Max E. Salas

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S. Martin Teel, Jr.

United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF COLUMBIA

In re )

)

MAX E. SALAS, ) Case No. 18-00260

) (Chapter 11)

Debtor. )

MEMORANDUM DECISION AND ORDER RE MOTION FOR RECONSIDERATION

This addresses the Motion for Reconsideration’ filed on

March 6, 2020, by Nicolaas J. Brekelmans and Gail Gregory

Brekelmans, Trustees of the Estate of Nina Brekelmans, and

Michael McLoughlin and Martha Johnson, Trustees of the Estate of

Michael Patrick McLoughlin (collectively “the judgment

' The full title of the Motion for Reconsider (Dkt. No.

321) is:

Motion for Reconsideration Based Upon the Order Remanding

the District Court Appeal of This Court's Memorandum and

Order (September 25, 2018) Overruling the Movants'

Objections to the Debtor's Claim of a Homestead Exemption

of the Property Located at 1610 Riggs Place, Nw,

Washington, DC and Request for a Hearing Thereon. (Dkt.

No. 321) filed on March 6, 2020, by Nicolaas J.

Brekelmans and Gail Gregory Brekelmans, Trustees of the

Estate of Nina Brekelmans ("Brekelmans Plaintiffs"), and

Michael McLoughlin and Martha Johnson, Trustees of the

Estate of Michael Patrick McLoughlin ("McLoughlin

Plaintiffs") (collectively "the judgment creditors").

creditors”). The Motion for Reconsideration seeks to have the

court reconsider its Memorandum Decision and Order re Objection

to Homestead Exemption entered seventeen months previously on

September 25, 2018 (Dkt. No. 108) (“Homestead Decision”).2 The

judgment creditors assert that there is new evidence

demonstrating that the debtor in this case, Max Salas (“Max”),

paid no consideration for the Quitclaim Deed from his youngest

son, Len Salas (“Len”).3 The Homestead Decision found that the

Quitclaim Deed vested Max with title to his homestead (the

“Property”) located at 1610 Riggs Place, NW, Washington, D.C.,

and overruled the judgment creditors’ objection to Max’s

exemption of the Property, an objection asserting that Len, not

Max, owns the Property.

I will deny the Motion for Reconsideration. Relief under

Fed. R. Civ. P. 60(a) is unavailable because the Motion for

Reconsideration challenges the substance of the Homestead

Decision instead of some clerical error. Relief under Fed. R.

Civ. P. 60(b) was sought untimely: relief under Rule 60(b)(1) and

(2) was not sought within one year after entry of the Homestead

Decision and thus is time-barred under Fed. R. Civ. P. 60(c)(1),

and relief under Rule 60(b)(6) was not sought for seventeen

2 The Homestead Decision was signed on September 24, 2018,

but not entered until the next day.

3 I will refer to the debtor and his family members by

their first names for ease of discussion.

2

months, which was not within a reasonable time as required by

Rule 60(c)(1). The pendency of an appeal of the Homestead

Decision and the filing in the appeal of a motion to remand to

the Bankruptcy Court had no effect on the timeliness requirements

of Rule 60(c)(1) regarding Rule 60(b) motions. In any event,

even disregarding the untimeliness in seeking Rule 60(b) relief,

the Motion for Reconsideration presents inadequate grounds for

relief from the Homestead Decision (including, for example, the

fact that Rule 60(b)(6) relief is barred because it seeks relief

on grounds already covered by Rules 60(b)(1) and 60(b)(2)).

Finally, because relief could have been sought under Rule 60(b),

the Motion for Reconsideration does not present grounds as an

independent action under Fed. R. Civ. P. 60(d)(1) that warrant

relief.

I

PROCEDURAL HISTORY

A. Events Leading to the Homestead Decision

On June 3, 2015, Michael Patrick McLoughlin and Nina

Brekelmans, two roomers at the Property, were killed in a fire at

the Property. The judgment creditors are the parents of

McLoughlin and Brekelmans. As personal representatives of their

children’s estates they brought actions in the Superior Court of

the District of Columbia (respectively the McLoughlin plaintiffs

in Case No. 2015 CA 008054 B and the Brekelmans plaintiffs in

3

Case No. 2015 CA 008061 B), pursuing wrongful death and

survivorship claims against both Max and his youngest son, Len.

On April 4, 2018, the McLoughlin plaintiffs and the Brekelmans

plaintiffs obtained jury verdicts in the Superior Court of $7.7

million and $7.5 million, respectively, against Max and Len,

jointly and severally. On April 18, 2018, Max filed a petition

commencing this case under Chapter 11 of the Bankruptcy Code (11

U.S.C.) and Len filed a petition in the United States Bankruptcy

Court for the Middle District of Tennessee (Case No.

3:18-bk-02662) commencing his own case under chapter 11 of the

Bankruptcy Code.

Max claimed an exemption on the Property pursuant to the

District of Columbia’s homestead exemption found in D.C. Code

§ 15-501(a)(14). The judgment creditors timely objected to that

exemption, asserting that Len, not Max, owned the Property. The

Bankruptcy Court held a trial on the objection to the homestead

exemption for three days (on August 23, 24, and 25, 2018). The

Homestead Decision, entered on September 25, 2018, confirmed that

Max possessed the full legal and equitable interest to the

Property and overruled the objection to the homestead exemption.

The Motion for Reconsideration was filed more than seventeen

months later on March 6, 2020.

4

B. Pertinent Aspects of the Homestead Decision and in

Particular the Issue of Consideration for the July 6,

2010 Transfer of Title to Max

The Homestead Decision included the following findings of

fact. Max and his wife, Vickie, as joint owners of the Property,

entered to a divorce agreement whereby Vickie would be paid for

her interest via a loan secured by the Property but with Len

being the borrower (because Max had a bad credit history). The

intent of the divorce agreement was accomplished on April 16,

2007, by Vickie transferring her interest to Max, and then Max

transferring the Property to Len (for a recited consideration of

$10), who then obtained a loan, secured by deed of trust on the

Property, to fund the payment to Vickie under the divorce

agreement. Even though Len was the owner of record in the land

records, Len and Max agreed that the Property would, in

actuality, remain Max’s home. Len treated Max as the real owner

of the Property. Max and Len agreed that Max would make the

mortgage payments even though only Len was an obligor on the note

secured by the deed of trust. Over the years, Max alone made

monthly mortgage payments, occasionally missing payments. Len

made none of the payments, even though he received communications

from SunTrust whenever a payment was missed. Similarly, using

bank accounts over which he had control, Max has paid for all

other expenses associated with the Property, including amounts

incurred for utilities, real property taxes, insurance,

5

maintenance, and general upkeep. Accounts for expenses

associated with the Property have been established in Max’s name,

including all electric and water utility accounts, cable and

internet accounts, and a Deluxe-Home insurance policy for the

Property with Encompass Insurance Company of America.

On July 6, 2010, Len and Max executed an Irrevocable Trust

Agreement and a Quitclaim Deed attempting to transfer ownership

of the Property to a trust of which Max would be both the trustee

and the beneficiary. The trust was invalid (for reasons explored

in the Homestead Decision). However, in the District of

Columbia, “the conveyance of property through an invalid trust

results in a resulting trust, unless there is consideration, in

which case, the legal and beneficial rights are conveyed to the

intended beneficiary of the conveyance.” Homestead Decision at

54 (citations omitted).

The Homestead Decision then addressed the issue of whether

there had been consideration. The Quitclaim Deed recited that

the transfer was made by Len “for good consideration and for the

sum of $100.00 paid by [Max], the receipt whereof is hereby

acknowledged.” The Homestead Decision stated:

The court finds that $100 was valuable consideration,

even though $100 is a nominal amount when considered

against the value of the Property, because Len paid

consideration of $10 when Max deeded the Property to Len

in 2007. In effect, Len purchased the Property for $10

in 2007 and sold the Property for $100 three years later

in 2010.

