Myers v. Vetter
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 6/30/2017. (c/m)(hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE DOUGLAS MYERS
Civil Action No. ELH-17-149
Douglas Myers, the self-represented debtor/appellant, appeals two orders issued by the
United States Bankruptcy Court for the District of Maryland in bankruptcy case RAG-10-28695.
See ECF 1 (Notice of Appeal); ECF 2 (Record on Appeal); ECF 4 (Appellant’s Brief); see also
ECF 2-15 (Amended Order dismissing bankruptcy case). 1 In particular, Myers appeals the
bankruptcy court’s orders with respect to two motions that he filed in 2016, more than five years
after his bankruptcy case was dismissed. They are: “Order Denying Motion to Reconsider”
(ECF 2-27) and “Order Denying Motion to Vacate Order Dismissing Case.” ECF 2-28.
Gerard Vetter, who was then the Interim Chapter 13 Trustee, opposed Myers’s attempt to
reopen bankruptcy case. See ECF 2-22 (Trustee’s Opposition to Motion to Reopen Case)
(“Opposition”). But, no brief has been filed by the trustee in this Court, and the time to do so has
expired. See Fed. R. Bankr. P. 8018 (providing appellee thirty days to file an appeal after service
of appellant’s brief).
Pursuant to Fed. R. Bankr. P. 8019, Myers has asked the Court to hold a hearing on his
appeal. ECF 5. However, no hearing is necessary because the facts and legal contentions are
adequately presented in appellant’s brief and on review of the record on appeal, and a hearing
Unless otherwise noted, citations are to filings in this case, not the bankruptcy case.
However, many of the filings in this case were also filed in the bankruptcy case.
would not aid the decisional process. See Fed. R. Bankr. P. 8019(b)(3); see also Local Rule
For the reasons that follow, I shall affirm the orders of the bankruptcy court.
Factual and Procedural Background 2
On August 16, 2010, Myers filed a voluntary petition under Chapter 13 of the United
States Bankruptcy Code. ECF 2-1 (“Petition”). In the Petition, Myers estimated that he had
between one and forty-nine creditors and that he had between $1,000,001 and $10 million in
liabilities. Id. at 1. Moreover, Myers indicated that he had filed two bankruptcy cases within the
past ten years, i.e., cases NVA-08-18255 and RAG-08-20990. ECF 2-1 at 2. But, the Clerk of
the Bankruptcy Court made an entry on the docket of the case clarifying that, since 1987, Myers
had filed seven bankruptcy cases in this District. See docket, RAG-10-28695.
Pursuant to 11 U.S.C. § 341, on August 17, 2010, the Clerk of the Bankruptcy Court set
the meeting of creditors for September 30, 2010. Thereafter, on October 5, 2010, Ellen Cosby,
who was then the Chapter 13 Trustee, moved to dismiss the case (ECF 2-5), stating that Myers
I incorporate by reference the Background set out in my opinions in Myers v. CFG
Cmty. Bank, ELH-16-3220, ECF 3 (Oct. 5, 2016) and ECF 8 (Nov. 29, 2016).
In Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n. 1 (4th Cir. 1990), the
Fourth Circuit recognized that a district court may “properly take judicial notice of its own
records.” Moreover, “a court may properly take judicial notice of ‘matters of public record’ and
other information that, under Fed. R. Evid. 201, constitute ‘adjudicative facts.’” Goldfarb v.
Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015); see also Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat'l Gaming, Inc., 637
F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt County Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, pursuant to Fed. R. Evid. 201, a court may
take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute,” in
that they are “(1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
had failed to appear at the § 341 meeting on September 30, 2010. Id. Myers did not respond to
the motion to dismiss. See docket, RAG-10-28695. Judge Gordon dismissed the case by Order
of November 1, 2010. ECF 2-6.
On November 8, 2010, Myers filed a motion for reconsideration in the bankruptcy court,
stating that he “did not receive notice” of the § 341 meeting “due to [his] failure to provide the
court with [his] new mailing address.” ECF 2-8. Myers also stated that he did not know that the
meeting had been set until he attempted to attend a hearing on October 22, 2010, which had been
cancelled. Id.; see RAG-10-28695, ECF 18. Notably, the notice of the hearing on October 22,
2010, was sent to the same address as the notice of the meeting of creditors, about one month
after the notice of the meeting with creditors was supposedly sent to the wrong address.
