008. In the 24 Verified Complaint Gonzalez objected to secured claims against 25 4 26 Jerome Edelman (“Edelman”) substituted in as counsel in the bankruptcy case on July 24, 2008. 27 5 Edelman did not substitute in as counsel in the adversary 28 proceeding until April 2, 2009.

3 1 various lenders, including Aurora; Gonzalez also asserted a 2 variety of claims, including (1) misrepresentation, (2) breach of 3 contract, (3) violation of California law, (4-5) failure to 4 timely provide the Truth in Lending Act (“TILA”), 15 U.S.C. 5 § 1635, disclosure statements and notices of right to rescind, 6 (6) failure to disclose broker fees as finance charges, 7 (7) failure to disclose appraisal fees as finance charges, 8 (8) unreasonable and non-bona fide document preparation charges, 9 (9-10) unreasonable and non-bona fide recording and title 10 charges, (11-12) lenders inaccurate material disclosures, 11 (13) failure to honor debtor’s rescission notice, (14-17) fraud 12 for standing and/or subject-matter jurisdiction on: relief from 13 the automatic stay, the foreclosure, the trustee sale, and the 14 eviction proceedings, and (18) preclusion of trustee sale. 15 Among the relief sought in the Verified Complaint was: 16 -a declaration “that the plaintiff has validly rescinded the 17 transactions, that the defendant’s security interests are 18 therefore void and the defendant’s secured claims are 19 disallowed”; 20 -a declaration “that the defendant’s failure to honor the 21 plaintiff’s valid rescission notice in accordance with the 22 dictates of 15 U.S.C. § 1635 and California Law vests in the 23 plaintiff the right to retain the net loan proceeds and that the 24 defendants have no allowable unsecured claims”; 25 -“an order discharging the defendant’s second deeds of 26 trust”; 27 -“an order requiring the defendants to refund to the 28 plaintiff all money paid to the defendants in connection with the

4 1 transactions”; 2 -damages and reasonable attorney’s fees and costs; and 3 -cancellation of judgments against the properties and any 4 action for any relief, foreclosure, sale, or eviction. Verified 5 Compl. ¶ 125. 6 On January 21, 2009, Gonzalez filed a first amended verified 7 complaint (the “Amended Complaint”). In the Amended Complaint, 8 Gonzalez objected to secured claims, reasserted his previous 9 causes of action, and prayed for relief similar to that requested 10 in the first complaint.6 11 Aurora moved to dismiss the adversary proceeding,7 12 challenging Gonzalez’s standing, the bankruptcy court’s subject- 13 matter jurisdiction, the sufficiency of Gonzalez’s claims under 14 Civil Rule 12(b)(6), and the adequacy of service of process. 15 After a hearing, the bankruptcy court granted Aurora’s motion, 16 concluding that dismissal was warranted for insufficient service 17 of process, and that even if Gonzalez had properly served the 18 defendants, dismissal was appropriate for failure to state a 19 claim upon which relief could be granted. 20 Gonzalez timely appealed the bankruptcy court’s orders of 21 dismissal as to all defendants. We affirmed. Gonzalez v. HSBC 22 USA Nat’l Ass’n, No. CC-10-1054 (9th Cir. BAP Oct. 20, 2010). 23 24 6 In particular, the relief sought in Amended Complaint included a request that the bankruptcy court “refer th[e] matter 25 for changes in the rules of civil procedure.” Amended Compl. 26 ¶ 125. 7 27 Other defendants also moved to dismiss Gonzalez’s complaint, and the bankruptcy court eventually dismissed the 28 adversary proceeding as against all defendants.