6

Additionally, while the mortgage was in Len’s name,

Max made all payments on the mortgage, and there was an

agreement between Len and Max that Max would take Len’s

name off the mortgage when Max was able to refinance the

Property on his own credit. Moreover, Max paid all

bills, taxes, and other expenses related to the Property,

and maintained and kept up the Property. Len put no

investment into the Property, and got more out of the

Property than he put into it. Accordingly, the court

finds that there was valuable consideration.

Homestead Decision at 54-55 (emphasis added).

C. The Appeal and the Disposition of the Judgment Creditors’

District Court Motion Seeking to Supplement the Record

With Three Transcripts or to Remand to the Bankruptcy

Court for Consideration of the Three Transcripts

On October 8, 2018, the judgment creditors timely filed a

notice of appeal regarding the Homestead Decision, and the appeal

was docketed in the District Court as Civil Action No. 18-cv-2318

(the “Appeal”). Full briefing of the issues presented in the

Appeal was completed in February 2019. (See Appeal Dkt. Nos. 6,

8, and 11).

Meanwhile, after entry of the Homestead Decision, the

judgment creditors were of the view that they had not been given

fair notice before or during the homestead exemption trial that

an issue regarding the ownership of the Property would be whether

Max had provided consideration for the transfer under the

Quitclaim Deed. In order to pursue the issue of consideration in

more depth, the judgment creditors could have filed a motion

seeking a new trial under Fed. R. Civ. P. 59(a), or a motion for

relief from the Homestead Decision under Fed. R. Civ. P. 60(b)(1)

7

based on excusable neglect, or a motion to depose Max and Len on

the consideration issue pending the appeal. They did not need to

obtain evidence from Max or Len before filing such a motion.

Upon filing such a motion, they could have asked the District

Court to put the appeal on hold pending disposition of the

motion.

Instead of acting promptly, and availing themselves of their

existing remedies in this bankruptcy case, Max’s bankruptcy case,

they decided they would attempt to obtain further testimony from

Max and Len in Len’s bankruptcy case to buttress their positions

regarding the homestead exemption. They examined Max and Len in

Len’s own bankruptcy case, obtaining three transcripts of

testimony months after the Homestead Decision was entered.

To elaborate, on December 12 and 13, 2018, a hearing was

held in Len’s bankruptcy case regarding a motion to convert Len’s

case from Chapter 11 to Chapter 7 of the Bankruptcy Code or,

alternatively, to appoint a Chapter 11 trustee.4 Max and Len

testified at that hearing. On the issue of consideration for the

transfer incident to the trust documents (consisting of the

Irrevocable Trust Agreement and a Quitclaim Deed), Len testified

as follows on December 13, 2018:

Q When you -- when your brother created the trust

4 On December 20, 2018, an order was entered converting

Len’s bankruptcy case from Chapter 11 to Chapter 7 of the

Bankruptcy Code.

8

documents, did your father pay any money to you?

A No.

Q Did he give you any other consideration? Did he

give you any property, any personal property, or

anything like that?

A No.

Tr. (Dkt. No. 370-2) at 68-69. The transcripts of the testimony

of Max and Len on December 12 and 13, 2018, otherwise contain

testimony that merely elaborated on subjects as to which Max and

Len had already testified in the homestead exemption trial.5

Despite learning on December 13, 2018, that $100 had not

been paid at the time the Quitclaim Deed was executed,6 the

judgment creditors neglected for more than a year after December

13, 2018, to seek relief in the Bankruptcy Court based on that

fact. Their Motion for Reconsideration was not filed in the

Bankruptcy Court until March 6, 2020, fourteen months and

eighteen days later. A transcript of Len’s testimony of December

5 For example, Max testified at the trial regarding his

being the only person making payments on the Property’s mortgage

both before and after the transfer under the Quitclaim Deed. The

record reflected that sometimes Max did not make monthly mortgage

payments. That issue of whether all monthly mortgage payments

were made was rehashed in the examination of Max on December 12,

2018.

6 As noted earlier, the recitation in the Quitclaim Deed

was more extensive than that, stating that the transfer was “for

good consideration and for the sum of $100.00 paid by [Max], the

receipt whereof is hereby acknowledged.”

9

13, 2018, was not needed to seek Rule 60(b)(2) relief in the

Bankruptcy Court. Max could not dispute that Len had testified

on December 13, 2018, that he did not pay Len anything when the

trust documents were created, and if he did raise such a dispute,

transcripts could have then been furnished to the Bankruptcy

Court. Even if a transcript of that testimony was necessary

before a Rule 60(b)(2) motion could be filed, the judgment

creditors engaged in unreasonable delay by not ordering a

transcript until February 1, 2019. Nothing in the record

explains that 50-day delay in ordering the transcript.

The transcripts of Max’s and Len’s testimony of December 12

and 13, 2018, were filed in Len’s bankruptcy case on February 11,

2019. With the transcript of Len’s testimony of December 13,

2018, in hand, the judgment creditors had transcript evidence (if

transcript evidence was necessary, which it was not) with which

they could have sought Rule 60(b)(2) relief in the Bankruptcy

Court. But after the transcripts were filed in Len’s bankruptcy

case, the judgment creditors delayed for more than a year (until

March 6, 2020) to seek Rule 60(b) relief based on the

transcripts.

The judgment creditors’ attorney represents that he thought

that Len’s testimony on December 13, 2018, had included more

extensive testimony about the issue of consideration received by

Len, and that, to his surprise, the transcript did not include

10

any such more extensive testimony. The judgment creditors’

attorney knew that he would have a further opportunity to examine

Len at the meeting of creditors to be held in Len’s bankruptcy

case under 11 U.S.C. § 341 as a result of the conversion of the

case to Chapter 7. The judgment creditors’ attorney examined Len

again at the meeting of creditors on April 1, 2019. The six

pages of Len’s testimony contained in the transcript reveal that

Len testified that he did not receive $100 or anything else from

Max at the time he executed the Quitclaim Deed, essentially

repeating his testimony of December 13, 2018, on that score,7 and

not garnering any meaningful additional new evidence.

Accordingly, the long inaction after December 13, 2018, in

seeking any Rule 60(b)(2) relief based on alleged “new evidence”

that $100 had not been paid for the transfer under the Quitclaim

7 On April 1, 2019, Len testified:

Q. All right. Skipping forward to the date of the

trust and quit claim deed, which was in July of 2010,

did your father make any payments to you at that time?

A. No.

Q. Did he give you any property at that time?

A. No.

Q. Did he give you anything of value in or about

july of 2010, at the time of the irrevocable trust?

A. No.

Tr. (Dkt. No. 370-3) at 6-7.

11

Deed was not reasonable: a transcript of Len’s testimony of

December 13, 2018 (if required, which it was not) could have been

ordered promptly (which it was not); a Rule 60(b)(2) motion could

have been filed within a few short weeks after December 13, 2018;

it was not necessary to examine Len anew on April 1, 2018; and,

in any event, many more months of unreasonable delay ensued after

April 1, 2018. In short, Rule 60(b) relief was not sought in the

Bankruptcy Court within a reasonable time.

The judgment creditors’ attorney received a transcript of

Len’s testimony of April 1, 2019, in the later half of April

2019.8 On May 13, 2019, a full five months after Len testified

on December 13, 2018, the judgment creditors filed in their

District Court appeal a motion (“Motion to Supplement or

Remand”)9 (D. Ct. Dkt. No. 17), that included reliance on Len’s

testimony of December 13, 2018. The Motion to Supplement or

Remand sought to supplement the record on appeal with the three

transcripts of testimony (the transcript of the testimony of Max

8 The transcript is not signed by the court reporter and

does not bear a date of its preparation. However, Max has not

challenged the accuracy of the transcript.

9 The District Court Motion was titled:

Motion of the Appellants to Supplement the Record on

Appeal, or Alternatively, to Remand this Case to the

Bankruptcy Court for Further Findings of Fact Concerning

the Alleged Transfer of 1610 Riggs Place, NW from Len

Salas To Max Salas Through a Quitclaim Deed Dated on or

about July 6, 2010.

12

on December 12, 2018, and the transcripts of Len on December 13,

2018, and April 1, 2019) and sought, in the alternative, a remand

to the Bankruptcy Court.