Compare id., ECF 8 at 5 (certificate of notice) with id., ECF 18-9 (certificate of service).
Myers filed an amended motion for reconsideration on November 23, 2010. ECF 2-10
(“First Motion to Reconsider”). It appears that the only modification made to ECF 2-8 was the
addition of a certificate of service. See ECF 2-10.
Judge Gordon scheduled a hearing on the First Motion to Reconsider for January 5, 2011.
RAG-10-28695, ECF 45. On January 2, 2011, the Chapter 13 Trustee opposed the First Motion
to Reconsider, arguing that Myers was in default under the Chapter 13 Plan that he had filed;
Myers had failed to attend the meeting of creditors; and Myers had failed to file “the required
Chapter 13 filings.” See id., ECF 47.
On January 5, 2011, the bankruptcy court proceeded with the hearing on the Motion to
Reconsider. See ECF 2-15. Myers failed to appear at the hearing. See id. Judge Gordon issued
an amended order dismissing the case on January 31, 2011, “with prejudice against a new case
being filed in bankruptcy by this Debtor for a period of 365 days . . . .” Id.
The bankruptcy court scheduled another hearing on February 8, 2011, with respect to an
ancillary matter. See RAG-10-28695, ECF 58. At the hearing, pursuant to Fed. R. Bankr. P.
9023 and Fed. R. Civ. P. 59, Myers orally moved for the bankruptcy court to reconsider its
amended order dismissing the case. See ECF 2-18. The bankruptcy court denied the motion by
Order of February 13, 2011. Id.
At about the same time, on February 23, 2011, Myers’s properties at 5734 and 5800
Emory Road in Upperco, Maryland sold at foreclosure for $225,000. The foreclosure actions
were the subject of two appeals filed by Myers in the Maryland Court of Special Appeals, both
of which upheld the foreclosures. See Myers v. Katz, No. 1058 and No. 2637, Sept. Term 2011
(Md. Ct. Spec. App. June 4, 2013) (“First Appeal”); Myers v. Katz, No. 1091, Sept. Term 2014,
2015 WL 6157305, at *1, 2 (Md. Ct. Spec. App. Oct. 19, 2015) (“Second Appeal”), cert. denied,
446 Md. 292, 132 A.3d 195 (2016).
In the Second Appeal, the Court of Special Appeals explained the history that led to the
foreclosures and the conduct of Myers with respect to those proceedings. The court recounted
that the Circuit Court for Baltimore County ratified the foreclosure sales on June 27, 2011. 2015
WL 6157305, at *1, 2. Myers then filed the First Appeal. The Maryland Court of Special
Appeals affirmed, in an unreported, consolidated opinion issued on June 4, 2013. Id.
particular, the court “affirmed the circuit court's orders in both cases, holding that the court did
not err in (1) ratifying the foreclosure sale, and (2) denying Myers's motion to vacate under Rule
Thereafter, on April 7, 2014, Myers filed a second motion to vacate the judgment, which
he later amended and supplemented. Id. And, on May 19, 2014, Myers filed a motion to alter or
amend judgment, which related to the Auditor’s Report and Account, which he also later
supplemented. Myers, 2015 WL 6157305, at 2. The substitute foreclosure trustee opposed all of
the motions. Id.
In an order dated July 8, 2014, the Circuit Court for Baltimore County denied the
motions. Id. That court noted that the motions were “‘fraught with a rambling dissertation of
bald allegations and conclusory statement[s] not indicative of any fact support.’” Id. Myers
filed a motion to alter or amend the order, which the circuit court denied. Id.
On July 29, 2014, Myers noted the Second Appeal. Again, the Maryland Court of
Special Appeals affirmed, concluding: “[T]he law of the case doctrine precludes further litigation
of the issues that could have been raised in Myers's first appeal.” Id. at 6. The court added, id.:
“If Myers continues to attack a judgment that is clearly valid and final by imagining new reasons
why he should win, Myers runs the risk of incurring sanctions in the form of attorneys' fees
pursuant to Rule 1–341.”
Thereafter, Myers filed a petition for writ of certiorari to the Maryland Court of Appeals.
The petition was denied on February 22, 2016. Myers v. Katz, 446 Md. 292, 132 A.3d 195
On July 1, 2016, after Myers was unsuccessful in State court, and more than five years
after Judge Gordon issued his amended order dismissing the bankruptcy case, Myers filed a
“Motion to Reopen Chapter 13 Case,” pursuant to 11 U.S.C. § 350(b) and Fed. R. Bankr. P.