5 1 This Panel also denied Gonzalez’s motion for rehearing. Order 2 Denying Motion for Reconsideration and Request for Judicial 3 Notice, Gonzalez v. HSBC USA Nat’l Ass’n, No. CC-10-1054 (9th 4 Cir. BAP Nov. 9, 2010). Gonzalez has since appealed the Panel’s 5 decision to affirm the bankruptcy court’s order of dismissal to 6 the Ninth Circuit. Gonzalez v. HSBC USA Nat’l Ass’n, No. 11- 7 60027. That appeal is still pending. 8 The Lis Pendens 9 On June 23, 2009, Gonzalez filed a “Request for Hearing, 10 Notice of Motion and Motion to Sign Court Aproval [sic] for Lis 11 Pendens Filing on Real Estate Properties” (the “Lis Pendens 12 Motion”). The bankruptcy court granted the Lis Pendens Motion in 13 part, and denied it, in part. In the order, the bankruptcy court 14 instructed Gonzalez to re-lodge notices of pendency of action, 15 naming only those defendants as to which the bankruptcy court had 16 not already dismissed Gonzalez’s complaint.8 17 On September 18, 2009, Gonzalez re-filed a notice of 18 pendency of action, naming EMC Mortgage, Home Capital Funding, 19 First American Loan, Quality Loan, and MERS as defendants in the 20 pending adversary proceeding. The bankruptcy court approved the 21 8 As of the date of the Lis Pendens Motion, the bankruptcy 22 court had dismissed the adversary proceeding as against U.S. 23 Bancorp, HSBC Bank USA National Association, Wells Fargo Home Mortgage, Aurora, National City Bank, Residential Services 24 Validation Publications, Homecomings Financial, Mandalay Mortgage LLC, and ETS LLC. The only remaining defendants were EMC 25 Mortgage Corporation (“EMC Mortgage”), Home Capital Funding 26 (“Home Capital”), First American Title Insurance Company - First American Loanstar Trustee Services (“First American”), National 27 City, Quality Loan Service Corporation (“Quality Loan”), and MERS. The adversary proceeding was subsequently dismissed as to 28 these remaining defendants.

6 1 notice for recordation on September 29, 2009. The notice was 2 recorded against the Wave Property on October 6, 2009 (the “Lis 3 Pendens”). 4 On January 14, 2011, Aurora moved to expunge the Lis 5 Pendens. Gonzalez opposed the motion, seeking mostly to 6 resurrect the claims he asserted in the Amended Complaint. The 7 bankruptcy court heard Aurora’s motion on March 1, 2011. 8 As he had in his opposition, Gonzalez made numerous 9 arguments at the hearing, arguments which the bankruptcy court 10 and this Panel have previously rejected. He argued that 11 established law required a party seeking foreclosure to be the 12 holder of the corresponding promissory note. He contended the 13 chain of title upon which the defendants based their claims 14 against, or interests in, the subject properties was defective. 15 He also raised the same issues of standing, subject matter 16 jurisdiction, fraud, and TILA violations that he had already 17 presented in his complaints. 18 At the conclusion of the hearing, the bankruptcy court 19 rejected Gonzalez’s arguments and adopted its tentative ruling: 20 In the instant case, there is a pending appeal before the Ninth Circuit. Notwithstanding, not only has Debtor lost 21 before this Court, the BAP has affirmed this Court’s decisions. Moreover, this Court has not been presented 22 with any arguments not already presented by Debtor which would lead it to conclude that the Ninth Circuit will 23 reverse the BAP and this Court. Consequently, based on Mix, the Court grants the Motion and expunges the lis 24 pendens recorded against the Property. 25 Bk. Dkt. No. 278. The bankruptcy court entered the order 26 expunging the Lis Pendens on March 16, 2011. 27 Gonzalez moved for reconsideration (the “Motion for 28 Reconsideration”) of order expunging the Lis Pendens under Civil

7 1 Rule 60(b). In the motion, Gonzalez again presented the same 2 arguments as before, challenging the bankruptcy court’s subject 3 matter jurisdiction, raising issues of standing, reasserting his 4 various TILA claims, reiterating the supposed California law that 5 requires the party seeking foreclosure against a property to be 6 the holder of the corresponding promissory note, and praying that 7 the bankruptcy court “overrule the dismissal of the amended 8 complaint against all defendants.” Pl.’s Mot. for 9 Reconsideration at 25. In short, Gonzalez’s Motion for 10 Reconsideration did not introduce anything he had not already 11 attempted to litigate. 12 Treating Gonzalez’s Motion for Reconsideration as one to 13 alter or amend judgment under Civil Rule 59(e), made applicable 14 to adversary proceedings by Rule 9023, the bankruptcy court 15 denied the motion. The bankruptcy court determined that 16 reconsideration would be inappropriate, as Gonzalez had merely 17 restated the same arguments the bankruptcy court had previously 18 rejected, failed to establish any manifest error of fact or law, 19 and did not offer newly discovered evidence. 20 Gonzalez timely appealed the bankruptcy court’s order 21 expunging the Lis Pendens and the bankruptcy court’s order 22 denying reconsideration.9 23 JURISDICTION 24 The bankruptcy court had jurisdiction under 28 U.S.C. 25 26 9 The bankruptcy court entered its order expunging the Lis 27 Pendens on March 16, 2011 and its order denying Gonzalez’s motion for reconsideration on March 18, 2011. Gonzalez filed a timely 28 notice of appeal on April 1, 2011. See Rule 8002(b).