In seeking to supplement the record on appeal by adding the

three transcripts, the judgment creditors stated:

9. When discovering new information or evidence

after trial, an Appellant may request the trial Court for

a new trial or to reconsider its decision pursuant to Fed

R. Civ. P. 59 or 60 (Fed. R. Bankr. Proc. 9023 and 9024,

respectively). However, the Bankruptcy Court does not

have jurisdiction because of the Appellants’ timely

appeal. Further, the new information from the Debtor and

his son, was not available to the Appellants until

mid-December, 2018, well after the deadline for filing an

appeal.

The judgment creditors failed to inform the District Court that

the concluding sentence of Fed. R. Bankr. P. 9024 states: “In

some circumstances, Rule 8008 governs post-judgment motion

practice after an appeal has been docketed and is pending.” And

they failed to inform the District Court that, in turn, Rule 8008

recognizes that an appellant may file a timely motion in the

bankruptcy court under Fed. R. Bankr. P. 9023 or 9024 for the

bankruptcy court to grant relief from an order that is the

subject of a pending appeal. The judgment creditors failed to

file a timely motion under Rule 9023 or 9024 in the Bankruptcy

Court.

The Motion to Supplement or Remand, at 7-8, suggested that

as an alternative to supplementing the record on appeal with the

after-acquired transcripts, “remand would be appropriate.”

13

On May 29, 2019, Max filed his opposition to the Motion to

Supplement or Remand. (Appeal Dkt. No. 21). The judgment

creditors did not file a reply. During the pendency of the

Motion to Supplement or Remand, the judgment creditors failed to

file any motion in the Bankruptcy Court under Fed. R. Civ. P.

60(b) to assure that Rule 60(b) relief was pursued within the

deadline set by Rule 60(c)(1) (which requires filing of a Rule

60(b) motion within a reasonable time and, for a motion under

Rule 60(b)(1), (2), or (3), within no later than one year after

entry of the judgment at issue). The one-year anniversary of the

Homestead Decision fell on September 25, 2019. Any later-filed

motion under Rule 60(b)(1), (2), or (3) was untimely.10

On January 2, 2020, the District Court entered its Order

(Appeal Dkt. No. 29) and a Memorandum Opinion (Appeal Dkt. No.

30) disposing of the Motion to Supplement or Remand. The

Memorandum Opinion explained at length why supplementation of the

record on appeal would not be proper under Fed. R. Bankr. P.

8009(e) (dealing with correcting or modifying the record of what

transpired in the bankruptcy court) and why the judgment

10 It has long been recognized that Rule 60(b) relief is

barred if not sought in a timely fashion during a pending appeal.

See Silberline Mfg. Co. v. Int'l Nickel Co., 569 F.2d 1217, 1218

n.1 (3d Cir. 1977), noting its prior suggestion to an appellant,

who had moved for a remand to the district court to consider new

evidence, that it “file a motion in the district court pursuant

to F.R.Civ.P. 60(b) to avoid any problems of laches and the

statute of limitations in seeking such relief.”

14

creditors’ Motion to Supplement or Remand did not represent an

extraordinary circumstance warranting invocation of the Court’s

equitable powers to supplement the record on appeal. Mem. Op. at

3-7.

The Memorandum Opinion (at 7) noted:

[T]he information that Appellants seek to introduce for

the first time on appeal in this case is entirely new and

actually contradicts other evidence in the record. Thus,

in effect, an additional factual dispute among the

parties would be created by the introduction of this new

evidence. And, under 28 U.S.C. § 158(a), this Court is

merely called to exercise appellate jurisdiction over

Judge Teel’s ruling, not to adjudicate any new factual

disputes between the parties. That is precisely why, in

lieu of an appellate court’s supplementing a case with

new evidence, “[n]ormally, supplementation of the record

is effected by remanding the case to the [court below] to

allow that court to order the introduction of new

evidence,” where appropriate. [Citing Colbert v. Potter,

471 F.3d 158, 166 (D.C. Cir. 2006).]

[Emphasis added.] The District Court did not address under what

standards it would be appropriate for the Bankruptcy Court to

15

order the introduction of new evidence.11 As will be seen, in

the absence of fraud on the court,12 the vehicle for determining

whether it is appropriate to order the introduction of new

evidence is a motion under Fed. R. Civ. P. 60(b) or an

independent action in some circumstances under Fed. R. Civ. P.

60(d)(1).

The District Court then stated:

Appellants have requested such a remand as an alternative

to allowing the new evidence to be submitted on appeal

(see Appellants’ Mem. at 10 (asserting that “remand would

be appropriate”), and they have also made clear that they

wish to have the matter sent back to the bankruptcy court

so that the underlying issues pertaining to the new

evidence can be litigated in the first instance before

the bankruptcy court (id. at 7 (suggesting that, if this

appeal was not pending, Appellants would be able to file

11 The Colbert decision, 471 F.3d at 166, cited

Trans–Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d

1022, 1028 (D.C. Cir. 1999), as an appropriate instance of

remanding for the district court to consider new evidence, but

the remand in Trans-Pacific was because the district court had

failed to make a finding of segregability required under the

Freedom of Information Act, thus requiring that the grant of

summary judgment in favor of the Government be reversed. Trans-

Pacific, 177 F.3d at 1029 (reversing and remanding, and citing

other examples, such as National Parks & Conservation Ass’n v.

Morton, 498 F.2d 765, 770-71 (D.C. Cir. 1974), of remands

required because the district court had failed to address a

critical issue).

Here, the Bankruptcy Court did not fail to make any required

finding. Accordingly, the Homestead Decision could not have been

reversed and remanded on that basis, and the District Court had

no basis for requiring the Bankruptcy Court to treat receipt of

the “new evidence” as appropriate.

12 The judgment creditors have not invoked Fed. R. Civ. P.

60(d)(3) (acknowledging a court’s power to “set aside a judgment

for fraud on the court”).

16

a motion for reconsideration or for a new trial in the

bankruptcy court)). Thus, this Court will liberally

construe Appellants’ motion to remand as a motion for

voluntary dismissal of this appeal pursuant to Federal

Rule of Bankruptcy Procedure 8023 to enable the

unencumbered additional litigation that Appellants

envisions. See In re Pawlak, No. 15-cv-2665, ECF No.

11-1 (D. Md. Apr. 22, 2016) (construing an unopposed

motion to remand to supplement the record with additional

evidence as a motion for voluntary dismissal); see also

In re Earth Structures, Inc., No. 7:12-cv-1958, 2013 WL

145033, at *2 (D.S.C. Jan. 14, 2013) (granting opposed

motion to remand in light of “new evidence”).

[Emphasis added.] In short, the District Court’s Memorandum

Opinion decided to dismiss the appeal so that the judgment

creditors could file a motion to reconsider in the Bankruptcy

Court unencumbered by any effect of the pending appeal barring

such a motion. That is precisely what the District Court’s Order

did, stating:

For the reasons stated in the accompanying

Memorandum Opinion, it is hereby

ORDERED that Appellants’ motion to supplement the

record on appeal is DENIED, and Appellants’ alternative

motion to remand (properly construed as a motion to

voluntarily dismiss this appeal) is GRANTED. It is

FURTHER ORDERED that Appellants’ appeal is

DISMISSED.

There was no remand: the District Court construed the motion to

remand as a motion for voluntary dismissal of the appeal, and its

Order did just that: it dismissed the appeal, nothing more,

leaving the judgment creditors to proceed as they saw fit in the

Bankruptcy Court as if the appeal had not been filed.

17

Even if the Order could be treated as remanding the matter

to the Bankruptcy Court, it was a remand “to enable the

unencumbered additional litigation” envisioned by the judgment

creditors (i.e., leaving the judgment creditors “able to file a

motion for reconsideration or for a new trial in the bankruptcy

court” without being barred by the pending appeal from pursuing

such a motion).

Neither the Memorandum Opinion nor the Order provided any

mandate directing the Bankruptcy Court as to what it was to do if

the judgment creditors pursued relief in the Bankruptcy Court.

The District Court left it to the judgment creditors to pursue

relief in the Bankruptcy Court independently after dismissal of

the appeal.

