In re Madison Heights Group, LLC

506 B.R. 734, 2014 WL 1075809, 2014 Bankr. LEXIS 1103
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedMarch 17, 2014
DocketNo. 13-58587
StatusPublished
Cited by8 cases

This text of 506 B.R. 734 (In re Madison Heights Group, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Madison Heights Group, LLC, 506 B.R. 734, 2014 WL 1075809, 2014 Bankr. LEXIS 1103 (Mich. 2014).

Opinion

[736]*736OPINION REGARDING DEBTOR’S MOTION FOR RECONSIDERATION

THOMAS J. TUCKER, Bankruptcy Judge.

This case is before the Court on the Debtor’s motion entitled “Motion for Reconsideration,” filed November 12, 2013 (Docket # 37, the “Motion”), which seeks reconsideration of, and relief from, two orders the Court entered in this case on October 29, 2013: (1) the Order entitled “Order Denying Debtor’s Motion for Use of Cash Collateral” (Docket # 33); and (2) the Order entitled “Order Granting Creditor’s Motion to Dismiss this Case, With a 180-Day Bar to Refiling” (Docket #35). For the reasons stated in this opinion, the Motion will be denied.

I. The Court’s general conclusions

The Court finds that the Motion fails to demonstrate a palpable defect by which the Court and the parties have been misled, and that a different disposition must result from a correction thereof. See L.B.R. 9024-l(a)(3) (E.D. Mich.).

In addition, the Court finds that the allegations and arguments in the Motion do not establish any valid ground for relief from either of the orders at issue, under Fed.R.Civ.P. 60(b), applicable under Fed. R.Bankr.P. 9024; or under Fed.R.Civ.P. 59(e), applicable under Fed.R.Bankr.P. 9023; or otherwise.

In addition, the Court notes the following.

II. Discussion of specific issues

A. Debtor waived its reconsideration arguments

The Debtor waived every argument that Debtor makes in the Motion, because Debtor makes these arguments for the first time in a motion for reconsideration. Debtor waived these arguments by failing to make them before the Court ruled on the motions and entered the two October 29 Orders. See, e.g., Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd), 486 F.3d 940, 947 (6th Cir.2007) (citing with approval, and applying, Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994) for the proposition that “objections raised for the first time in a reconsideration motion are deemed to have been waived”); Evanston Ins. Co. v. Cogswell Props., LLC, 683 F.3d 684, 692 (6th Cir.2012) (citations omitted) (“Arguments raised for the first time in a motion for reconsideration are untimely and forfeited on appeal.”).1

B. Debtor’s arguments are without merit in any event

Debtor’s arguments are without merit, in any event.

1. There was no “contested” or “open” question of fact

Debtor’s first argument is that “[whether CB 2011 effected service on the Debt- [737]*737or’s tenants remained an open question at the close of the [October 23, 2013] hearing.” 2 And, Debtor now argues, “[whether or not the Debtor[’s] tenants were served notice of the Assignment of Rents is a contested question of fact that affects the status of rents.3 Debtor is incorrect. This was not “an open question at the close of the hearing,” nor was it “a contested question of fact.” Rather, it was clear from the written argument filed by Debtor in support of its cash collateral motion, and from the oral argument of Debtor’s counsel at the October 23, 2013 hearing, that while the Debtor could not affirmatively admit that all of the tenants actually received service of the recorded notice of default and the instrument creating the Assignment of Rents, Debtor was not arguing that one or more of the tenants did not receive service. Debtor made only other arguments in support of Debt- or’s cash collateral motion and in opposition to CB 201 l’s argument that the Debt- or had no interest in rents, due to the Assignment of Rents. Debtor expressly chose not to contest CB 201 l’s allegation that it served the tenants with the required notice pre-petition.

In the Court’s October 29, 2013 Opinion (Docket # 32), the Court stated the following:

CB 2011 says, with supporting exhibits, and Debtor is unable to dispute, that well before the filing of Debtor’s bankruptcy petition in this case, each of the following five events occurred to perfect and enforce the Assignment of Rents:
(1)Execution of the Assignment of Rents;
(2) Recording of the Assignment of Rents;
(3) Default under the Mortgage;
(4) Recording of Notice of Default; and
(5) Service of the Recorded Notice of Default and the instrument creating the Assignment of Rents upon the tenants.
[Footnote 5 of the Court’s opinion:]
CB 2011 Objection (Docket #28) at 2; Ex. B to Docket # 28. During the October 23 hearing, Debtor’s counsel stated that the Debtor does not dispute that all of these things occurred prepetition, except that Debtor’s counsel could not then admit that the notice of default was served upon all of the tenants, because some of the tenants continued to pay rent to the Debtor, rather than paying the rent to CB 2011. Debtor’s counsel said that this suggests that some of the tenants might not have actually received the notice of default from CB 2011. But Debtor’s counsel also said that he did not know this to be the case.
[continued text of the opinion:]
Under Michigan law, based upon the Michigan statute regarding the assignment of rents and case law, the above five steps are required in order for a creditor to obtain “complete enforcement of an assignment of rents.” 4

Before the Court held the hearing on October 23, 2013, and in response to CB 2011’s objection to Debtor’s cash collateral motion, Debtor filed a written response to CB 201 l’s arguments about the Assignment of Rents. In that written brief, filed October 22, 2013, Debtor did not dispute CB 201 l’s allegation that pre-petition, CB [738]*7382011 had taken all five steps necessary under Michigan law to enforce its Assignment of Rents, including serving all of the Debtor’s tenants with the recorded notice of default and the instrument creating the Assignment of Rents. CB 2011 had specifically alleged this, in its October 22, 2013 objection to Debtor’s cash collateral motion.5 Debtor’s written response to CB 2011’s objection did not dispute this, but rather argued, only for certain other reasons, that the Debtor’s rental income is cash collateral that it could use during the bankruptcy case.6

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Cite This Page — Counsel Stack

Bluebook (online)
506 B.R. 734, 2014 WL 1075809, 2014 Bankr. LEXIS 1103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-madison-heights-group-llc-mieb-2014.