8 1 §§ 1334 and 157(b)(1). We address our jurisdiction under 28 2 U.S.C. § 158 below. 3 ISSUES 4 1. Does the Panel have jurisdiction over this appeal? 5 2. Did the bankruptcy court err when it granted Aurora’s 6 motion to expunge the Lis Pendens? 7 3. Did the bankruptcy court abuse its discretion when it 8 denied Gonzalez’s Motion for Reconsideration? 9 STANDARDS OF REVIEW 10 When there is a question as to our jurisdiction, we are 11 entitled to raise that issue sua sponte and address it de novo. 12 Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682, 687 13 (9th Cir. BAP 2010) (citing Menk v. Lapaglia (In re Menk), 14 241 B.R. 896, 903 (9th Cir. BAP 1999)). 15 We review a bankruptcy court’s order to expunge a lis 16 pendens for abuse of discretion. Weston v. Rodriguez, 110 B.R. 17 452, 460 (E.D. Cal. 1989) (citations omitted), aff’d, 967 F.2d 18 596 (9th Cir. 1992) (unpublished table decision). 19 We apply the same standard of review to a bankruptcy court’s 20 ruling on a motion to alter or amend judgment. Arrow Elecs., 21 Inc. v. Justus (In re Kaypro), 218 F.3d 1070, 1077 (9th Cir. 22 2000). 23 The abuse of discretion standard has two prongs: “first, 24 whether the court applied the correct legal standard; and second, 25 whether the factual findings supporting the legal analysis were 26 clearly erroneous.” Veal v. Am. Home Mortg. Servicing (In re 27 Veal), 450 B.R. 897, 915 (9th Cir. BAP 2011) (citing United 28 States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en

9 1 banc)). Where a bankruptcy court has failed to apply the correct 2 legal standard, “it has ‘necessarily abuse[d] its discretion.’” 3 Id. (citing Hinkson, 585 F.3d at 1261-63) (modifications in 4 original). We review this prong of the analysis de novo. Id. 5 Where a bankruptcy court has applied the correct legal standard, 6 “the inquiry then moves to whether the factual findings made were 7 clearly erroneous.” Id. (citing Hinkson, 585 F.3d at 1262). A 8 bankruptcy court’s findings of fact are clearly erroneous if they 9 are “‘illogical, implausible, or without support in inferences 10 that may be drawn from the record.’” Id. (citing Hinkson, 11 585 F.3d at 1263). See also Rule 8013. 12 DISCUSSION 13 A. The order expunging the Lis Pendens. 14 1. Jurisdictional issues. 15 Appellate courts have jurisdiction over appeals from final 16 orders. 28 U.S.C. § 158. “A disposition is final if it contains 17 a complete adjudication, that is, a full adjudication of the 18 issues at bar, and clearly evidences the judge’s intention that 19 it be the court’s final act in the matter.” Slimick v. Silva 20 (In re Slimick), 928 F.2d 304, 307 (9th Cir. 1990) (internal 21 citations and quotations omitted). This standard varies slightly 22 in bankruptcy proceedings, where a complete act of adjudication 23 need not end the entire case, but only “end any of the interim 24 disputes from which the appeal would lie.” Id. at 307 n.1 25 (citations omitted). In bankruptcy cases, then, an order may be 26 considered final if it (a) resolves and seriously affects 27 substantive rights and (b) finally determines the discrete issue 28 as to which the order relates. Bonham v. Compton (In re Bonham),

10 1 229 F.3d 750, 761 (9th Cir. 2000) (citations omitted). 2 On appeal, Aurora offers several arguments as to this 3 Panel’s jurisdiction over this appeal. First, Aurora contends 4 that we lack jurisdiction because the order expunging the Lis 5 Pendens is an interlocutory order and thus unappealable, being 6 neither a final order nor a collateral order. Second, Aurora 7 asserts that we lack jurisdiction because Gonzalez did not file 8 for leave to appeal an interlocutory order. Last, Aurora asserts 9 that Gonzalez did not comply with California’s requirements for 10 seeking review of an expungement order. 11 We agree with Aurora in that an order expunging a lis 12 pendens is typically interlocutory and therefore unappealable, as 13 it requires us to assess the merits of the underlying claim. 14 See Orange County v. Hongkong & Shanghai Banking Corp. Ltd., 15 52 F.3d 821, 823 (9th Cir. 1995); Pac. Horizons, Inc. v. Erickson 16 (In re Pac. Horizons, Inc.), 37 B.R. 653, 655 (9th Cir. BAP 17 1984). Here, however, the bankruptcy court’s order fully 18 determined Gonzalez’s right to maintain the recorded Lis Pendens 19 as the underlying adversary proceeding had been dismissed. 20 For this reason, we have jurisdiction under 28 U.S.C. § 158 21 to address the merits.10 22 2. The merits. 23 Under California law, “a court shall order that the notice 24 [of pendency of action] be expunged if the court finds that the 25 claimant has not established by a preponderance of the evidence 26 27 10 Accordingly, we need not address Aurora’s remaining 28 arguments on this issue.

