United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
before the court in this bankruptcy appeal is Appellant's
April 16, 2019, motion for reconsideration (ECF No. 16) of
this court's March 18, 2019, memorandum opinion and order
(ECF Nos. 14 & 15) granting Appellant's motions to
proceed in forma pauperis and to allow late filing
and affirming the order of the bankruptcy court. The motion
is predicated on Rule 60 of the Federal Rules of Civil
Procedure but will be construed as a motion for rehearing
under Rule 8022 of the Federal Rules of Bankruptcy Procedure.
For the reasons that follow, Appellant's motion will be
complete recitation of the procedural history and thorny
factual background underlying this bankruptcy case can be
found in numerous prior opinions and need not be repeated.
See, e.g., In re Minh Vu Hoang,
No. CV DKC 18-0443, 2019 WL 1239747, at *1 (D.Md. Mar. 18,
2019); In re Minh Vu Hoang, No. CIV.A. DKC 14-3128,
2015 WL 2345588, at *1 (D.Md. May 14, 2015); In re
Hoang, 469 B.R. 606 (D.Md. 2012). Appellees Citibank,
N.A., Fay Servicing, LLC and Cindy Diamond filed a response
in opposition on April 30, 2019. (ECF No. 18). “Unless
the district court or BAP [Bankruptcy Appellate Panel]
requests, ” however, “no response to a motion for
rehearing is permitted.” Fed.R.Bankr.P. 8022.
the district court is acting as an appellate court in a
bankruptcy case, Rule 8022 provides the sole mechanism for
filing a motion for rehearing.” In re Minh Vu
Hoang, 484 B.R. 87, 94 (D.Md. 2012) (citing In re
Zegeye, Civ. No. DKC 04-1387, 2005 WL 544763, at *1
(D.Md. Mar. 4, 2005); English-Speaking Union v.
Johnson, 353 F.3d 1013, 1019 (D.C. Cir. 2004)). The
United States Court of Appeals for “the Fourth Circuit
has not considered in a reported opinion the interplay
between Rule 60 and Rule 8022.” Reynolds v.
Maryland Dep't of Labor, Licensing & Regulation,
No. CV ELH-17-3158, 2018 WL 5045192, at *1 (D.Md. Oct. 16,
2018), reh'g denied sub nom. Reynolds v.
Maryland, No. CV ELH-17-3158, 2019 WL 1590097 (D.Md.
Apr. 11, 2019). “But it appears that every reported
federal appellate decision to have done so has concluded that
Bankruptcy Rule 8022 ‘provides the sole mechanism for
filing a motion for rehearing from a final order of the
district court sitting in [its] capacity' as a bankruptcy
appellate court.” Id. (quoting In re Bli
Farms, P'ship, 456 F.3d 654, 658 (6th
Cir. 2006) (internal quotation marks omitted). Indeed, at
least four judges in this district agree. See Id.;
In re Minh Vu Hoang, 484 B.R. at 94; Dang v.
Bank of Am. N.A., No. BR 10-14152, 2013 WL 2581432, at
*1-2 (D.Md. June 10, 2013); Kelly v. Schlossberg,
No. CV PX-17-3846, 2018 WL 4357486, at *2 (D.Md. Sept. 12,
2018). Under Fed.R.Bankr.P. 8022, Appellant's motion may
be properly denied on two independent grounds.
Appellant's motion is untimely. Rule 8022 requires that
“any motion for rehearing by the district court or BAP
must be filed within 14 days after entry of judgment on
appeal.” Appellant's motion was filed on April 16,
2019, twenty-nine days after entry of judgment, and thus, was
filed fifteen days after the fourteen-day deadline Rule 8022
demands. Cf. Reynolds, 2018 WL 5045192, at *2.
Additionally, as detailed by Judge Hollander in
Reynolds, courts do not have “discretion to
extend the filing period, sua sponte, ” where
an Appellant files a motion for rehearing past the deadline
without an accompanying motion for extension. Id.
Fed.R.Bankr.P. 9006(b)(1) provides:
[W]hen an act is required or allowed to be done at or within
a specified period by these rules or by a notice given
thereunder or by order of court, the court for cause shown
may at any time in its discretion (1) with or without motion
or notice order the period enlarged if the request therefor
is made before the expiration of the period originally
prescribed or as extended by a previous order or (2) on
motion made after the expiration of the specified period
permit the act to be done where the failure to act was the
result of excusable neglect.
basis for an extension is available here. The period for
Appellant to file the instant motion expired on April 1,
2019, and Appellant did not move for an extension of time.