After entry of the District Court’s Memorandum Opinion and

the Order dismissing the appeal on January 2, 2020, the judgment

creditors did not seek reconsideration in the District Court

despite the District Court’s Order having dismissed the appeal in

its entirety. That appears to have eliminated any appellate

rights the judgment creditors had regarding the Homestead

Decision, and to have left them with only appellate rights

regarding any adverse ruling by the Bankruptcy court on any Rule

60(b) motion or Rule 60(d)(1) independent action that the

judgment creditors might pursue. However, as will be seen, any

loss of appellate rights regarding the Homestead Decision does

18

not enhance their rights under Rule 60(b) or Rule 60(d)(1).

Upon the dismissal of the appeal, the appellants already had

in hand the three transcripts they relied upon, and they had

already addressed in the Motion to Supplement or Remand why those

transcripts warranted setting aside the Homestead Decision. Yet,

they waited until March 6, 2020, sixty-four days later, to file

in the Bankruptcy Court their Motion for Reconsideration. That

Motion for Reconsideration was filed over seventeen months after

entry of the Homestead Decision on September 25, 2018, and for

reasons discussed below must be denied as untimely under Fed. R.

Civ. P. 60(c)(1).

II

RELIEF FROM THE HOMESTEAD

DECISION CAN ONLY BE PURSUED VIA FED. R.

CIV. P. 60(b) OR VIA AN INDEPENDENT ACTION

UNDER FED. R. CIV. P. 60(d)(1), AND FED. R. CIV. P.

60(a) IS NOT A BASIS FOR THE RELIEF THE JUDGMENT CREDITORS SEEK

Fed. R. Bankr. P. 9023 makes Fed. R. Civ. P. 59 applicable,

except it changes the deadline for filing a Rule 59 motion to 14

days after entry of the judgment. The judgment creditors did not

file a timely motion under Rule 59 to alter or amend the

Homestead Decision.

The only avenue left was to file a motion under Fed. R. Civ.

P. 60(b) (made applicable in relevant part by Fed. R. Bankr. P.

9024) or an independent action under Fed. R Civ. P. 60(d)(1). As

held in Mahone v. Ray, 326 F.3d 1176, 1181 (11th Cir. 2003), once

19

the time for filing a Rule 59 motion had expired, a final

judgment (like the Homestead Decision):

could properly have been attacked in the [trial court]

only by a motion pursuant to Rule 60(b) or an independent

action. See Hendrick v. Avent, 891 F.2d 583, 588 (5th

Cir. 1990) (“The law and policy surrounding a Rule 60(b)

motion is clear that this motion was intended to be the

only method of attacking a final judgment and not to be

used in abundance.”); Landau & Cleary, Ltd. v. Hribar

Trucking, Inc., 867 F.2d 996, 1002 (7th Cir.1989) (noting

that Rule 60 “forbids motions to obtain relief from a

judgment other than those made under the Federal Rules”

and that aside from Rule 59(e), which is not presently

applicable, the only Rule providing for relief from a

final judgment is Rule 60(b)).

Accordingly, the judgment creditors can obtain relief from the

Homestead Decision only via a motion under Rule 60(b) or via an

independent action.13

The judgment creditors invoke Rule 60(a) as an alternative

basis for relief from the Homestead Decision. However, the

Motion for Reconsideration attacks the substance of the Homestead

13 When Mahone and the decisions it cites were decided, the

final sentence of Rule 60(b) specifically provided that “the

procedure for obtaining any relief from a judgment shall be by

motion as prescribed in these rules or by an independent action.”

That language was eliminated in 2007, but the Advisory Committee

Notes indicated that the changes to Rule 60 “are intended to be

stylistic only” and then clarified that:

The final sentence of former Rule 60(b) said that the

procedure for obtaining any relief from a judgment was by

motion as prescribed in the Civil Rules or by an

independent action. That provision is deleted as

unnecessary. Relief continues to be available only as

provided in the Civil Rules or by independent action.

[Emphasis added.]

20

Decision, and Rule 60(a) is not an avenue for the seeking relief

from a judgment based on substantive errors. As noted in Fanning

v. George Jones Excavating, L.L.C., 312 F.R.D. 238, 239 (D.D.C.

2015):

Rule 60(a) permits a court to “correct a clerical mistake

or a mistake arising from oversight or omission whenever

one is found in a judgment, order, or other part of the

record.” Fed. R. Civ. P. 60(a). The rule’s limitation to

“clerical” mistakes and those arising from “oversight and

omission” means that it cannot be used to change the

substance of an order or judgment. As one leading

treatise puts it, “a motion under Rule 60(a) only can be

used to make the judgment or record speak the truth and

cannot be used to make it say something other than what

originally was pronounced.” 11 Charles Alan Wright et

al., Federal Practice and Procedure § 2854 (3d ed. 2012).

Or in the words of another, “Rule 60(a) applies when the

record indicates that the court intended to do one thing

but, by virtue of a clerical mistake or oversight, did

another.” 12 Moore’s Federal Practice § 60.11[1][a] (3d

ed. 2015).

The judgment creditors’ contention that the Homestead Decision

was in error asserts errors of “substance, not expression,”

putting it outside the scope of Rule 60(a). Fanning, 312 F.R.D.

at 239. See also Jordan v. U.S. Dep't of Labor, 331 F.R.D. 444,

449 (D.D.C. 2019), aff'd sub nom. Jordan v. United States Dep't

of Labor, No. 19-5201, 2020 WL 283003 (D.C. Cir. Jan. 16, 2020).

III

ANY MOTION FOR RELIEF FROM THE HOMESTEAD

DECISION PURSUED BY THE JUDGMENT CREDITORS UNDER

FED. R. BANKR. P. 9024 AND FED. R. CIV. P. 60(b) MUST BE TIMELY

The concluding sentence of Fed. R. Bankr. P. 9024 notes: “In

some circumstances, Rule 8008 governs post-judgment motion

21

practice after an appeal has been docketed and is pending.” Rule

8008 conforms bankruptcy practice to that of Fed. R. Civ. P. 62.1

and Fed. R. App. P. 12.1. Rule 8008 makes clear that after an

appeal has been filed, any Rule 60(b) motion must be timely filed

in the bankruptcy court. Rule 8008 (“Indicative Rulings”)

provides:

(a) RELIEF PENDING APPEAL. If a party files a timely

motion in the bankruptcy court for relief that the court

lacks authority to grant because of an appeal that has

been docketed and is pending, the bankruptcy court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state that the court would grant the

motion if the court where the appeal is pending

remands for that purpose, or state that the motion

raises a substantial issue.

. . .

(c) REMAND AFTER AN INDICATIVE RULING. If the

bankruptcy court states that it would grant the motion or

that the motion raises a substantial issue, the district

court or BAP may remand for further proceedings, but it

retains jurisdiction unless it expressly dismisses the

appeal. If the district court or BAP remands but retains

jurisdiction, the parties must promptly notify the clerk

of that court when the bankruptcy court has decided the

motion on remand.

[Emphasis added.] Accordingly, Rule 8008(a) makes clear that

after an appeal has been pursued, a party seeking under Fed. R.

60(b) to pursue relief from a final order of a bankruptcy court

must timely file that motion in the bankruptcy court.

There are sound reasons for requiring timely filing of the

22

Rule 60(b) motion during the pendency of the appeal. A trial

court and the parties who obtained the ruling being attacked, and

had taken steps based on that ruling, ought not be required to

turn their attention under Rule 60(b) to revisiting a final order

long after the final order was entered. Here, the Motion for

Reconsideration was filed over seventeen months after entry of

the Homestead Decision and in the interim Max had taken many

steps based upon the Homestead Decision.

IV

THE MOTION FOR RECONSIDERATION, AS A RULE 60(b)

MOTION, WAS NOT TIMELY FILED IN THE BANKRUPTCY COURT

With exceptions of no relevance, Fed. R. Bankr. P. 9024

makes Fed. R. Civ. P. 60 applicable to this court’s final orders.