11 1 the probable validity of the real property claim.” Cal. Civ. 2 Proc. Code § 405.32. See also Cal. Civ. Proc. Code § 405.30 3 (claimant bears the burden of proof under section 405.32). The 4 statute “requires the court to evaluate the merits of the 5 underlying claim.” Orange County, 52 F.3d at 824. Where a 6 “claimant loses at trial, the lis pendens must be expunged unless 7 the trial court is willing to find that the probabilities are 8 that its own decision will be reversed on appeal.” Mix v. 9 Superior Ct., 124 Cal. App. 4th 987, 996 (2004). 10 Correctly applying California law, the bankruptcy court 11 found that the probabilities did not weigh in favor of a reversal 12 of its decision on appeal. Observing the law of the case, the 13 bankruptcy court properly based its finding on its order 14 dismissing the adversary proceeding and this Panel’s decision to 15 affirm that order. 16 On appeal, Gonzalez nonetheless argues that he established 17 the probable validity of a real property claim as required by 18 California law. We disagree. 19 As was the bankruptcy court, we are bound by the law of the 20 case. See Minidoka Irrigation Dist. v. Dep’t of Interior, 21 406 F.3d 567, 573 (9th Cir. 2005) (“Under the law of the case 22 doctrine, a court is ordinarily precluded from reexamining an 23 issue previously decided by the same court, or a higher court, in 24 the same case.”) (internal citations and quotations omitted).11 25 11 26 There are three exceptions to the law of the case doctrine: “(1) the decision is clearly erroneous and its 27 enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or 28 (continued...)

12 1 Given that we have affirmed the bankruptcy court’s dismissal of 2 the adversary proceeding in which Gonzalez asserted claims 3 relating to the Wave Property, we are neither in a position to 4 revisit our previous decision nor to disturb the bankruptcy 5 court’s findings here. Thus, we may not reassess the viability 6 of Gonzalez’s claims, an issue as to which he must have 7 established a probable validity in order to prevail on Aurora’s 8 motion to expunge the Lis Pendens, because the bankruptcy court 9 and this Panel have already determined that he has no claims. 10 We also note that the bankruptcy court’s dismissal of the 11 adversary proceeding alone would have rendered the Lis Pendens 12 ineffective. See 3 Witkin, Cal. Proc. 5th, Actions, § 388[7] 13 (2010) (“The lis pendens is incidental to the action in which it 14 is filed . . . .”). The Lis Pendens referenced the adversary 15 proceeding which named EMC Mortgage, Home Capital Funding, First 16 American Loan, Quality Loan, and MERS as defendants. The 17 bankruptcy court dismissed the adversary proceeding not only as 18 to those defendants, but as to all defendants. Upon dismissal of 19 the adversary proceeding, then, there was no underlying action as 20 to which the Lis Pendens could relate. 21 11 (...continued) 22 (3) substantially different evidence was adduced at a subsequent 23 trial.” Minidoka Irrigation Dist., 406 F.3d at 573 (internal citations and quotations omitted). Gonzalez has waived the 24 argument that any of these exceptions apply, as the record does not show that he properly raised any such argument before the 25 bankruptcy court. See Ellsworth v. Lifescape Med. Assocs., P.C. 26 (In re Ellsworth), 455 B.R. 904, 919 (9th Cir. BAP 2011) (citing Golden v. Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 27 (9th Cir. BAP 2002); Branam v. Crowder (In re Branam), 226 B.R. 45, 55 (9th Cir. BAP 1998), aff'd, 205 F.3d 1350 (unpublished 28 table decision) (9th Cir. 1999)).