Reynolds, 2018 WL 5045192, at *2.
even if Appellant's motion was timely filed, denial would
still be appropriate for the independent reason that
Appellant attempts to reassert arguments stated in
Appellant's initial appeal. Rule 8022 is silent as to the
appropriate standard for granting a rehearing, and the Fourth
Circuit has not designated a standard. Courts have been
inconsistent in their application, applying either the test
traditionally used to evaluate motions for reconsideration,
see, e.g., Kelly, 2018 WL 4357486,
at *2 (“Although the Rule does not specify a standard
of review, the standard used to evaluate motions to alter or
amend a judgment pursuant to Federal Rule of Civil Procedure
59(e) is appropriate.”), or looking to the appellate
rules for guidance, see, e.g.,
Dang, 2013 WL 2581432, at *1-2 (applying
have recognized three limited grounds for granting a motion
for reconsideration pursuant to Rule 59(e): (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct clear error of law or prevent manifest injustice.
See United States ex rel. Becker v. Westinghouse Savannah
River Co., 305 F.3d 284, 290 (4th Cir. 2002)
(citing Pac. Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998)). A
Rule 59(e) motion “may not be used to relitigate old
matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.”
Pac. Ins. Co., 148 F.3d at 403 (quoting 11 Wright,
et al., Federal Practice & Procedure § 2810.1, at
127-28 (2d ed. 1995)); see also Medlock v. Rumsfeld,
336 F.Supp.2d 452, 470 (D.Md. 2002), aff'd, 86
Fed.Appx. 665 (4th Cir. 2004) (“To the
extent that Plaintiff is simply trying to reargue the case,
he is not permitted to do so. Where a motion does not raise
new arguments, but merely urges the court to ‘change
its mind,' relief is not authorized.”) (citation
omitted). “In general, ‘reconsideration of a
judgment after its entry is an extraordinary remedy which
should be used sparingly.'” Pac. Ins. Co.,
148 F.3d at 403 (quoting Wright, et al., supra,
§ 2810.1, at 124).
Rule 40 provides in part: “The petition must state with
particularity each point of law or fact that the petitioner
believes the court has overlooked or misapprehended[.]”
Fed.R.App.P. 40(a)(2). “Petitions for rehearing should
not simply reargue the plaintiff's case or assert new
grounds.” In re Pawlak, No. CIV.A. DKC
14-2326, 2015 WL 1522945, at *1 (D.Md. Apr. 1, 2015) (quoting
Baurnhaft v. McGuffin, C/A No. 4:06-CV-3617-RBH,
2007 WL 3119611, at *1 (D.S.C. Oct. 22, 2007) (citing
Sierra Club v. Hodel, 848 F.2d 1068, 1100-01
(10th Cir. 1988) (per curiam))). At base, motions
for rehearing are “designed to ensure that the
appellate court properly considered all relevant information
in rendering its decision.” In re Zegeye, 2005
WL 544763, at *1.
both standards clearly state that a petition for rehearing or
motion for reconsideration is not a vehicle by which to
reargue a party's case. Appellant's motion does not
satisfy any of the grounds for reconsideration or rehearing
under either Fed.R.Civ.P. 59(e) or Fed.R.App.P. 40. Appellant
has not identified any relevant information the court did not
consider, intervening change in law, newly developed
evidence, clear error of law, or manifest injustice to
warrant an alteration of the prior judgment. Indeed,
Appellant's motion concerns arguments that were
previously asserted. Although the motion is difficult to
understand, Appellant appears to reargue that “estoppel
does not apply” and the court erroneously reviewed the
“case base[d] on wrong facts.” (ECF No. 16, at
1-2). Both contentions were previously argued in
Appellant's initial appeal, which the court rejected.
(ECF No. 9, at 17, 19) (“the Court is asked to deny
application of res judicata”) (“this
Court should reconsider its prior decisions which had been
rendered base[d] on wrong facts.”). Appellant even
concedes that she is “clearly not taking a position in
a case that is contrary to a position [she] has taken in
earlier legal proceedings.” (ECF No. 16, at 2).
Accordingly, Appellant has not established any ground for
on the foregoing, it is this 2nd day of May, 2019,
by the United States District Court for the District of
Maryland, ORDERED that:
Appellant's motion for reconsideration (ECF No. 16) BE,
and the same hereby IS, DENIED; and
clerk will transmit copies of the foregoing Memorandum
Opinion and Order to counsel for Appellees and ...