Municipality of Carolina v. Gonzalez (In re Gonzalez)

490 B.R. 642
CourtBankruptcy Appellate Panel of the First Circuit
DecidedApril 12, 2013
DocketBankruptcy No. 10-10029-BKT; BAP No. PR 12-063
StatusPublished
Cited by11 cases

This text of 490 B.R. 642 (Municipality of Carolina v. Gonzalez (In re Gonzalez)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Municipality of Carolina v. Gonzalez (In re Gonzalez), 490 B.R. 642 (bap1 2013).

Opinion

PER CURIAM.

The Municipality of Carolina (the “Municipality”) appeals from the bankruptcy court’s denial of its motion to set aside a previous order disallowing a claim filed on its behalf by Shannon Leigh Baker Gonzalez (the “Debtor”) pursuant to 11 U.S.C. § 501(c) and Fed. R. Bankr.P. 3004.1 For the reasons set forth below, the decision of the bankruptcy court is AFFIRMED.

BACKGROUND

The Debtor filed a chapter 13 petition in October 2010. On her Schedule E, the Debtor listed the Municipality as an unsecured creditor with a priority claim for municipal taxes in the amount of $760.28. The Debtor’s chapter 13 plan, as amended, provided for the payment of priority claims of certain creditors, including the Municipality. The plan was confirmed in May 2011.

Shortly after the bankruptcy filing, the bankruptcy court issued a “Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines” (the “Bar Date Notice”), notifying creditors and parties in interest that the deadline for filing proofs of claim was February 28, 2011, for nongovernmental creditors, and April 25, 2011, for governmental units. The clerk of the bankruptcy court served the Bar Date Notice on the Municipality by first-class mail at its correct address.

The Municipality, a governmental unit, never filed a proof of claim, and, on June 7, 2011, the Debtor filed a proof of claim asserting an unsecured priority claim in the Municipality’s name in the amount of $760.28 (the “Claim”).2 On June 16, 2011, Alejandro Oliveras Rivera, Chapter 13 Trustee (the “Chapter 13 Trustee”), objected to the Claim, stating simply that it was “filed after the bar date of [Bankruptcy Rule] 3002(c) elapsed,” although the Claim was filed pursuant to Bankruptcy Rule 3004. Neither the Debtor nor the Municipality filed a response to the Trustee’s objection. On July 19, 2011, the bankruptcy court entered an order (the [645]*645“Claim Order”), stating the following: “Trustee’s objection to claim # 17 by claimant Municipio de Carolina (docket # 51) is hereby granted.”

Almost ten months later, on May 8, 2012, the Municipality filed a motion (the “Rule 60(b) Motion”) to set aside the Claim Order pursuant to Bankruptcy Rule 9024, which makes Fed.R.Civ.P. 60(b) (“Rule 60(b)”) applicable to bankruptcy proceedings. Without identifying a particular subsection of Rule 60(b), the Municipality argued that, although § 501(c) gives a debtor authority to file a proof of claim on behalf of a creditor, the Debtor should not have been allowed to file a proof of claim on its behalf when she knew she was filing the Claim after the bar date, and that the Claim would likely be disallowed. Accordingly, the Municipality moved the bankruptcy court to vacate its order disallowing the Claim, thereby permitting the late filing of the Claim by the Debtor.

In response, the Debtor argued that the bankruptcy court should deny the Rule 60(b) Motion because the Municipality was included on her schedules as an unsecured priority creditor, was duly notified of the case, and never filed a claim. The Trustee also filed a response, arguing that the Rule 60(b) Motion should be denied because: (1) the Municipality had not met the strict and narrow criteria set forth in Rule 60(b) to reconsider the Claim Order; and (2) the Debtor’s filing of the Claim on the Municipality’s behalf was time-barred and, as such, should remain disallowed. The Trustee also observed that the Municipality’s position was not clear: “[0]n one hand it seems to object to the filing of the claim by debtor on their behalf by alleging it was ‘not authorized’, and on the other[,] creditor is requesting the allowance of the claim.”

On August 24, 2012, the bankruptcy court, without a hearing, entered an order (the “Rule 60(b) Order”), stating without further explanation:

For [the] reasons stated in the Trustee’s motion filed on Docket No. 81, the Municipality de Carolina’s untimely motion to set aside order (docket # 54) is hereby denied.

The Municipality filed a notice of appeal with respect to the Rule 60(b) Order.3 It did not identify the Claim Order in its notice of appeal.

JURISDICTION

Before addressing the merits of an appeal, the Panel must determine that it has jurisdiction, even if the issue is not raised by the litigants. Garcia Matos v. Oliveras Rivera (In re Garcia Matos), 478 B.R. 506, 511 (1st Cir. BAP 2012).

I. Scope of Appeal

In its notice of appeal, the Municipality indicated that it was appealing the Rule 60(b) Order. Thus, from the face of the notice of appeal, only the Rule 60(b) Order is subject to review, not the underlying Claim Order. In its opening brief, however, the Municipality challenges not only the denial of the Rule 60(b) Motion, but also the underlying Claim Order. According to the Municipality, “[a] timely appeal of an order denying relief [under Rule 60(b) ] is deemed also timely as to the underlying order.” The Trustee also identifies the Claim Order as one of two orders [646]*646on appeal, and addresses the merits of both the Claim Order and the Rule 60(b) Order in his brief.

In some circumstances, the Panel has construed a notice of appeal that only names the post-judgment order as encompassing both the post-judgment order and the judgment itself, especially when it is clear that the appellant intended to appeal both orders, and where both parties brief issues relating to the underlying judgment. See Bellas Pavers, LLC v. Stewart (In re Stewart), No. MB 12-017, 2012 WL 5189048, at *4-5, 2012 Bankr.LEXIS 4943, at *10-12 (1st Cir. BAP Oct. 18, 2012) (citing cases); Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval), 327 B.R. 493, 504 (1st Cir. BAP 2005). In those cases, the Panel acknowledged that the United States Court of Appeals for the First Circuit has been “liberal” in determining the scope of appeals, and that “noncompliance with mere technicalities will not defeat appellate jurisdiction ... so long as the litigant’s filing is the functional equivalent of what the rule requires.” In re San Miguel Sandoval, 327 B.R. at 504 (citation and internal quotation marks omitted).

Those cases are distinguishable, however, because they involved appeals of Rule 59(e) motions, and the timely filing of the respective Rule 59(e) motions tolled the appeal period for the underlying orders. Where a party does not file a timely notice of appeal from a final order, and instead files a Rule 60(b) motion for relief from the order, an appellate court’s jurisdiction does not extend to a review of the underlying order. See Haddock Rivera v. ASUME (In re Rivera), 486 B.R. 574, 577 n. 4 (1st Cir. BAP 2013). In this case, the Municipality did not file the Rule 60(b) Motion until ten months after the Claim Order, and, therefore, it did not toll the appeal period for the underlying Claim Order. See Fed. R. Bankr.P. 8002

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Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/municipality-of-carolina-v-gonzalez-in-re-gonzalez-bap1-2013.