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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39164
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I filed a Chapter 13 petition in 2012 which was converted to

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I filed a Chapter 13 petition in 2012 which was converted to Chapter 7 and I received a discharge in 2015. While a case was still opened I filed a another 13 in 2016. The same alleged secured creditors filed a second proof of claim. I objected because they had already filed a proof of claim in 2012 and the debt was discharged. The judge overruled my objection. My question is can I file a motion for extension of time to file a motion for reconsideration and not lose my right to an appeal in the district court? If so what is the bankruptcy code and the rules that would govern the relief?

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Hello,

A reconsideration motion filed within 14 days of entry of an order allowing or disallowing a claim is considered a motion for a new trial under FRCP 59(a). In re Consolidated Pioneer Mortg., 178 B.R. 222, 227 (9th Cir BAP 1995); and see FRBP 9023 (incorporating FRCP 59(a) in bankruptcy proceedings).

Where a proper FRCP 59(a) motion is filed within 14 days of entry of the order, it tolls the time for filing an appeal until disposition of the motion. FRBP 8002(b); In re Davis, 237 B.R. 177, 180-181 MD AL 1999.

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Customer: replied 29 days ago.
Thank you for your answer. I was just wondering if there was anything I could file to give me more then 14 days to file my motion to amend and make additional findings of facts. When filing this motion can you tell me what elements must I argue?
Customer: replied 29 days ago.
5 Stars

I was just wondering if there was anything I could file to give me more then 14 days to file my motion to amend and make additional findings of facts?

A: The 14-day appeal deadline is jurisdictional. If you miss the deadline, your right to appeal expires. However, if you file the motion to reconsider (alter or amend) after 14 days, the motion will be treated as a motion for relief from judgment or order. FRCP 60(b). If the Rule 60(b) motion is denied, then you can appeal the denial, but you can only appeal the reasons for the denial and not the reasons for the denial of the underlying claim (which is "splitting hairs," but that's what you're up against).

When filing this motion can you tell me what elements must I argue?

A: mistake, inadvertence, surprise or excusable neglect; newly-discovered evidence that by due diligence could not have been discovered in time to move for a new trial under FRBP 59(b); fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; the underlying judgment is void; the underlying 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 any other reason justifying relief from operation of the judgment. FRBP 9024 (incorporating FRCP 60(b).

See also, Pioneer Investment Services Co. v. Brunswick Assocs. Ltd.Partnership , 507 U.S. 380, 395, 113 S.Ct. 1489, 1494-1498 (1993); In re Payless Cashways, Inc., 230 B.R. 120, 138 (8th Cir. BAP 1999) (motion for reconsideration of disallowed claim denied based on Pioneer standards)

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Customer: replied 29 days ago.
5 stars
Customer: replied 29 days ago.
It is my Understanding that exclusable neglect can only be made under a chapter 11 petition and not under a chapter 13 petition?

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Customer: replied 29 days ago.
ok.

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