United States District Court, D. New Mexico
In re THE VAUGHAN COMPANY, REALTORS, Debtor. DAVID LANKFORD and LEE ANN LANKFORD, Appellants,
JUDITH A. WAGNER, Chapter 11 Trustee of the Bankruptcy Estate of the Vaughan Company Realtors, Appellee. No.1:18-cv-00037 WJ/KRS
MEMORANDUM OPINION AND ORDER DENYING APPELLANTS'
MOTION TO FILE SURREPLY AND MOTION TO VACATE
MATTER comes before the Court on Appellants' Surreply and
Motion for Leave to File Surreply, filed February 5, 2018
(Doc. 16), and Appellants' Motion to
Vacate Memorandum Opinion and Order Dismissing Appeal as
Untimely, as Void Per 60(b)(4) and (c)(1) and Objection to
Denying Motion to Vacate Injunction (the “Motion to
Vacate”), filed February 9, 2018 (Doc.
17). For the reasons stated below, these motions are
filed their Notice of Appeal with the United States
Bankruptcy Court, District of New Mexico, on January 4, 2018.
Appellants appealed to this Court Bankruptcy Judge Robert
Jacobvitz's Memorandum Opinion and Order Denying Motion
to Vacate Void Judgments Per Rule 60(b)(4). See
Doc. 1, p. 6. Because it appeared that the
Notice of Appeal was filed late, the Court issued an Order to
Show Cause Why the Appeal Should Not Be Dismissed as Untimely
(the “Order to Show Cause”) (Doc.
8). Appellants responded, and on February 1, 2018,
the Court entered a Memorandum Opinion and Order Dismissing
this Appeal as Untimely (the “MOO”) (Doc.
12). On February 16, 2018, Appellants filed a notice
of appeal of the judgment dismissing this appeal as untimely
(Doc. 20). The United States Court of
Appeals for the Tenth Circuit abated the appeal pending
resolution of the post-judgment motions. See
District Court has “jurisdiction to hear appeals from
… final judgments, orders, and decrees” of the
Bankruptcy Court. 28 U.S.C. § 158(a)(1). The appellate
process functions in essentially the “same manner as
[civil] appeals ... are taken to the courts of appeals from
the district courts.” 28 U.S.C. § 158(c)(2).
However, the procedures and “time limits that govern
such an appeal are … set forth in the Bankruptcy
Rules” rather than the Federal Rules of Appellate
Procedure. In re Latture, 605 F.3d 830, 838 (10th
Cir. 2010). See also Fed. R. Bankr. P. 8001(a)
(“These … rules govern the procedure in a United
States District Court … on appeal from a judgment,
order or decree of a bankruptcy court.”).
Appellants' Motion to Vacate Order Dismissing Appeal
filed this Motion to Vacate pursuant to Fed.R.Civ.P. 60(b)(4)
and (c). However, the Federal Rules of Civil Procedure do not
apply in this appeal. See Fed. R. Bank. P. 8001
(“These Part VIII rules govern the procedure in a
United States district court and a bankruptcy appellate panel
on appeal from a judgment, order, or decree of a bankruptcy
Fed. R. Bank. P. 8022 is the exclusive vehicle for seeking
rehearing when a district court considers a bankruptcy
appeal. Collier on Bankruptcy, 8022.01 (16th ed.
2017), citing English-Speaking Union v. Johnson, 353
F.3d 1013, 1019 (D.C. Cir. 2004) and Dang v. Bank of Am.
N.A., 2013 WL 2581432, at *1 (D. Md. 2013) (Fed. R.
Bank. P. 8022 is the only way to seek review of a district
court's decision in a bankruptcy appeal. Fed.R.Civ.P. 60
does not apply.). See also Butler v. Merchants Bank &
Trust Co., 2 F.3d 154, 155 (5th Cir.1993) (“When
the district court is acting as an appellate court in a
bankruptcy case, ‘Bankruptcy Rule  provides the
sole mechanism for filing a motion for rehearing.”);
In re Bli Farms, partnership, 465 F.3d 654, 657 (6th
Cir. 2006) (only way to seek review of an order entered by a
district court in its bankruptcy appellate capacity is by
motion for rehearing under Bankruptcy Rule 8022 and or
appeal; Rule 60(b) motion is a nullity). Therefore, the Court
concludes that this motion should be denied because Rule 60
does not apply to bankruptcy appeals before a district court.
In re Bli Farms, 465 F.3d at 658 (Rule 60(b) motion
was a nullity where filed in district court sitting as
bankruptcy appellate court).
the Court were to construe Defendant's Fed.R.Civ.P. 60
motion as a motion for rehearing pursuant to Fed. R. Bank. P.
8022, the Court concludes that there are no grounds for
rehearing. Generally, courts look to Fed. R. App. P. 40 for
the standard for ruling on a petition for rehearing pursuant
to Fed. R. Bank. P. 8022. Appellate 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 Appellants' case or assert new grounds. See
Sierra Club v. Hodel, 848 F.2d 1068, 1100-01 (10th
Cir.1988) and In re Hessco Indus., Inc.,
295 B.R. 372, 375 (9th Cir. BAP 2003).
the sole issue is whether the Notice of Appeal was timely
filed in bankruptcy court. In this Motion to Vacate,
Appellants appear to argue that since there is no time limit
to file a Rule 60(b)(4) motion in bankruptcy court, there is
no time limit to appeal the denial of such motion. Appellants
raised the same argument in their response to the Order to
Show Cause, and Appellants have not raised any relevant fact
or issue that the Court may have missed. Appellants also did
not provide any additional facts or reasons why the Notice of
Appeal was in fact timely. Therefore, for the reasons stated
in the MOO, Doc. 12, the Court concludes
that the Notice of Appeal was untimely.
also appear to argue that they are not appealing Bankruptcy
Judge Robert Jacobvitz's Memorandum Opinion and Order
Denying Motion to Vacate Void Judgments per Fed.R.Civ.P.
60(b)(4). Rather, they state that they are simply appealing
Bankruptcy Judge Robert Jacobvitz's issuance of orders
without jurisdiction or authority. However, in their Notice
of Appeal, Appellants identify that Memorandum Opinion as the
order appealed from. See Doc. I, p.
6. Therefore, this argument is not well taken.
remaining assertions in the Motion to Vacate are either
frivolous or not relevant to the dismissal of their appeal as
untimely. For example, Appellants assert that the undersigned
“was willing to commit acts of treason and obstruct
justice to prevent the [Appellants] from getting a fair and
unbiased appeal.” Doc. 17, p. 3. The
Court already addressed recusal in the MOO. Doc. 12,
p. 3-4 n.1. Moreover, the Court cannot address the
merits of the appeal at this stage, because it lacks
appellate jurisdiction over this untimely appeal.
Motion for Leave to File Surreply.
request leave to file a surreply, and attached the surreply
to their motion. In the Order to Show Cause (Doc.
8), the Court allowed Appellants to respond, and
allowed the Appellee to reply. The MOO was entered prior to
the filing of the motion for surreply. Therefore, the motion
to file surreply is moot and should be denied. Moreover,
after reviewing the surreply, the Court concludes that ...