5010. ECF 2-19. The motion was supported by a memorandum of law. ECF 2-21 (collectively,
“Motion to Reopen”). In the Motion to Reopen (ECF 2-19), Myers claimed, inter alia, that the
bankruptcy court’s order dismissing the case was void as inconsistent with due process because
“all Notices and Orders, other than the one (1) Notice, sent November 11, 2010 (Doc 42), were
sent to the wrong address . . . .” Id. ¶ 12. He also argued that the bankruptcy court should
reopen the case so as to “unwind the foreclosure sale” of his properties because, in his view, the
Circuit Court for Baltimore County and the Maryland Court of Special Appeals improperly
permitted the foreclosure sale to proceed. ECF 2-21 at 5, 6.
As indicated, the Interim Chapter 13 Trustee responded in opposition to the Motion to
Reopen on July 18, 2016. ECF 2-22. In his Opposition, Vetter argued that the claims in Myers’s
Motion to Reopen were not cognizable under Rules 60(b)(3) and 60(b)(4). Id. ¶¶ 5-6. In
addition, Vetter asserted that the Motion to Reopen was untimely. Id. ¶ 7.
On July 19, 2016, Myers submitted a “Motion to Supplement” his Motion to Reopen.
RAG-10-28695, ECF 73. In the Motion to Supplement, Myers pointed out that the address to
which the Clerk of the Bankruptcy Court mailed copies of notices in 2010 and 2011 was not the
mailing address that Myers listed on the Petition. Id. Myers filed a reply in support of his
Motion to Reopen on July 22, 2016. ECF 2-23. By Order of August 10, 2016, Judge Gordon
denied the Motion to Reopen, without explanation. ECF 2-24.
While the Motion to Reopen was pending in the bankruptcy court, Myers filed two
actions in this Court. In the first action, Myers v. CFG Cmty. Bank, CCB-16-3098, Myers
claimed that the bankruptcy court violated his due process rights by mailing critical notices to the
wrong address. See id., ECF 1, ¶ 11. Further, Myers claimed that the case concerned a
“wrongful foreclosure” because, in his view, the foreclosure of his properties was executed in
violation of the bankruptcy court’s automatic stay. Id. at 1. By Memorandum (id., ECF 2) and
Order (id., ECF 3) of September 16, 2016, Judge Blake dismissed the case for lack of subject
matter jurisdiction, finding that the claims pertained to foreclosure and that federal courts lack
jurisdiction over foreclosure actions. Id., ECF 2 at 4. 3
Shortly thereafter, on September 22, 2016, Myers filed the second case. See Myers v.
CFG Community Bank, ELH-16-3220. In that case, Myers asserted claims similar to those in his
first case. See id., ECF 2. By Memorandum (id., ECF 3) and Order (id., ECF 4) of October 5,
2016, I dismissed the case for lack of subject matter jurisdiction. In my Memorandum, I
explained that Myers’s due process concerns failed to establish subject matter jurisdiction in this
Court. Id., ECF 3 at 5. And, I observed that his claims appeared to be barred by the doctrine of
res judicata, based on Judge Blake’s prior ruling. Id. at 6-8.
Myers then moved for reconsideration in this Court on October 12, 2016. Id., ECF 5. He
filed an amended motion for reconsideration on October 17, 2016. Id., ECF 6. In essence, he
claimed that the Court “misapprehended [his] position in this matter” and that his complaint
actually turned on the bankruptcy court’s “numerous violations of the due process clause of the
Fifth Amendment . . . .” ECF 6 at 2.
By Memorandum (id., ECF 8) and Order (id., ECF 9) of November 29, 2016, I denied the
motion for reconsideration. I explained that the relief sought by Myers in his amended complaint
pertained to the foreclosure of his properties, and that federal courts lack subject matter
jurisdiction over foreclosure matters, even where due process arguments are invoked. Id., ECF 8
at 7-8. Moreover, I indicated that, to the extent Myers challenged the procedure used by the
bankruptcy court, the proper procedure would have been to file an appeal in that court. Id. at 8.
I said, id.: “As no appeal was noted, at this juncture, this court lacks jurisdiction to review the
denial of the motion to reopen.”
Based on my review of the opinions issued by the Maryland Court of Special Appeals,
it does not appear that Myers argued that the foreclosure violated the automatic stay.