The Motion for Reconsideration seeks relief from the Homestead

Decision based on asserted mistakes in the Homestead Decision and

allegedly newly discovered evidence. The Motion for

Reconsideration can thus be viewed as seeking relief under Rule

23

60(b)(1)14 and Rule 60(b)(2).15 The judgment creditors also rely

on Rule 60(b)(6) (permitting the court to grant relief from a

final judgment based on “any other reason that justifies

relief”).

Under Fed. R. Bankr. P. 60(c)(1), a motion under Rule 60(b)

“must be made within a reasonable time – and for reasons (1),

(2), and (3) no more than one year after the entry of the

judgment or order or the date of the proceeding.” The Motion for

Reconsideration was filed in this court on March 6, 2020,

seventeen months and eleven days after the entry of the Homestead

Decision on September 25, 2018, with the result that Rule

60(b)(1) and Rule 60(b)(2) relief was not sought within one year

after entry of the Homestead Decision. Under Fed. R. Civ. P.

60(c)(1), the request under the Motion for Reconsideration for

relief based on Rule 60(b)(1) or Rule 60(b)(2) must be denied as

untimely.

Rule 60(b)(6) is not subject to the one-year limitation

14 Rule 60(b)(1) permits a court to relieve a party from a

judgment based on “mistake, inadvertence, surprise, or excusable

neglect,” and under that rule, a mistake can be on the part of

the court as well as a party. See United States v. Fernandez,

797 F.3d 315, 319 (5th Cir. 2015); In re 310 Assocs., 346 F.3d

31, 34-35 (2d Cir. 2003); Buggs v. Elgin, Joliet & Eastern Ry.

Co., 852 F.2d 318, 322 (7th Cir. 1988); Barrier v. Beaver, 712

F.2d 231, 234-35 (6th Cir. 1983).

15 Rule 60(b)(2) permits a court to relieve a party from a

final order for “newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for a

new trial under Rule 59(b).”

24

applicable to a Rule 60(b)(1), (2), or (3) motion. Rule 60(b)(6)

relief was not sought within a reasonable time as required by

Rule 60(c)(1).16 On the one hand, the delay in seeking Rule

60(b)(6) relief would be prejudicial to Max. After the Homestead

Decision was entered, Max pursued rights based on the

determination in the Homestead Decision that he owned the

Property, with Max fully recognizing the risk that the Homestead

Decision might be reversed on appeal and the risk that the

transfer of the Property to him might be set aside by way of the

avoidance powers of the trustee in Len’s bankruptcy case (for

example, under 11 U.S.C. § 544(a)(3)). Max has, at substantial

expense, spent considerable efforts prior to the filing of the

Motion for Reconsideration in pursuing his rights as owner of the

Property, and obtaining confirmation of his Chapter 11 plan

dealing with the Property, including:

• appearing at hearings on July 2, 2019; September 18,

2019; October 2, 2019; and November 21, 2019, on the

judgment creditors’ motion to convert the case to

Chapter 7;

• filing on August 1, 2019, a plan and disclosure

statement and then, later, filing on October 23, 2019;

December 5, 2019; and January 22, 2020, amended

16 And, for reasons discussed later, Rule 60(b)(6) was not

available even if it had been sought in a timely fashion.

25

versions of the same;

• applying on August 15, 2019, to hire an appraiser “in

order to assist the debtor in seeking refinancing for

the Property as part of his Chapter 11 Plan;”

• applying on October 4, 2019, to employ conflicts

counsel to deal with resolving the bank holding the

mortgage on the Property;

• filing on November 20, 2019, a motion to approve a

compromise with the bank holding the mortgage on the

Property;

• filing on January 6, 2020, an objection to the District

of Columbia’s secured claim against the Property; and

• appearing at a confirmation hearing on January 22,

2020, on the third amended Chapter 11 plan, and

obtaining entry of an order on January 28, 2020,

confirming that plan.

If the judgment creditors’ Motion for Reconsideration were

treated as a timely Rule 60(b)(6) motion, and it were granted,

the debtor would have been severely prejudiced in having pursued

rights in reliance upon the Homestead Decision. On the other

hand, the judgment creditors point to no valid basis for treating

their delay in filing the Motion for Reconsideration for

seventeen months as pursuing Rule 60(b)(6) relief within a

reasonable time.

26

In short, the delay of seventeen months after entry of the

Homestead Decision to seek Rule 60(b) relief was not the pursuit

of Rule 60(b) relief within a reasonable time, whether such

relief is sought under Rule 60(b)(1), 60(b)(2), or 60(b)(6). The

Motion for Reconsideration for relief under Rule 60(b) from the

Homestead Decision must be denied as untimely. As explained

below, the judgment creditors have no way to avoid this result.

V

THE MOTION TO SUPPLEMENT OR REMAND DID NOT SUSPEND

THE TIME FOR FILING A RULE 60(b) MOTION IN THE BANKRUPTCY

COURT AND THE DISTRICT COURT LACKED AUTHORITY TO EXTEND THE TIME

Paragraph 4 of the Motion to Supplement or Remand stated:

“Authority for the relief requested is set forth in Fed. R. Civ.

Proc. [sic: meant Fed. R. Bankr. P.] 8009(e)(3) which provides

that questions regarding the record on appeal must be presented

to the District Court.” Remarkably, the Motion and the

accompanying Memorandum failed to note the neighboring rule, Fed.

R. Bankr. P. 8008, which permits timely filing of a Rule 60(b)

motion in the bankruptcy court despite the pendency of an appeal.

In their Memorandum in support of the Motion to Supplement

Record or to Remand, the judgment creditors alleged:

9. When discovering new information or evidence

after trial, an Appellant may request the trial Court for

a new trial or to reconsider its decision pursuant to Fed

R. Civ. P. 59 or 60 (Fed. R. Bankr. Proc. 9023 and 9024,

respectively). However, the Bankruptcy Court does not

have jurisdiction because of the Appellants’ timely

appeal. Further, the new information from the Debtor and

his son, was not available to the Appellants until

27

mid-December, 2018, well after the deadline for filing an

appeal.

Mem. at 4. Although the Bankruptcy Court lacked authority during

the pendency of the appeal to grant Rule 60(b) relief under Fed.

R. Bankr. P. 9024, Fed. R. Bankr. P. 8008 clearly permitted the

judgment creditors to timely file a Rule 60(b) motion in the

Bankruptcy Court despite the pendency of the appeal. This was

true even before the adoption of Fed. R. Bankr. P. 8008 and its

analog, Fed. R. Civ. P. 62.1.17

A consequence of an appellant’s right to file a timely Rule

60(b) motion in the trial court during an appeal is that an

appeal from a judgment does not have the effect of tolling or

enlarging the one-year deadline of Rule 60(c)(1). As the Court

of Appeals explained in Carr v. D.C., 543 F.2d 917, 926 n.70

17 As stated in Smith v. Pollin, 194 F.2d 349, 350 (D.C.

Cir. 1952):

When an appellant in a civil case wishes to make a [Rule

60(b)] motion . . . while his appeal is still pending,

the proper procedure is for him to file his motion in the

District Court. If that court indicates that it will

grant the motion, the appellant should then make a motion

in this court for a remand of the case in order that the

District Court may grant the motion . . . .

See also Doctors Nursing & Rehab. Ctr. v. Sebelius, 613 F.3d 672,

677 (7th Cir. 2010) (noting that “the majority rule (accepted by

this circuit) is that while a district court may consider a motion

for relief from a judgment under Federal Rule of Civil Procedure

60, and even deny the motion, while an appeal is pending, it must

request permission from the appellate court to grant the motion.”

(Citations omitted); Toliver v. County of Sullivan, 957 F.2d 47, 49

(2d Cir. 1992).

28

(D.C. Cir. 1976):

That is because a timely Rule 60(b) motion predicated on

newly-discovered evidence can be made notwithstanding

pendency of the appeal. The procedure acceptable in this

circuit is set forth in Smith v. Pollin, 90 U.S.App.D.C.

178, 179, 194 F.2d 349, 350 (1952). See generally 7 J.

Moore, Federal Practice ¶ 60.30(2) (2d ed. 1948); 11 C.

Wright and A. Miller, Federal Practice § 2873 (1973).

