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Okay so please confirm you have received an order from the BK court dated 4/22/09 granting Fidelity's motion to lift stay and granting their motion that you pay the court the difference? Is there an amount listed. What is your basis for asking for a reconsideration. The reason I am asking is typically in a chapter 7 bankruptcy your auto loan deficiency will be discharged.
Okay here's what I am finding out and it doesn't look to be too favorable (sorry); I am citing cases with support law so you can review the law as well.
First the motion to lift stay probably does not need a response as it is too late. The court has already made an order for a deficiency judgment as it would appear. Fidelity had to file the motion to lift stay first before they could get the deficieny order.
Next, in In re International Fibercom, Inc., 503 F.3d 933, 944 (9th Cir. 2007) , the court held that "Under Rule 59(a), made applicable to bankruptcy proceedings by Federal Rules of Bankruptcy Procedure 9023, a court has discretion to reopen a judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions [citations omitted]. . . ."
Next relevant law:
In re Captain Blythers, Inc., 311 B.R. 530 (9th Cir. B.A.P. 2004), aff'd, 182 Fed. Appx. 708 (2006). the court said that the rules do not recognize a motion for reconsideration. Since the motion in question was brought within 10 days of entry of judgment, it is considered a motion to amend findings under Rule 52, or a motion to alter or amend judgment under Rule 59.
"There are three grounds for granting new trials under 59(a)(2):1. Manifest error of law,2. Manifest error of fact, and3. Newly discovered evidence
See Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978) (citing 6A Moore's Federal Practice at ¶59.07 at 59-94).
It appears that you have to file a Rule 59 or Rule 52 motion with in 10 days of the order.
Since it appear that that time is passed, you may have a shot at it as a motion for relief from judgment under Bankr. Rule 9024 and Civ. Rule 60. A Civ. Rule 60 motion "is addressed to the sound discretion of the trial court." Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991).
Civ. Rule 60(b) lists six grounds upon which a court may relieve a party from a final
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Thus you will need to file a Rule 60 motion and prove one or more of these basis for getting the BK court's order in favor of Fidelity reversed.
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