On December 13, 2016, Myers filed a motion to reconsider in the bankruptcy court,
asking Judge Gordon to vacate his Order denying the Motion to Reopen. ECF 2-25 (“Motion to
Reconsider”). In his Motion to Reconsider, Myers argued that he was not “provided a full and
fair opportunity to litigate the merits of this contested matter” because the bankruptcy court
denied his motion “without holding an oral hearing as required by Rule 9014(a).” Id. ¶ 6. Myers
also noted that Judge Gordon’s Order denying the Motion to Reopen did not reference Myers’s
motion to supplement or otherwise justify the decision. Id. ¶ 7.
Also on December 13, 2016, Myers submitted a “Revised Motion to Reopen Chapter 13
Case”, reasserting his earlier arguments concerning notice. RAG-10-28695, ECF 78. And, on
December 13, 2016, Myers filed a “Motion to Vacate Dismissal, Set Aside Foreclosure Sale and
Void Deed.” ECF 2-26 (“Motion to Vacate”).
Judge Gordon denied the Motion to Reconsider by Order of January 5, 2017. ECF 2-27.
In his Order, Judge Gordon said:
The Debtor has filed bankruptcy eight times including this case. An Amended
Order (Dkt. No. 56) dismissing this case with prejudice was entered on 1/31/11.
The Debtor was barred from refiling for one year from the entry of the Amended
Order. The Amended Order was entered for the reasons identified in the Trustee's
Objection (Dkt. No. 47) and as explained by the Court at the 1/5/11 hearing. The
Debtor did not attend his Section 341 meeting of creditors, claiming a failure of
notice, but did appear for a cancelled hearing on a lift stay motion (Dkt. No. 18)
as to which the Court finds he did receive notice. The Debtor's conduct has been
abusive of the bankruptcy system and the Court sees no reason whatsoever to
undo the Amended Order.
In addition, by Order of January 5, 2017, Judge Gordon denied the Motion to Vacate,
without explanation. ECF 2-28. However, it is apparent that the reasoning in ECF 2-27 is also
applicable to ECF 2-28.
As indicated, Myers seeks review of Judge Gordon’s orders denying his Motion to
Reconsider (ECF 2-25) and his Motion to Vacate (ECF 2-26). Both the Motion to Reconsider
(ECF 2-25) and the Motion to Vacate (ECF 2-26) were made pursuant to Fed. R. Bankr. P. 9024,
which provides that Fed. R. Civ. P. 60 “applies in cases under the [Bankruptcy] Code”, with
certain exceptions not pertinent here.
In particular, Myers contends that Judge Gordon
erroneously denied his Motion for Reconsider because, in Myers’s view, Judge Gordon was
required to hold a hearing on the merits of the Motion to Reopen and also on the merits of the
Motion to Reconsider. See ECF 4 at 20-23. And, Myers contends that Judge Gordon’s denial of
his Motion to Vacate was erroneous as a matter of law. Id. at 23-30.
A. Rule 60
Federal Rule of Civil Procedure 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
To prevail on a motion under Rule 60(b), “a party must demonstrate (1) timeliness, (2) a
meritorious defense, (3) a lack of unfair prejudice to the opposing party, and (4) exceptional
circumstances.” Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, ___ F.3d ___, 2017 WL
2507729, at *2 (4th Cir. June 12, 2017).
Pertinent to the case sub judice, Rule 60(b)(4) permits a court to relieve a party from a
final judgment if “the judgment is void.”
Id. An order is “void” only if the court lacked
personal or subject matter jurisdiction or acted contrary to due process of law. Wells Fargo,
2017 WL 2507729, at *2.
Notably, Rule 60(b) “does not authorize a motion merely for reconsideration of a legal
issue.” United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982). “Where the motion is
nothing more than a request that the district court change its mind . . . it is not authorized by Rule
60(b).” Id. at 313. And, “‘[i]t is a well settled principle of law that a Rule 60(b) motion seeking
relief from a final judgment is not a substitute for a timely and proper appeal.’” Wells Fargo,
2017 WL 2507729, at *3 (citing Dowell v. State Farm Fire and Cas. Auto Ins. Co., 993 F.2d 46,
48 (4th Cir. 1993)) (alteration added).
Moreover, a party “must make a Rule 60(b) motion ‘within a reasonable time,’ Fed. R.