Indeed, in Goland v. CIA, 607 F.2d 339, 372 (D.C. Cir. 1978), the

Court of Appeals stated: “The one-year period [for filing a Rule

60(b)(2) motion] is not tolled by a pending appeal, and under the

federal rules no court has power to extend the deadline.”

(Emphasis added.)

The judgment creditors ought to have timely filed any Rule

60(b) motion in this court despite the pendency of the appeal.

They did not, and the District Court lacked the power to alter

the requirement under Rule 60(c)(1) that any motion under Rule

60(b) be filed “within a reasonable time” and in the case of a

motion under Rule 60(b)(1), (2), or (3), no more than a year

after entry of the judgment . . . .”

Even if the Motion to Supplement or Remand could be treated

as suspending the time for seeking Rule 60(b) relief, the

judgment creditors engaged in unreasonable delay both before

filing and after disposition of the Motion to Supplement or

29

Remand.18

VI

THE MOTION TO SUPPLEMENT OR REMAND FILED IN THE DISTRICT

COURT CANNOT BE TREATED AS A TIMELY FILED RULE 60(b) MOTION

The Motion to Supplement Record or to Remand was filed in

the District Court on May 13, 2019, within one year after the

entry of the Homestead Decision on September 25, 2018. However,

the Motion to Supplement Record or to Remand cannot be treated as

a timely Rule 60(b) motion mis-filed in the District Court that

ought to be treated as filed in the correct court, the Bankruptcy

Court, when the motion was filed in the District Court.

18 The Motion to Supplement or Remand was filed in the

District Court on May 13, 2019, seven months and eighteen days

after entry of the Homestead Decision, and along the way the

judgment creditors did not proceed with expedition. They could

have promptly brought to the District Court’s attention without a

transcript that Len testified on December 13, 2018, that Max had

not paid Len $100: Max could not dispute the incontestable fact

that Len had so testified. If they needed to have a transcript,

the judgment creditors dragged their feet and took 50 days to

order a transcript of Len’s testimony of December 13, 2018. Had

a transcript been ordered in December 2018, Len’s testimony of

December 13, 2018, could have been brought to the District

Court’s attention by early January 2019 instead of mid-May 2019.

The District Court’s Order dismissing the appeal was entered

on January 2, 2020. By then, the judgment creditors had long ago

already briefed in the District Court why reconsideration by the

Bankruptcy Court was warranted based on the three transcripts.

Yet, the judgment creditors inexplicably failed to file their

Motion for Reconsideration in the Bankruptcy Court until March 6,

2020, sixty-four days later. That 64-day delay in filing the

Motion for Reconsideration was a failure to seek Rule 60(b)

relief within a reasonable period of time as required by Rule

60(c)(1) even if the appeal had suspended the Rule 60(c)(1)

deadline, which it had not.

30

A.

THE DISTRICT COURT DID NOT TREAT THE MOTION TO

SUPPLEMENT OR REMAND AS A TIMELY RULE 60(b) MOTION FILED IN

THE BANKRUPTCY COURT, AND WOULD HAVE LACKED AUTHORITY TO DO SO

The District Court’s Memorandum Opinion and its Order did

not treat the Motion to Supplement or Remand filed in the

District Court as a Rule 60(b) motion filed in the Bankruptcy

Court. Moreover, there was no inherent authority in the District

Court to treat the Motion to Supplement or Remand as a timely

Rule 60(b) motion. As is made clear by Fed. R. Civ. P. 60(b)

itself and Fed. R. Bankr. P. 8008 (and its analog, Fed. R. Civ.

P. 62.1), a Rule 60(b) motion for relief from a final judgment

must be filed in the trial court, and the motion must be timely

filed in the trial court. This was true even before the adoption

of Fed. R. Bankr. P. 8008 and its analog, Fed. R. Civ.P. 62.1.

See Bankers Mortg. Co. v. United States, 423 F.2d 73, 78 (5th

Cir. 1970) (“The motion for relief from final judgment must be

filed in the [trial] court and in the action in which the

original judgment was entered.”). To treat the Motion to

Supplement Record or to Remand as having been a timely Rule 60(b)

motion would contravene the controlling precedent under Carr v.

D.C., 543 F.2d at 926, that a timely Rule 60(b) motion can be

made in the trial court notwithstanding the pendency of the

appeal, and of Goland v. CIA, 607 F.2d at 372, that the one-year

period for filing a Rule 60(b)(2) motion “is not tolled by a

31

pending appeal, and under the federal rules no court has power to

extend the deadline.”

B.

THE DISTRICT COURT DID NOT TRANSFER THE MOTION TO

SUPPLEMENT OR REMAND TO THE BANKRUPTCY COURT,

AND 28 U.S.C. § 1631 WOULD NOT HAVE AUTHORIZED IT

TO TRANSFER THE MOTION TO THE BANKRUPTCY COURT AS THOUGH

IT WERE A RULE 60(b) MOTION MISFILED IN THE DISTRICT COURT

The court cannot treat the Motion for Reconsideration as

relating back to the date of the filing of the Motion to

Supplement or Remand in the District Court such as to obviate the

bar of Rule 60(c)(1) to granting the judgment creditors Rule

60(b) relief. The judgment creditors concede that they have been

unable to find a case directly on point concerning whether the

Motion to Supplement or Remand filed in the District Court filed

within one year of entry of the Homestead Decision, permits the

Bankruptcy Court to treat the Motion for Reconsideration as filed

within one year of entry of the Homestead Decision for purposes

of Rule 60(c)(1). No such authority exists.

1. Inapplicability of 28 U.S.C. § 1631. Authority

permitting the transfer of a matter misfiled in one court to the

proper court, and allowing the matter to be treated as filed when

it was filed in the transferor court, is found in 28 U.S.C. §

1631, which provides:

Whenever a civil action is filed in a court as defined in

section 610 of this title or an appeal, including a

petition for review of administrative action, is noticed

for or filed with such a court and that court finds that

32

there is a want of jurisdiction, the court shall, if it

is in the interest of justice, transfer such action or

appeal to any other such court (or, for cases within the

jurisdiction of the United States Tax Court, to that

court) in which the action or appeal could have been

brought at the time it was filed or noticed, and the

action or appeal shall proceed as if it had been filed in

or noticed for the court to which it is transferred on

the date upon which it was actually filed in or noticed

for the court from which it is transferred.

The statute does not apply here.

First, the District Court did not transfer the Motion to

Supplement or Remand to this court. See Howitt v. U.S. Dep’t of

Commerce, 897 F.2d 583, 584 (1st Cir. 1990) (“The simple fact,

however, is that the Federal Circuit did not transfer [the] case.

Thus, this statute does not cure the jurisdictional defect.”);

Jovanovic v. US-Algeria Bus. Council, 561 F. Supp. 2d 103, 113

(D.D.C. 2008) (declining to treat plaintiff’s claims as if the

District of New Jersey had transferred them). Instead, the

District Court dismissed the appeal so that the judgment

creditors could attempt to have the Bankruptcy Court consider the

new evidence. The judgment creditors then made that attempt by

filing in this adversary proceeding their Motion for

Reconsideration.

Second, the Motion to Supplement or Remand was not cast as a

Rule 60(b) motion, but instead sought relief that the District

Court clearly had jurisdiction to consider. Section 1631 does

not apply when a proceeding is filed in a court that has

jurisdiction over the proceeding. See Hoffmann v. United States,

33

266 F. Supp. 2d 27, 36 (D.D.C. 2003) (“As jurisdiction is proper

in this court, this court is without power to transfer this

action . . .” (citations omitted)), aff’d, 96 F. App’x 717 (Fed.

Cir. 2004).

Finally, treating the Motion to Supplement or Remand as a

timely Rule 60(b) motion would contravene Fed. R. Bankr. P. 8008,

which contemplates that if an appellant wishes to pursue Rule

60(b) relief in the bankruptcy court, it must timely file the

Rule 60(b) motion in the bankruptcy court, not in the pending

appeal.

