Lindsey v. Solutions Exchange, Inc. (In Re Lindsey)

178 B.R. 895, 1995 Bankr. LEXIS 191, 1995 WL 77974
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedFebruary 16, 1995
Docket17-64539
StatusPublished
Cited by5 cases

This text of 178 B.R. 895 (Lindsey v. Solutions Exchange, Inc. (In Re Lindsey)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindsey v. Solutions Exchange, Inc. (In Re Lindsey), 178 B.R. 895, 1995 Bankr. LEXIS 191, 1995 WL 77974 (Ga. 1995).

Opinion

ORDER

JOYCE BIHARY, Bankruptcy Judge.

This adversary proceeding is now in the post-judgment, post-appellate phase of litigation. The Court issued money judgments in plaintiffs favor on August 8, 1994 against three defendants. The judgment and an interlocutory order entered May 20, 1994 were appealed to the District Court and affirmed. The judgment was issued in plaintiffs favor as a result of the defendants D.A. Crossman & Associates, Inc. and Atlanta Fleet and Leasing, Inc.’s having willfully violated the automatic stay in bankruptcy under 11 U.S.C. § 362 by repossessing and disposing of plaintiffs leased automobile without seeking relief from the automatic stay. The judgment was entered against D.A. Cross-man & Associates, Inc. for $20,000.00 in punitive damages, against Atlanta Fleet and Leasing, Inc. for $1,000.00 in punitive damages, and against both of these defendants jointly and severally for $2,292.44 in actual damages. Finally, judgment was entered against defendant Solutions Exchange, Inc. in the amount of $462.25. Plaintiff has proceeded pro se throughout the case.

This matter is before the Court on two related pleadings filed by plaintiff. On January 31,1995, plaintiff filed a pleading entitled “Motion for Reconsideration” (“Motion for Reconsideration”) seeking, among other things, reconsideration of the Court’s Orders entered on January 24,1995, August 8, 1994, and May 20, 1994. On February 1, 1995, plaintiff filed a second pleading entitled “‘Emergency’ Motion in Support to Motion for Reconsideration” (“Emergency Motion”) in which plaintiff made several new requests, *898 including a request for oral argument on the Motion for Reconsideration. The Emergency Motion also contained an attachment entitled “Affidavit to Support Motion for Reconsideration and ‘Emergency’ Motion in Support to Motion for Reconsideration” (“Affidavit”). The Court has reviewed the Motion for Reconsideration, the Emergency Motion, the Affidavit, and the response filed by defendants Solutions Exchange, Inc. and D.A. Crossman, Inc., which was completely unresponsive, and concludes that oral argument is unnecessary.

A. Motion for Reconsideration of May 20, 1994 and August 8, 1994 Orders is Untimely.

Plaintiffs Motion for Reconsideration of the Orders entered August 8, 1994 and May 20, 1994, is untimely. LR 220-6, NDGa., made applicable to adversary proceedings by BLR 705-2, NDGa., requires that any motion for reconsideration be filed within ten (10) days after the entry of the order or judgment, and that parties shall not file motions to reconsider the Court’s denial of a prior motion for reconsideration. 1 The Motion for Reconsideration filed on January 81, 1995 was filed long after the entry of the May 20 and August 8, 1994 Orders and is denied. Furthermore, plaintiff had previously filed a request to modify and reconsider the August 8, 1994 Order and Judgment, which was denied on August 24,1994. Finally, both the May 20, 1994 Order and the August 8, 1994 Order were the subject of appeals, and both Orders were affirmed. (See Civil Action file No. l:94-cv-2335-JTC and Civil Action file No. l:94-ev-1677-ODE.)

B. Request to Modify the Writs of Execution is Denied.

The only motion to reconsider that is before the Court on a timely basis is the motion to reconsider the Order of January 24, 1995. This Order was a ruling on plaintiffs motion entitled “‘Emergency Motion’ for Enforcement of Order of Civil Contempt, Seizure of Person or Property and Sanction” (“Motion for Enforcement”), filed on January 11, 1995. The January 24, 1995 Order granted plaintiffs request for post-judgment interest and instructed plaintiff to obtain the writs of execution from the Clerk of the Bankruptcy Court. The other relief requested was denied.

The gravamen of the Motion for Reconsideration appears to be plaintiffs contention that one or more of the writs of execution are incorrect, as they do not include an amount of $7,000.00 originally referred to in the Order of May 20, 1994. The Court has reviewed the writs of execution, and the dollar amounts are correct. The May 20, 1994 Order stated that the evidentiary record was not clear on an amount sufficient to enable the plaintiff to make a down payment to enter into a new lease of a similar vehicle. The Order gave the parties five (5) days to file a pleading setting forth each party’s contention as to this component of damages and provided “If no pleadings are filed, the Court will set the amount at $7,000.00. If pleadings are filed regarding this component of the damage claim, the Court will schedule a hearing to consider evidence as to this point.” Within five (5) days, defendants filed a pleading addressing this issue entitled “Motion for Brief for Determination of Costs to Lease Per Order of Court”. The Court set a hearing for August 4,1994, on this issue. At that hearing, the Court provided the parties with oral findings of fact and conclusions of law on the record pursuant to Fed.R.Bankr.P. 7052, incorporating Fed.R.Civ.P. 52. The portion of the oral ruling relevant to this issue is as follows:

THE COURT: The hearing today was, as I stated at the outset, was for the limited purpose of reopening the record on the isolated issues mentioned in the June 21st order. At the conclusion of the trial in May, I awarded actual damages in several amounts that have not been challenged here, and those remain; and that’s the two thousand two hundred and thirty-three dollars and twenty-two cents ($2,233.22), the fourteen dollars and seventy-one cents *899 ($14.71), and the forty-four dollars and fifty-one cents ($44.51).
At that time, the evidentiary record wasn’t clear on what amount was sufficient to enable the Plaintiff to make a downpayment to enter into a new lease of a similar vehicle, and I left the record open to allow the parties to file pleadings on those contentions. The Defendants filed such a pleading, and I had a hearing on the motion for reconsideration June 21, 1994.
At that time, I advised the parties, and the people present now, that I would rehear the issue of actual damages as to this component on today, August 4, 1994. The Defendants initially indicated they wanted the opportunity to offer the Plaintiff a similar lease on a similar vehicle, but at the outset of his hearing both counsel for D.A. Crossman and Atlanta Fleet and Leasing announced that they would not be in a position to make such an offer.
The Plaintiff testified, and contended that the damages necessary to allow him to enter into a new lease of a similar vehicle was in the range of thirty-four to thirty-six thousand dollars ($34,000.00 to $36,000.00). I’ve examined the evidence presented, including Exhibits 1 and 2, while not admitted, I felt I had to look at them to see what you all were talking about, to see if they were hearsay. And I conclude, unequivocally, that they would be, and are hearsay, and would not be competent to support an actual damage award in the amount requested.

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Cite This Page — Counsel Stack

Bluebook (online)
178 B.R. 895, 1995 Bankr. LEXIS 191, 1995 WL 77974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindsey-v-solutions-exchange-inc-in-re-lindsey-ganb-1995.