Stephen Bandi, et al v. Christopher Becnel

Filing

UNPUBLISHED OPINION FILED. [16-30633 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 02/13/2017 [16-30633]

Case: 16-30633

Document: 00513844644

Page: 1

Date Filed: 01/23/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-30633
Summary Calendar

FILED
January 23, 2017
Lyle W. Cayce
Clerk

In the Matter of: STEPHEN JOHN BANDI; CHARLES EDWARD BANDI,
Debtors
-----------------------------STEPHEN JOHN BANDI; CHARLES EDWARD BANDI,
Appellants
v.
CHRISTOPHER BECNEL,
Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-2014
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-30633

Document: 00513844644

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Date Filed: 01/23/2017

No. 16-30633
After Stephen and Charles Bandi (the Bandis) filed voluntary Chapter 7
bankruptcy petitions, Christopher Becnel sued the Bandis in bankruptcy court
to prevent the Bandis from discharging a debt owed to Becnel. The bankruptcy
court determined that 11 U.S.C. § 523(a)(2)(A) rendered the debt nondischargeable. The Bandis appealed this determination to the Eastern District
of Louisiana, and, subsequently, the Fifth Circuit, both of which affirmed the
bankruptcy court’s decision.
The Bandis then sought a panel rehearing and a rehearing en banc.
While these motions were pending before this court, the Bandis filed a motion
with the bankruptcy court for an indicative ruling pursuant to Rule 62.1, 1
seeking a “statement, included with the reasons why, that the issue raised [in
the motion] is substantial or not.” After the bankruptcy court denied this
motion, the Bandis filed a motion for writ with this court to compel the
bankruptcy court to hold a hearing on the motion for an indicative ruling and
to issue “Orders and Reasons.” We denied the Bandis’ petitions for a panel
rehearing and a rehearing en banc, and the Clerk for the Fifth Circuit advised
the Bandis that, because “there [was] no further relief available,” the court
would take no action on the motion for writ.
Over two years later, the Bandis moved to compel this court to resolve
the motion for writ, and the Clerk for the Fifth Circuit again advised the
Bandis that the court would take no action. Nevertheless, the Bandis filed a
motion to reopen the case, arguing that the motion for writ was actually a
notice of appeal. The court denied the motion to reopen.
The Bandis then moved to reopen the case in bankruptcy court, again
arguing that the motion for writ was actually a notice of appeal requiring
resolution. Shortly after filing this motion, the Bandis filed an independent

1

FED. R. CIV. P. 62.1.

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action in equity for relief from judgment with the bankruptcy court, requesting
a new trial, along with four motions for summary judgment and a motion to
disqualify. The bankruptcy court denied the motion to reopen, dismissed the
complaint, and dismissed the other motions as moot. After the district court
affirmed, the Bandis appealed. We affirm.
We review a bankruptcy court’s refusal to reopen a proceeding for abuse
of discretion. 2 The Bandis have premised their motion to reopen on the theory
that the motion for writ was actually a notice of appeal that requires action.
Although we “may accept a notice of appeal which ‘substantially’ complies with
the technical requirements of [Federal Rule of Appellate Procedure] 3(c), or is
the ‘functional equivalent’ of a notice of appeal, this does not mean [we] can
Instead, we require that the filed

waive the requirement altogether.” 3

document “clearly evince[] the party’s intent to appeal.” 4 The motion for writ
does not clearly evince that the Bandis intended to appeal. Prior to filing the
motion for writ, they had filed four notices of appeal, and the motion for writ
did not mention the district court—the proper appellate court. 5 There was no
reason to believe that the Bandis had intended to file a notice of appeal instead
of a motion for writ, and, thus, the document did not provide “sufficient notice
to other parties and the courts.” 6
However, even if we assume that the Bandis’ construction of the case is
accurate, there is no relief that an appeal of the Bandis’ indicative ruling can
provide. The Bandis’ “appeal” seeks review of the bankruptcy court’s refusal

Matter of Case, 937 F.2d 1014, 1018 (5th Cir. 1991).
Birdsong v. Wrotenbery, 901 F.2d 1270, 1272 (5th Cir. 1990) (quoting Torres v.
Oakland Scavenger Co., 487 U.S. 312, 315, 317(1988)).
4 Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (per curiam) (quoting Cobb v.
Lewis, 488 F.2d 41, 45 (5th Cir. 1974)).
5 28 U.S.C. § 158(a), (d).
6 Smith v. Barry, 502 U.S. 244, 248 (1992).
2
3

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to hold a hearing to resolve whether the Bandis’ Rule 62.1 motion raised a
substantial issue. The case has been decided, and the mandate has issued. It
does not matter whether the district court believes the motion raises a
substantial issue, as the purpose of such a ruling is to allow us to remand the
case if we deem it “useful to decide the motion before [deciding] the pending
appeal.” 7 There is no case to remand, and, as a result, the requested hearing
would serve no purpose. Thus, the motion is moot, and the district court did
not abuse its discretion by refusing to reopen the case.
The bankruptcy court also properly dismissed the independent action in
equity and the accompanying motions. An “independent action [cannot] be
made a vehicle for the relitigation of issues,” 8 and “[a]t some point a court must
decide that a plaintiff has had fair opportunity to make his case.” 9 The Bandis’
basis for reopening the trial through an independent action is that “[t]he record
shows that the trial court” in the original proceeding “issued written Orders
and Reasons that contain material misrepresentations.”

They have

unsuccessfully raised this same allegation on repeated occasions at every level
of the proceeding, including before this court in their brief on the merits of the
original claim and in their motions for a panel rehearing and a rehearing en
banc—all of which we rejected. The Bandis, in fact, acknowledged as much in
their brief before the district court, stating that “[d]uring the case’s original
appeal to this Court . . . all of the [material misrepresentations] were raised”

FED. R. CIV. P. 62.1 advisory committee’s notes to 2009 adoption; see id. (explaining
that Rule 62.1 adopts the “practice most courts follow when a party makes a Rule 60(b)
motion to vacate a judgment that is pending on appeal” that “after an appeal has been
docketed and while it remains pending, the district court cannot grant a Rule 60(b) motion
without a remand”); see also FED. R. CIV. P. 62.1(c) (“The district court may decide the motion
if the court of appeals remands for that purpose.”); Shepherd v. Int’l Paper Co., 372 F.3d 326,
329 (5th Cir. 2004) (applying the rule that once an appeal has been filed the district court “no
longer has jurisdiction to grant” a Rule 60(b) motion).
8 Bankers Mortg. Co. v. United States, 423 F.2d 73, 79 (5th Cir. 1970).
9 Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).
7

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but, they believed, not “fully considered,” and that “[u]pon further appeal to
the Fifth Circuit, [we] again raised these issues.” To the extent that the Bandis
have now shifted the focus of their argument to a due process challenge
stemming from a purported filing error by the Clerk of the Fifth Circuit, they
have raised that argument for the first time on appeal and have cited no case
in support of that argument. Accordingly, it is waived. 10 “There must be an
end to litigation at some point.” 11 We have reached that point.
*

*

*

For the foregoing reasons, we AFFIRM the decision of the district court.

See Mid-Continent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 113 (5th Cir.
2010); Lee v. Cytec Indus., Inc., 460 F.3d 673, 679 n.11 (5th Cir. 2006).
11 Smith v. Mo. Pac. R.R. Co., 615 F.2d 683, 685 (5th Cir. 1980).
10

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