2. The Bankruptcy Court’s Lack of Discretion to Deem the

Motion for Reconsideration as Filed When the Motion to Supplement

or Remand Was Filed in the Appeal in the District Court. The law

and policy surrounding Rule 60(b) are clear that after the time

for filing a Rule 59 motion has expired, a Rule 60(b) motion,

timely filed in the trial court, is “intended to be the only

method of attacking a final judgment” in the trial court.

Hendrick v. Avent, 891 F.2d 583, 588 (5th Cir. 1990).

Recharacterizing the Motion to Supplement or Remand filed in the

District Court as a Rule 60(b) motion and then treating the

pending Motion for Reconsideration filed in this bankruptcy case

as relating back to the date of the filing of the Motion to

Supplement or Remand in the District Court (so that Rule 60(b)

relief could be viewed as sought within one year after entry of

34

the Homestead Decision) would be a case of engaging in

contortions not permitted by the Federal Rules of Civil

Procedure.

As in Hendrick, 891 F.2d at 589, any such contortions would

be to engage in “extensive legal gymnastics” unwarranted under

Rule 60(b). In Hendrick, the bankruptcy court entered an order

approving a sale of stock. Within a year, the trustee and

Hendrick filed a complaint in the district court against the

purchaser and others based on misrepresentations made incident to

the sale, and then, after the passage of one year after entry of

the sale order, filed a second amended complaint asserting new

claims based on that misconduct. The district court dismissed

those claims as barred by the res judicata effect of the sale

order, but Hendrick urged that the second amended complaint

ought to be treated as a Rule 60(b) motion regarding the sale

order. The second amended complaint was filed more than one year

after the entry of the sale order, thus making the filing

untimely under Rule 60(c)(1) even if it were treated as a Rule

60(b) motion. The court of appeals upheld the district court’s

refusal to treat the second amended complaint as a Rule 60(b)

motion relating back to the filing of the original complaint,

stating:

Clearly, making appellant’s claim fit under the label of

a Rule 60(b) motion would take a recharacterization of

the pleadings plus a relation back in time to the

original complaint to fit within the time restraints [of

35

Rule 60(c)(1)]. The district court properly refused to

perform such feats.

The court of appeals further held that any Rule 60(b) motion

ought to have been filed in the bankruptcy court case in which

the sale order was entered. 891 F.2d at 588 n.11. The point of

Hendrick is that filing the correct type of motion and timely

filing it in the trial court matters when it comes to seeking

Rule 60(b) relief from a judgment.19

Here, too, the Motion to Supplement or Remand filed in the

District Court was not a Rule 60(b) motion and ought not be

recharacterized as such. Even if it were treated as a Rule 60(b)

motion, it was not filed in the Bankruptcy Court, and the grounds

it asserted were not pursued in the Bankruptcy Court under Rule

60(b) until the judgment creditors filed their Motion for

Reconsideration more than seventeen months after entry of the

Homestead Decision. Moreover, the judgment creditors waited

until sixty-four days after the District Court entered its Order

dismissing the appeal to file their Motion for Reconsideration.

19 A decision similar to Hendrick is Engleson v. Burlington

N. R. Co., 972 F.2d 1038, 1043-1044 (9th Cir. 1992) (relying on

Hendrick, and holding that a complaint filed in a new action

after the dismissal of the plaintiffs’ first action, which was

timely but had failed to cite the proper statute for subject

matter jurisdiction, was time-barred and reversing, as an abuse

of discretion, the district court’s finding that the complaint in

the second action related back under Fed. R. Civ. P. 15(c) to the

complaint in the first action). Filing in the correct proceeding

matters.

36

The Motion for Reconsideration ought not be treated as relating

back in time to the date of the filing of the Motion to

Supplement or Remand in the District Court.

In short, the judgment creditors have not offered any viable

argument that would support finding that the judgment creditors

made a timely Rule 60(b) motion in this court.

VII

EVEN IF THE DISTRICT COURT’S ORDER IS TREATED AS A REMAND

ORDER, THAT ORDER DID NOT ALTER THE GENERAL RULE THAT THE

TRIAL COURT CAN GRANT RELIEF FROM A JUDGMENT BASED ON NEW

EVIDENCE ONLY IN ACCORDANCE WITH THE TIME LIMITATIONS OF

FED. R. CIV. P. 60(c)(1) REGARDING GRANTING RULE 60(b) RELIEF

Despite Fed. R. Bankr. P. 8008, and the failure of the

judgment creditors to have sought Rule 60(b) relief in the

Bankruptcy Court, the District Court, as the appellate court, had

discretion to remand to the Bankruptcy Court to consider any

motion the judgment creditors might file under Rule 60(b) for

relief from the judgment. See Lopez Dominguez v. Gulf Coast

Marine & Assocs., Inc., 607 F.3d 1066 (5th Cir. 2010) (pending

Rule 60(b) motion preferred but not required before remand).

Unlike appellate decisions in which the appellate court

specifies matters the trial court must address on remand, the

District Court did not require the Bankruptcy Court to receive

into evidence the new evidence, and, instead, merely allowed the

appeal to be dismissed so that the appeal did not act as a bar

(as feared by the judgment creditors) to the Bankruptcy Court’s

37

considering a Rule 60(b) motion based on the allegedly newly

discovered evidence.

“The proper procedure for dealing with newly discovered

evidence is for the party to move for relief from the judgment in

the district court under rule 60(b) of the Federal Rules of Civil

Procedure.” Goland v. CIA, 607 F.2d at 371; Bankers Mortg. Co.

v. United States, 423 F.2d at 78. Accordingly, if the District

Court’s Order is treated as a remand order, the Order can only be

viewed as remanding the proceeding to permit the filing of a Rule

60(b) motion.

The District Court’s Order specifically did not instruct the

Bankruptcy Court to consider the judgment creditors’ new evidence

if the judgment creditors failed to demonstrate in the Bankruptcy

Court that Rule 60(b) relief was being sought in a timely

fashion. As the District Court noted:

under 28 U.S.C. § 158(a), this Court is merely called to

exercise appellate jurisdiction over Judge Teel’s ruling,

not to adjudicate any new factual disputes between the

parties. That is precisely why, “[n]ormally,

supplementation of the record is effected by remanding

the case to the [court below] to allow that court to

order the introduction of new evidence,” where

appropriate. [Citing Colbert v. Potter, 471 F.3d 158,

166 (D.C. Cir. 2006).

[Emphasis added.] In other words, the District Court left it to

the Bankruptcy Court to decide whether it would be “appropriate”

to consider new evidence. It would be odd for the District

Court, as the appellate court, to delve into issues under Rule

38

60(b) that are the province of the Bankruptcy Court as the trial

court to decide in the first instance.20

VIII

NOTHING IN 28 U.S.C. § 2106

REQUIRES THIS COURT TO CONSIDER

THE NEW EVIDENCE WHEN RULE 60(b) RELIEF IS TIME-BARRED

“[Any] court of appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment . . . and may remand

the cause . . . as may be just under the circumstances.” 28

U.S.C. § 2106. However, there was no remand order here; instead,

there was a dismissal to allow pursuit in the Bankruptcy Court of

20 The District Court did not purport to address (and

ought not have addressed):

(a) whether Rule 60(b) relief, upon being sought in the

Bankruptcy Court, was sought “within a reasonable time” as

required by Rule 60(c)(1) even putting aside the one-year

maximum period for filing a Rule 60(b)(1) or (2) motion

based on newly discovered evidence;

(b) whether the evidence was (i) “newly discovered

evidence” that (ii) “could not have been discovered in time

to move for a new trial under Rule 59(b);” and

(c) whether the evidence would warrant relief from the

final judgment.

Those are issues reserved to the Bankruptcy Court as the trial

court to address in the first instance, and they were not briefed

and argued in the District Court. Indeed, the District Court

made clear that any factual issues were to be determined by the

Bankruptcy Court. See Memorandum Opinion at 7 (noting that

“under 28 U.S.C. § 158(a), this Court is merely called to

exercise appellate jurisdiction over Judge Teel’s ruling, not to

adjudicate any new factual disputes between the parties”).