Civ. P. 60(c)(1), and ‘the movant bears the burden of showing timeliness.’” Wells Fargo, 2017
WL 2507729, at *3 (quoting Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016), cert. denied
sub nom. Moses v. Thomas, ___ U.S. ___, 137 S. Ct. 1202 (2017)). In particular, Rule 60(c)(1),
titled “Timing”, provides: “A motion under Rule 60(b) must be made within a reasonable
time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or
order or the date of the proceeding.” (Emphasis added).
Wright and Miller explain: “What constitutes reasonable time necessarily depends on the
facts in each individual case.” C. Wright & A. Miller, Federal Practice and Procedure, § 2866
(3d ed.). Further, the authors state, id.: “The courts consider whether the party opposing the
motion has been prejudiced by the delay in seeking relief and whether the moving party had
some good reason for the failure to take appropriate action sooner.”
The Fourth Circuit’s recent opinion in Wells Fargo, 2017 WL 2507729, provides
guidance. In that case, the United States Bankruptcy Court for the Eastern District of North
Carolina entered an order according PNC Bank (“PNC”) priority over a deed of trust held by
Wells Fargo Bank, N.A. (“Wells Fargo”). Id. at 1. After the bankruptcy case concluded in 2013,
PNC foreclosed on the property at issue. Id. at 2. Two years after the bankruptcy court issued its
order regarding the deed of trust, Wells Fargo moved to set aside that order, pursuant to Fed. R.
Civ. P. 60(b)(4) and 60(b)(6). Id. The bankruptcy court denied Wells Fargo’s motion, inter alia,
on the ground that the motion was untimely. Id. Wells Fargo appealed and the district court
affirmed on the basis that the judgment was not void under Rule 60(b)(4). Id. The district court
further determined that Wells Fargo was not entitled to relief under Rule 60(b)(6) because the
motion was untimely. Id. Wells Fargo then appealed to the Fourth Circuit. Id.
In conducting its review, the Fourth Circuit identified instances in which delays were
found to be justified. Id. at *3. For example, it pointed to the Supreme Court’s decision in
Klapprott v. United States, 335 U.S. 601, 69 (1949), where the Supreme Court determined that a
prisoner’s four-year gap in moving for reconsideration was timely because the prisoner “faced
significant obstacles to the protection of his interests: he was in prison, ill, and without funds to
obtain counsel.” Wells Fargo, 2017 WL 2507729, at *3. And, the Fourth Circuit also looked to
the First Circuit’s decision in Bouret-Echevarria v. Caribbean Aviation Maintenance Corp., 784
F.3d 37 (1st Cir. 2015), in which the First Circuit “found that a three-and-a-half-month delay
following notice was reasonable given the appellants’ ‘diligent efforts to strengthen the basis for
their motion’ during that time.”
Wells Fargo, 2017 WL 2507729, at *3 (quoting Bouret-
Echevarria, 784 F.3d at 44).
By contrast, the Fourth Circuit determined that Wells Fargo’s two year delay in moving
to set aside a bankruptcy court’s order was untimely. It reasoned: “At every critical juncture,
Wells Fargo slept on its rights.” Wells Fargo, 2017 WL 2507729, at *3. Notably, the Court
observed that Wells Fargo “did not appeal the Order before the bankruptcy proceeding
B. Standard of Review
In general, the standard of review of a bankruptcy appeal in district court is the same
standard used when an appellate court reviews a district court proceeding. See 28 U.S.C.
§ 158(c)(2) (providing that a bankruptcy appeal “shall be taken in the same manner as appeals in
civil proceedings generally are taken to the courts of appeals from the district courts . . . .”); see
also In re Health Diagnostic Lab., Inc., 15-32919-KRH, 2017 WL 2129849, at *2 (E.D. Va. May
16, 2017) (citing 28 U.S.C. § 158(c)(2)); Conrad v. Schlossberg, 555 B.R. 514, 515–16 (D. Md.
2016) (same); Craddock Washabaugh v. Miller, No. 1:16CV694, 2016 WL 4574690, at *1
(M.D.N.C. Sept. 1, 2016) (same). “On an appeal the district court or bankruptcy appellate panel
may affirm, modify, or reverse a bankruptcy court's judgment, order, or decree or remand with
instructions for further proceedings.” Harman v. Levin, 772 F.2d 1150, 1153 n.3 (4th Cir. 1985)
(internal quotations omitted); see also In re LightSquared, Inc., 534 B.R. 522, 525 (S.D.N.Y.