13 1 For these reasons, we conclude that the bankruptcy court 2 properly granted Aurora’s motion to expunge the Lis Pendens. The 3 bankruptcy court applied the correct legal standard and its 4 findings of fact were not illogical, implausible, or without 5 support from the record. 6 B. The order denying the motion for reconsideration. 7 1. The bankruptcy court applied the correct legal 8 standard. 9 The Civil Rules do not “recognize a motion for 10 reconsideration.” Captain Blythers, Inc. v. Thompson (In re 11 Captain Blythers, Inc.), 311 B.R. 530, 539 (9th Cir. BAP 2004), 12 aff’d, 182 Fed. App’x 708 (9th Cir. 2006); In re Walker, 332 B.R. 13 820, 826 (Bankr. D. Nev. 2005). The Civil Rules, however, offer 14 two options to a party seeking post-judgment relief: a motion to 15 alter or amend judgment under Civil Rule 59(e), applicable to 16 bankruptcy proceedings by Rule 9023; and a motion for relief from 17 judgment under Civil Rule 60, applicable to bankruptcy 18 proceedings by Rule 9024. Walker, 332 B.R. at 826. 19 Where a party files a “motion for reconsideration” within 20 fourteen[12] days of the entry of judgment, the motion “is 21 treated as a motion to alter or amend judgment under [Civil Rule] 22 23 12 Civil Rule 59(e) applies to bankruptcy proceedings 24 pursuant to Rule 9023. Rule 9023 was amended in 2009, extending the time period for a motion to alter or amend judgment from ten 25 days to fourteen days. See Rule 9023 advisory committee’s note. 26 See also 10 Collier on Bankruptcy ¶ 9023.RH[2] (Henry J. Sommer & Alan N. Resnick, eds., 16th ed. 2011) (“Rule 9023 was amended to 27 provide for a 14-day deadline for motions for a new trial, motions to alter or amend a judgment, and for sua sponte action 28 by a bankruptcy court.”).

14 1 59(e).” Am. Ironworks & Erectors, Inc. N. Am. Constr. Corp., 2 248 F.3d 892, 898-99 (9th Cir. 2001) (citing United States v. 3 Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992)). See also 4 Walker, 332 B.R. at 826. A party may not use a motion for 5 reconsideration as a vehicle “to present a new legal theory for 6 the first time”; “to raise legal arguments which could have been 7 raised in connection with the original motion”; or “to rehash the 8 same arguments presented the first time or simply express the 9 opinion that the court was wrong.” Wall St. Plaza, LLC v. JSJF 10 Corp. (In re JSJF Corp.), 344 B.R. 94, 103 (9th Cir. BAP 2006), 11 aff’d and remanded, 277 Fed. App’x 718 (9th Cir. 2008). “The 12 standard for granting a motion to reconsider is strict in order 13 to preclude repetitive arguments that have already been fully 14 considered by the court.” Id. 15 A court may grant a motion to alter or amend judgment under 16 Civil Rule 59(e) where the moving party has established 17 “(1) manifest error of fact, (2) manifest error of law, or 18 (3) newly discovered evidence.” Hale v. U.S. Trustee (In re 19 Basham), 208 B.R. 926, 934 (9th Cir. BAP 1997), aff’d, 152 F.3d 20 924 (9th Cir. 1998). 21 Here, Gonzalez filed the Motion for Reconsideration within 22 fourteen days of the bankruptcy court’s order expunging the Lis 23 Pendens. Accordingly, we conclude that the bankruptcy court 24 properly treated Gonzalez’s motion as one to alter or amend 25 judgment under Civil Rule 59(e), to be granted only upon a 26 showing of any of the grounds discussed above. 27 // 28 //

15 1 2. The bankruptcy court’s findings of fact were not 2 illogical, implausible, or without support from the 3 record. 4 The bankruptcy court found that Gonzalez failed to establish 5 any of the grounds warranting relief under Civil Rule 59(e). We 6 agree. 7 While Gonzalez wishes to resurrect the claims he asserted in 8 his complaints however possible, a motion for reconsideration is 9 not the proper means to that end. The record is replete with 10 examples of Gonzalez’s efforts to relitigate issues already 11 disposed of by the bankruptcy court and this Panel. But it is 12 devoid of any showing justifying relief under Civil Rule 59(e). 13 In his Motion for Reconsideration, Gonzalez merely rehashed 14 the same arguments he reiterated in the proceedings leading up to 15 this appeal. He challenged the bankruptcy court’s subject matter 16 jurisdiction, raised issues of standing, reasserted his various 17 TILA claims, argued that California law required the 18 corresponding promissory note in order for a party to proceed 19 with foreclosure against a property, and prayed that the 20 bankruptcy court “overrule the dismissal of the amended complaint 21 against all defendants.” Pl.’s Mot. for Reconsideration at 25. 22 This, however, does not justify relief under Civil 23 Rule 59(e), nor does it qualify Gonzalez’s filing as a proper 24 motion for reconsideration. See JSJF Corp., 344 B.R. at 103. 25 For this reason, we conclude that the bankruptcy court did not 26 abuse its discretion when it denied Gonzalez’s Motion for 27 Reconsideration. 28

16 1 CONCLUSION 2 For the reasons set forth above, we AFFIRM the bankruptcy 3 court’s order expunging the Lis Pendens and the bankruptcy 4 court’s order denying Gonzalez’s Motion for Reconsideration. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28