Robinson v. Roberts & Stevens, P.A.

Filing 9

ORDER denying 7 Motion for Reconsideration ; denying 8 Amended Motion for Reconsideration. Signed by District Judge Martin Reidinger on 5/17/11. (Pro se litigant served by US Mail.)(nll)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10cv226

In re: ALAN LEWIS ROBINSON,

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Debtor.
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_______________________________ )
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ALAN LEWIS ROBINSON,
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Appellant,
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vs.
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ROBERTS & STEVENS, P.A.,
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Appellee.
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_______________________________ )

Bankruptcy Case
No. 09-11109

ORDER

THIS MATTER is before the Court on the Debtor’s request for
reconsideration of this Court’s Order denying his request for an interlocutory
appeal [Doc. 7] and the Debtor’s “Response and Motion for Amendment to the
Order,” which seeks reconsideration of the Court’s Order based on allegedly
new evidence [Doc. 8].
The Court construes the Debtor’s filings as requests for rehearing under
the Federal Rules of Bankruptcy Procedure. Specifically, Rule 8015 provides
that “a motion for rehearing may be filed within 14 days after entry of the

judgment of the district court . . . .” Fed. R. Bankr. P. 8015. Because Rule
8015 fails to specify a standard of review for rehearing motions, courts
generally look to Rule 40 of the Federal Rules of Appellate Procedure for
guidance. See In re Lee, 432 B.R. 212, 216 (D.S.C. 2010). That Rule
provides, in pertinent part, that a “petition [for rehearing] must state with
particularity each point of law or fact that the petitioner believes the court has
overlooked or misapprehended and must argue in support of the petition.”
Fed. R. App. P. 40(a)(2).
In seeking reconsideration, the Debtor first argues that the Order should
be corrected to reflect that he did, in fact, pay the entirety of the required filing
fee. [Doc. 7 at 2]. As previously noted, the Bankruptcy Court record indicates
that the Bankruptcy Clerk received only $200 of the $255 filing fee required
for the appeal. The Debtor has not identified anything in the record to the
contrary, nor has he produced any evidence to show that the remaining $55
was paid. The Debtor’s request for correction of the Court’s Order, therefore,
is denied.1
The Debtor also contends that the Trustee’s failure to file a brief in
response to his appellate brief should have resulted in a “default” against the

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Whether or not the Debtor paid the entire filing fee is a moot point, however,
because despite the Debtor’s apparent failure to pay the full filing fee, the Court
proceeded to address his appeal on the merits.
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Trustee and in an automatic reversal of the Bankruptcy Court’s Order. [Doc.
8 at 16]. This argument is entirely without merit. The filing of appellate briefs
in a bankruptcy appeal is non-jurisdictional, and the Federal Rules of
Bankruptcy Procedure provide no sanction for an appellee’s failure to timely
file such a brief. See In re Harris, No. 96-2505, 1997 WL 712940, at *1 (4th
Cir. Nov. 17, 1997). The decision to sanction an appellee for failing to file a
timely brief is a matter entirely within the discretion of the district court. Id. at
*2. In its discretion, the Court declines to sanction the Trustee in the manner
urged by the Debtor.
Finally, the Debtor attempts to reargue his contentions that the
Bankruptcy Court erred in converting his Chapter 13 case to a Chapter 7 and
in denying his motion for voluntary dismissal. [Docs. 7-1, 7-2, 8]. A motion
for rehearing, however, “is not a means by which to reargue a party’s case or
to assert new grounds for relief.” In re Zegeye, No. Civ. A. DKC 2004-1387,
2005 WL 544763, at *2 (D. Md. Mar. 4, 2005) (citations omitted).
Having considered the Debtor’s arguments, the Court finds no point of
law or fact that was overlooked or misapprehended. Accordingly, the Debtor’s
motions for reconsideration, which the Court construes as motions for
rehearing, are denied.

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IT IS, THEREFORE, ORDERED that the Debtor’s motions for
reconsideration [Docs. 7, 8] are DENIED.
IT IS SO ORDERED.
Signed: May 17, 2011

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