2015) (recognizing, inter alia, the district court's power to remand with instructions for further
The district court reviews the bankruptcy court's findings of fact under the “clear error”
standard. In re Taneja, 743 F.3d 423, 429 (4th Cir. 2014); Mort Ranta v. Gorman, 721 F.3d 241,
250 (4th Cir. 2013). A finding of fact is clearly erroneous when the record demonstrates
convincingly to the reviewing court that “a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); see, e.g., Andrews v. America’s Living Centers, LLC,
827 F.3d 306, 312 (4th Cir. 2016); United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012). The
bankruptcy court's conclusions of law are subject to de novo review. In re Taneja, 743 F.3d at
429; In re Kirkland, 600 F.3d 310, 314 (4th Cir. 2010); In re Biondo, 180 F.3d 126, 130 (4th Cir.
The abuse of discretion standard is ordinarily applicable to the review of a bankruptcy
court’s denial of a motion made under Fed. R. Bankr. P. 9024 and Rule 60(b). See Wells Fargo,
2017 WL 2507729, at *2. But, in considering whether a judgment is void under Rule 60(b)(4),
the standard of review is de novo. See United States v. Shakoor, 612 Fed. App'x 693, 694 (4th
Cir. 2015) (per curiam); Compton v. Alton S.S. Co., 608 F.2d 96, 107 (4th Cir. 1979) (“We are
mindful that ordinarily the denial by the district court of a motion to vacate a judgment under
60(b) on any ground other than that the judgment is void as a matter of law may only be
reversed for abuse of discretion.”) (emphasis added); see also, e.g., Montes v. Janitorial
Partners, Inc., ___ F.3d ___, 2017 WL 2602825, at *3 (D.C. Cir. June 16, 2017); De Gazelle
Grp., Inc. v. Tamaz Trading Establishment, 817 F.3d 747, 748 (11th Cir. 2016); Brumfield v.
Louisiana State Bd. of Educ., 806 F.3d 289, 296 (5th Cir. 2015); Fid. Nat. Fin., Inc. v. Friedman,
803 F.3d 999, 1001 (9th Cir. 2015); AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 420, 424 (1st
Cir.), cert. denied, 136 S. Ct. 535 (2015).
In conducting its review of the bankruptcy court’s ruling on a motion to vacate, the
district court does not “review the merits of the underlying order but rather only whether the
movant satisfied the requirements for Rule 60(b) relief.” Wells Fargo, 2017 WL 2507729, at *2
(citing MLC Auto., LLC, 532 F.3d at 277). And, a reviewing court is not limited to the grounds
on which the court below based its ruling. Lawson v. Union Cnty. Clerk of Ct., 828 F.3d 239,
248 (4th Cir. 2016). Rather, a reviewing court may affirm “‘on any basis fairly supported by the
record.’” Id. (quoting Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 2002)).
On review, I must determine whether Judge Gordon erred or abused his discretion in
denying Myers’s Motion to Reconsider (ECF 2-25; ECF 2-27) and his Motion to Vacate. ECF
2-26; ECF 2-28.
A. Motion to Reconsider
As noted, Myers filed a Motion to Reopen the bankruptcy case, pursuant to 11 U.S.C. §
350(b) and Fed. R. Bankr. P. 5010. ECF 2-19. Judge Gordon denied the Motion to Reopen.
ECF 2-24. That led Myers to file the Motion to Reconsider (ECF 2-25), which appears to have
been filed pursuant to Fed. R. Bankr. P. 9024 and Fed. R. Civ. P. 60(b)(4). Judge Gordon denied
that motion. ECF 2-27.
Myers filed his Motion to Reconsider just over four months after Judge Gordon issued his
order denying the Motion to Reopen. See ECF 2-25; ECF 2-27. Although the four month gap
may be indicative of some delay, such delay appears excusable given the circumstances of this
case and the fact that plaintiff is self-represented.
In his Brief, Myers contends that Judge Gordon erred in denying the Motion to
Reconsider because, in his view, Fed. R. Bankr. P. 9014(d) required the bankruptcy court to hold
a hearing on the motion and no hearing was held. ECF 4 at 22. In particular, Myers contends
that inherent in the Motion to Reopen, and thus the Motion for Reconsider, was an “unresolved
disputed issue of fact” concerning “the lack of Notice provided by the Court.” Id. Myers asks,
rhetorically, id.: “Without holding an oral hearing on the matter, how did the Court resolve this
In my view, the bankruptcy court did not err in denying the Motion for Reconsider.
