In re Schulze

560 B.R. 303, 2016 Bankr. LEXIS 4387, 2016 WL 6407358

Opinion

ORDER DENYING DEBTOR’S MOTION FOR RELIEF FROM ORDER COMPELLING DEBTOR TO TURN OVER PROPERTY OF THE ESTATE, AND CANCELLING JULY 6, 2016 HEARING

Thomas J. Tucker, United States Bankruptcy Judge

This case is before the Court on the motion filed by the Debtor, Mark J. Schul-ze, entitled “Motion for Relief from Order Compelling Debtor to Turn Over Property of the Estate” (Docket #31, the “Motion”). The Chapter 7 Trustee filed an objection to the Motion, and the Motion is currently scheduled for a hearing to be held on July 6, 2016 at 9:00 a.m.

For the following reasons, the Court concludes that a hearing on the Motion is not necessary, and that the Motion must be denied.

The Motion seeks relief under Fed. R. Civ. P. 60(b)(1), applicable in this bankruptcy ease under Fed. R. Bankr. P. 9024, from the order entered on October 21, 2015, entitled “Order Compelling Debtor to Turn Over Property of the Estate” (Docket # 24, the “Turnover Order”).¹ The Motion seeks relief under Civil Rule 60(b)(l)’s “mistake” provision, based on the Debtor’s argument that this Court committed legal error when it entered the Turnover Order.

Under binding Sixth Circuit authority, such Motion had to be filed no later than the deadline for an appeal from the Turnover Order. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 133 (6th Cir. 2007); Pierce v. United Mine Workers of America Welfare and Ret. Fund for 1950 and 1974, 770 F.2d 449, 451-52 (6th Cir. 1985), cert. denied, 474 U.S. 1104, 106 S.Ct. 890, 88 L.Ed.2d 925 (1986); Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir. 1983).

In this case, the deadline for filing a notice of appeal from the October 21, 2015 Turnover Order was November 4, 2015, 14 days after the entry of the Turnover Order. See Fed. R. Bankr. P. 8002(a)(1). But the Motion was not filed until May 25, 2016, more than six months after the time for appeal expired. For this reason, under the Sixth Circuit eases cited above, this Court must deny the Motion as untimely.

For these reasons,

IT IS ORDERED that:

1. The Motion (Docket # 31) is denied.

2. The hearing scheduled for July 6, 2016 at 9:00 a.m. is cancelled, as no longer necessary.

Footnotes

1

. The Turnover Order was entered after the Debtor failed to timely file any objection or response to the Trustee’s motion seeking such order (Docket # 20), and after the Trustee filed a Certificate of Non-Response (Docket #23).