In re Higol Teran Racamonde

526 B.R. 89, 2015 Bankr. LEXIS 692, 2015 WL 1025936
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedMarch 6, 2015
DocketCASE NO. 14-09359 (ESL)
StatusPublished

This text of 526 B.R. 89 (In re Higol Teran Racamonde) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Higol Teran Racamonde, 526 B.R. 89, 2015 Bankr. LEXIS 692, 2015 WL 1025936 (prb 2015).

Opinion

OPINION AND ORDER

' ENRIQUE S. LAMOUTTE INCLAN, Bankruptcy Judge

This case is before the court upon the Debtor’s Motion to Vacate and Set Aside Motion Dismissing Case and Reconsideration of Order Denying Said Request1 (the “Motion for Reconsideration ”, Docket No. 27) and the Urgent Motion in Support of Motion for Reconsideration (the “Urgent Motion ”, Docket No. 2,8). All of the Debtor’s motions in the instant case were filed by Attorney Armando A. Cardona.

The Urgent Motion does not comply with the procedural or substantive requirements of PR LBR 9013-l(a): it does not contain the required certification in LBR 9013-l(a)(l)(A)-(C) nor does it describe the nature of the urgency. It also contains a 10-day objection language, which renders any urgency moot. Therefore, the Urgent Motion is hereby denied as urgent under PR LBR 9013-l(a), and instead will only be considered as a supplement to the Motion for Reconsideration2.

The Debtor alleges as follows:

[T]he debtor’s failure to timely file the Schedules, Statement of Financial Affairs and Means Test Calculation Statement was due to confusion, inadvertence or excusable neglect in that an Extension to file said papers was requested by Motion dated November 30, 2014 (docket No. 12) and an Order granting said extension was entered by this Honorable Court on December 1, 2014 (docket No. 13), which [ ] stated [ ] as follows: “Debtor’s(s’) motion for extension of time to file schedules and statements (docket entry # 12) is hereby granted, but limited to twenty one (21) days or seven (7) days prior to the Meeting of Creditors under Section 341 of the Bankruptcy Code, whichever is shorter.” [ ] (docket No. 13); that the Meeting of Creditors was continued to January 15, 2015 at 1:30 P.M. (docket No. 16), which gave rise to a misunderstanding that debtor had until January 8, 2015 (i.e. seven (7) days prior to the (continued) Meeting of Creditors) to file the Sched-' ules, Statement of Financial Affairs and Means Test Calculation Statement; and that debtor was engaged in talks with secured creditor Firstbank for the voluntary surrender of a vacation home located in Rio Grande, Puerto Rico (Casa del Mar Walk-Up apartments) which was being foreclosed in Puerto Rico Superior Court and counsel for Firstbank stated as late as December 23, 2014 that said creditor had still not approved the referenced transaction (voluntary surrender), which added to debtor’s confusion, given the impression, in debtor’s mind, that debtor had to wait for Firstbank’s decision whether First-bank would accept or not the voluntary [91]*91surrender of the referenced property before filing the Schedules.
Motion for Reconsideration, Docket No. 27, p. 1, ¶3._

Although the Debtor did not denominate any rule as the springboard for this Motion for Reconsideration, because it was filed 18 days after the entry of the Order (Docket No. 23) and is grounded on “inadvertence” and “excusable neglect”, it will be considered under Fed. R. Civ. P. 60(b)(1), applicable in bankruptcy proceedings through Fed. R. Bankr. P. 9024.

Fed. R. Civ. P. 60(b) seeks to balance the interest in the stability of judgments and orders with the interest in seeing they do not become instruments of oppression and fraud. See Alan N. Res-nick and Henry J. Sommer, 10 Collier on Bankruptcy ¶ 9024.03 (16th ed.2015). Hence, “the court may relieve a party ... from a final judgment, order, or proceedings for ... mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). “[R]elief under Rule 60(b) is extraordinary in nature and [] motions invoking that rule should be granted sparingly.” Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.2002).

In Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court ruled that the determination of what constitutes “excusable neglect” is an equitable one, taking into consideration the following factors: (1) the length of the delay and its potential impact on judicial proceedings; (2) the reason for the delay, including whether it was within the reasonable control of the movant; (3) whether the movant acted in good faith; and (4) whether granting the relief will prejudice the opposing party. The Supreme Court concluded that “excusable neglect” is a flexible concept that is not limited to circumstances beyond the control of the movant. Id. at 388, 113 S.Ct.. 1489. Prior to the Supreme Court’s decision in Pioneer, the U.S. Court of Appeals for the First Circuit (the “First Circuit”) had ruled that Fed. R. Civ. P. 60(b) was a vehicle for extraordinary relief, and that motions invoking the rule should only be granted under exceptional circumstances. See Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.1986). Subsequently, in Pratt v. Philbrook, 109 F.3d 18 (1st Cir. 1997), the First Circuit incorporated the Pioneer doctrine and has sustained it ever since. See United States v. Union Bank for Sav. & Inv.(Jordan), 487 F.3d 8, 24 (1st Cir.2007); Aja v. Fitzgerald (In re Aja), 441 B.R. 173, 177 (1st Cir. BAP 2011) (upholding the Pioneer test). The most important factor in this test is the reason for the delay, which requires a statement of the reasons and a satisfactory explanation. See Graphic Communs. Int’l Union v. Quebecor Printing Providence, Inc., 270 F..3d 1, 6 (1st Cir.2001); EnvisioNet Computer Servs., Inc. v. ECS Funding LLC, 288 B.R. 163, 166 (D.Me.2002). No “excusable neglect” can be determined in the absence of unique or extraordinary circumstances. Fisher v. Kadant, Inc., 589 F.3d 505, 512 (1st Cir.2009); Haddock-Rivera v. ASUME, 486 B.R. 574, 578 (1st Cir. BAP 2013), citing Morse v. Earle (In re Earle), 2008 Bankr.LEXIS 3961, 2008 WL 8664763 (1st Cir. BAP 2008). Trial courts have wide discretion to determine the existence of neglect or lack thereof and whether it was excusable or not. See Graphic Communs. Int’l Union, 270 F.3d at 6-7; United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165 (1st Cir.2004) (“[Trial] courts enjoy considerable discretion in deciding motions brought under Civil Rule 60(b)”); In re Shepherds Hill Development Co., 316 B.R. 406, 418 (1st Cir. BAP 2004).

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Related

Edward H. Bohlin Co., Inc. v. Banning Co., Inc.
6 F.3d 350 (Fifth Circuit, 1993)
Pratt v. Philbrook
109 F.3d 18 (First Circuit, 1997)
Karak v. Bursaw Oil Corp.
288 F.3d 15 (First Circuit, 2002)
United States v. $23,000 in United States Currency
356 F.3d 157 (First Circuit, 2004)
Fisher v. Kadant, Inc.
589 F.3d 505 (First Circuit, 2009)
Donald Lepore v. Stuart Vidockler
792 F.2d 272 (First Circuit, 1986)
Aja v. Fitzgerald (In Re Aja)
441 B.R. 173 (First Circuit, 2011)
Rivera v. ASUME
486 B.R. 574 (First Circuit, 2013)
Ithier v. Cadillac Industries Inc.
199 F.R.D. 39 (D. Puerto Rico, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
526 B.R. 89, 2015 Bankr. LEXIS 692, 2015 WL 1025936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-higol-teran-racamonde-prb-2015.