Section 350 of 11 U.S.C. governs the closing and reopening of bankruptcy cases. It
(a) After an estate is fully administered and the court has discharged the trustee,
the court shall close the case.
(b) A case may be reopened in the court in which such case was closed to
administer assets, to accord relief to the debtor, or for other cause.
And, Fed. R. Bankr. P. 5010 implements § 350. Rule 5010 provides:
A case may be reopened on motion of the debtor or other party in interest
pursuant to § 350(b) of the Code. In a chapter 7, 12, or 13 case a trustee shall not
be appointed by the United States trustee unless the court determines that a trustee
is necessary to protect the interests of creditors and the debtor or to insure
efficient administration of the case.
Various courts have held that a motion to reopen a bankruptcy case is inappropriate under
§ 350(b) and Rule 5010 where the case was dismissed, rather than closed under § 350(a). See In
re Bowman, 526 B.R. 802, 804 (8th Cir. BAP 2015) (“‘[A] dismissed case cannot be reopened
under § 350(b)[.]’”) (citation omitted); In re Income Prop. Builders, Inc., 699 F.2d 963, 965 (9th
Cir. 1982) (“The word ‘reopened’ used in Section 350(b) obviously relates to the word ‘closed’
used in the same section. In our opinion a case cannot be reopened unless it has been closed.”);
see also COLLIER
BANKRUPTCY (16th ed.) (“Collier”), § 9-5010.01 (observing that various
courts have concluded that “a dismissed case could not be reopened under section 350(b)”). The
Eighth Circuit Bankruptcy Appellate Panel has said: “[A] dismissal can be undone only through
an appeal or a motion under Federal Rule of Bankruptcy Procedure 9023 or 9024.” In re Finch,
378 B.R. 241, 246 (B.A.P. 8th Cir. 2007), aff'd, 285 Fed. App'x 326 (8th Cir. 2008).
This case was dismissed; it was not closed under § 350(a). Thus, the motion to reopen
was inappropriate. It follows that Judge Gordon did not err or abuse his discretion in denying
reconsideration of that motion.
Even if a motion to reopen under § 350 and Rule 5010 is appropriate in the context of a
dismissed bankruptcy case, Judge Gordon did not err or abuse his discretion by failing to hold a
hearing, either on the Motion to Reopen or the Motion to Reconsider. Fed. R. Bankr. P. 9014
governs “Contested Matters.” Rule 9014(a) provides, id.: “In a contested matter not otherwise
governed by these rules, relief shall be requested by motion, and reasonable notice and
opportunity for hearing shall be afforded the party against whom relief is sought.” As explained
by Collier, “Section 105 gives the bankruptcy court the power to fill in gaps and further the
statutory mandates of Congress in an efficient manner.” 2-105 Collier ¶ 105.01
Contrary to appellant’s argument, Rule 9014(a) does not apply to motions to reopen. The
Bankruptcy Appellate Panel for the Eighth Circuit considered this precise question in In re
Bowman, 526 B.R. at 804.
In Bowman, as here, the debtors/appellants argued that the
bankruptcy court erred by denying their motion to reopen the case without a hearing. Id. The
Bowman Court stated that “[t]he bankruptcy court was under no obligation” to hold a hearing.
Id. It pointed out that Rule 9014(a) applies where there is a contested matter not otherwise
governed by the rules, but that “a motion to reopen is ‘otherwise governed’ by another of ‘these
rules,’ i.e., Federal Rule of Bankruptcy Procedure 5010.” And, it said: “‘There is no requirement
in § 350 that the court provide a hearing on a motion to reopen.’” Id. at 804-05 (quoting In re
Canal Street Ltd. P’Ship, 269 B.R. 375, 380 (8th Cir. BAP 2001)) (alteration added). Similarly,
in In Re Canal Street Ltd. P’Ship, 269 B.R. 375, the Eighth Circuit Bankruptcy Appellate Panel
explained: “When Congress intended to require ‘notice and a hearing’ in the Bankruptcy Code, it
clearly knew how to do so. There are multiple instances throughout the Code where Congress
expressly directs that ‘notice and a hearing’ are required.
Unfortunately for the
Creditor, § 350 is not one of them.” Id. at 380.
In view of the foregoing, I am satisfied that the bankruptcy court did not err or abuse its
discretion in denying the Motion for Reconsider without a hearing. Accordingly, I shall affirm
the Order (ECF 2-27) of the bankruptcy court denying the Motion for Reconsider.
B. Motion to Vacate
Myers challenges the order of the bankruptcy court (ECF 2-28) denying his Motion to
Vacate. ECF 2-26. As indicated, the Motion to Vacate, filed in December 2016, pertained to the
dismissal of the underlying bankruptcy case in January 2011. The Motion to Vacate was filed
pursuant to Fed. R. Bankr. P. 9024 and Fed. R. Civ. P. 60(b)(4).
Judge Gordon issued his amended order dismissing the case on January 28, 2011. ECF
2-15. Myers did not move to reopen the case until July 1, 2016 (ECF 2-19), and did not file the
Motion to Vacate until December 13, 2016. ECF 2-26. Even using the date of the Motion to
Reopen, Myers waited nearly five and one half years before beginning the process of seeking
relief under Rule 60(b)(4). Moreover, Myers failed to provide any excuse for his substantial
delay. See ECF 2-26.
From my review, the only discernable reason for the delay is that Myers was involved in
litigation in State court, challenging the foreclosure of his properties. See ECF 4 at 18. See
Myers v. Katz, No. 1091, Sept. Term 2014, 2015 WL 6157305 (Md. Ct. Spec. App. Oct. 19,
2015); Myers v. Katz, No. 1058 and No. 2637 Sept. Term 2011 (Md. Ct. Spec. App. June 4,
2013). As I see it, the bankruptcy court did not err or abuse its discretion in denying the Motion
to Vacate because the motion was untimely. See Wells Fargo, 2017 WL 2507729, at *2.
In McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991), the Fourth
Circuit said: “We have held on several occasions that a Rule 60(b) motion is not timely brought
when it is made three to four months after the original judgment and no valid reason is given for
the delay.” See United States v. Johnson, 668 Fed. App'x 450, 451 (4th Cir. 2016) (per curiam)
(citing McLawhorn favorably). And in Moses, 815 F.3d at 166, the court observed that a delay
of two and one half years and a separate delay of fifteen months “would be inordinate under
The Fourth Circuit and other courts of appeals have determined that it was not an abuse
of discretion for a judge to deny a motion under 60(b) as untimely even when those motions
were made far earlier than Myers’s Motion to Vacate. See, e.g., Danielson v. Human, ___ Fed.
App’x ___, 2017 WL 544587, at *1 (4th Cir. Feb. 10, 2017) (“We conclude that the district court
did not abuse its discretion in finding that [defendant’s] Rule 60(b) motion, filed more than 2
years after entry of judgment and more than 10 months after an enforcement action was filed,
was untimely.”); Trade Well Int'l v. United Cent. Bank, 825 F.3d 854, 861 (7th Cir. 2016)
(affirming district court’s ruling that a pro se party’s five month delay in moving to vacate a
judgment was untimely under Rule 60(b)); Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d
204, 211 (5th Cir. 2003) (affirming district court’s finding that a Rule 60(b) motion was untimely
because the moving party offered “no plausible excuse for ignoring the judgment of the district
court . . . for some fourteen months . . . .”); Nat'l Org. for Women v. Operation Rescue, 47 F.3d
667, 668 (4th Cir. 1995) (affirming district court’s ruling that a Rule 60(b) motion was untimely
because it was filed “over a year after the event giving rise to the motion.”).
As a self-represented litigant, Myers is not held to the same standard as an attorney. See
generally Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, in view of his five-year delay in
attempting to reopen the case to move for Rule 60(b) relief, it is reasonable to conclude that
“Myers slept on[his] rights.” See Wells Fargo, 2017 WL 2507729, at *3. Among other things,
Myers could have pursued a direct appeal after Judge Gordon issued his orders in 2010 or 2011,
or moved for reconsideration in 2011. See id. Notably, Myers knew about the notice issues by
February 2011, when he orally moved for reconsideration before the bankruptcy court. Yet, he
failed to note an appeal.
Given Myers’s substantial and unjustified delay of more than five years in seeking relief,
Judge Gordon did not err or abuse his discretion in denying the Motion to Vacate.
The bankruptcy court did not err or abuse its discretion in denying the Motion to Reopen
or the Motion to Vacate. Accordingly, I shall AFFIRM the rulings of the bankruptcy court.
An Order follows, consistent with this Memorandum Opinion.
Date: June 30, 2017
Ellen L. Hollander
United States District Judge
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