39

allegedly newly discovered evidence.21 Even if the District

Court had ordered a remand, it made clear it was leaving it to

the Bankruptcy Court to determine whether it would be

“appropriate” to grant relief based on the new evidence.

This is not a case of a remand to a trial court to make a

finding, not yet made, regarding an issue that was required to be

adjudicated. See, e.g., Trans–Pacific, 177 F.3d at 1028

(discussed in footnote 11, supra, reversing and remanding to the

trial court to make a required finding). This is not a case in

which reversal was warranted based on the Bankruptcy Court having

failed to make a finding necessary to support its judgment.

However, in one decision, the Court of Appeals remanded a

case to the District Court to consider new evidence even though

it was too late to pursue Rule 60(b)(2) relief in the District

Court. See Powell v. U.S. Bureau of Prisons, 927 F.2d 1239 (D.C.

21 The approach the District Court here was consistent with

the approach the Court of Appeals took in a case in 2011. See

Khan v. Obama, No. CIV. A. 08-1101 JDB, 2014 WL 4843907, at *4

(D.D.C. Sept. 2, 2014)):

On the same day that the D.C. Circuit affirmed this

Court’s denial of Khan's habeas petition, it issued a

separate order denying Khan’s motion to supplement the

record, reasoning that “‘[a]ppellate courts do not

ordinarily consider evidence not contained in the record

developed at trial.’” Khan v. Obama, No. 10–5306 (D.C.

Cir. Sept. 6, 2011) (quoting Colbert v. Potter, 417 F.3d

158, 165 (D.C. Cir. 2006)). This denial, however, was

explicitly “without prejudice to appellant’s renewing the

motion in the district court under Federal Rule of Civil

Procedure 60(b).” Id.

40

Cir. 1991) (remanding case when disclosures by the Bureau in

other litigation subsequent to the district court’s decision

suggested that the district court’s finding concerning the

“segregability” of the requested document was no longer viable,

and finding that a remand under 28 U.S.C. § 2106 to consider the

new evidence was warranted “given the equities involved and the

extraordinary circumstances presented in this case”). Powell is

distinguishable and the District Court’s Order here cannot be

viewed as requiring consideration of the allegedly “new evidence”

without regard to the limits of Rule 60 regarding the court’s

considering such new evidence:

(1) Here, the District Court’s Order dismissing the

appeal did not make a remand or include any instructions in

its Order dismissing the appeal.

(2) The Court of Appeals in Powell made clear that

consideration of the new evidence was required, not merely

(as here) that the appeal was now dismissed so that the

judgment creditors could seek to have the Bankruptcy Court

consider the new evidence and determine whether Rule 60(b)

relief is appropriate.

(3) The Court of Appeals made clear that it was ruling

that consideration of the new evidence was required even

though Rule 60(b)(2) could not be invoked because of Rule

60(c)(1). Here, the District Court here did not even

41

address Rule 60(c)(1).

(4) The dispute was not a private dispute, as here, but

instead an action under the Freedom of Information Act, in

which third party interests of the public were at stake, and

which involved “extraordinary circumstances” and special

equities. This case, unlike Powell, does not involve

“extraordinary circumstances” or any special equities.

(5) The evidence in Powell appeared to clearly

demonstrate that the facts were contrary to the facts found

by the trial court.22 As discussed in part IX, below, the

“new evidence” here does not suggest that the court’s

findings are clearly no longer viable.

In short, regardless of the extent of an appellate court’s remand

powers under 28 U.S.C. § 2106, the District Court did not make a

remand here requiring the court to consider the “new evidence.”

IX

RULE 60(b) RELIEF WOULD NOT BE APPROPRIATE

RELIEF EVEN IF SUCH RELIEF HAD BEEN SOUGHT TIMELY

Even if the Motion for Reconsideration were treated as

timely seeking Rule 60(b) relief, it does not set forth grounds

22 See Powell, 927 F.2d at 1243 n.9 (noting that “the

substantive soundness of a factual determination required by

statute [non-segrability to support non-disclosure under FOIA]

may, in certain circumstances, be called into question by

subsequent events” and that “the intervening events directly

contradict the Bureau’s affidavit: if the Manual is not

segregable, how did the Bureau segregate it?”).

42

warranting Rule 60(b) relief.

A.

RULE 60(b)(1)

Rule 60(b)(1) relief may be sought based on a mistake made

by the court or excusable neglect of the movant. The judgment

creditors have not shown the Rule 60(b)(1) relief is warranted.

1. The Asserted Error by the Court in Not Finding

Abandonment. The Motion for Reconsideration seeks to have this

court determine that Max abandoned his rights under the Quitclaim

Deed. Rule 60(b)(1) relief based on an asserted mistake of the

court is not warranted except when there is a need to correct a

clear error or prevent manifest injustice. This follows because

the standards governing Rule 60(b) are even more restrictive than

the standards governing a Rule 59(e) motion,23 and “[a] Rule

59(e) motion is discretionary and need not be granted unless the

district court finds that there is an intervening change of

controlling law, the availability of new evidence, or the need to

correct a clear error or prevent manifest injustice.” Firestone

v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).

Moreover, “motions for reconsideration, whatever their

procedural basis, cannot be used as an opportunity to reargue

facts and theories upon which a court has already ruled, nor as a

23 See Kline v. Archuleta, 309 F.R.D. 91, 92–93 (D.D.C.

2015), aff'd sub nom. Kline v. Cobert, No. 15-5248, 2016 WL

1272945 (D.C. Cir. Feb. 10, 2016).

43

vehicle for presenting theories or arguments that could have been

advanced earlier.” Estate of Gaither ex rel. Gaither v. District

of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) (internal

quotation marks and citations omitted); Greer v. Paulson, 505

F.3d 1306, 1317 (D.C. Cir. 2007) (Rule 60(b) does not afford a

party “an opportunity to retry [its] case.”). A Rule 60(b)

motion is “not simply an opportunity to reargue facts and

theories upon which a court has already ruled.” Black v.

Tomlinson, 235 F.R.D. 532, 533 (D.D.C. 2006) (quoting New York v.

United States, 880 F. Supp. 37, 38 (D.D.C. 1995)). In seeking to

argue anew why the Quitclaim Deed ought to be treated as

abandoned, the judgment creditors rehash the evidence and

arguments at the trial, attempting to convince the court that

there was an abandonment. This amounts to an impermissible

attempt to reargue facts and theories upon which the court has

already ruled.

Moreover, the judgment creditors have failed to show as

required by Firestone that there is a need to correct a clear

error or prevent manifest injustice. As discussed at length in

the Homestead Decision, Len continued to treat Max as the owner

of the Property, as did Max. Moreover, as noted in the Homestead

Decision at 56-57, the failure to record a deed does not make the

deed ineffective. There was no abandonment of Max’s rights under

the Quitclaim Deed.

44

2. Excusable Neglect. The judgment creditors also seek

Rule 60(b)(1) relief on the basis that their failure to present

the testimony they gathered in the three transcripts at issue was

due to excusable neglect. They assert that the court’s Homestead

Decision rested on a ground that Max had not advanced, namely,

the court’s conclusion that consideration provided by Max to Len

caused the Quitclaim Deed to be effective to transfer the

Property to Max despite the failure of the trust named as the

recipient in the Quitclaim Deed. However, the judgment creditors

could have sought a new trial under Fed. R. Civ. P. 59(a) on that

basis. While their argument might have justified granting Rule

59(a) relief, their long delay in presenting their argument to

the Bankruptcy Court as a basis for Rule 60(b) relief is a case

of inexcusable neglect. In any event, as discussed next, the

evidence they gathered via the three transcripts at issue does

not demonstrate any error in the Homestead Decision.

B.

RULE 60(b)(2)

Under Rule 60(b)(2), the court may grant relief from a

judgment on the basis of “newly discovered evidence” that the

party, by “due diligence,” could not have discovered in time to

move for a new trial pursuant to Rule 59(b). To obtain relief

from judgment on the basis of “newly discovered evidence,” a

party must show that the following requirements are met: “(1) the

45

evidence must have been in existence at the time of trial; (2)

the evidence must be such that it was not and could not by the

exercise of due diligence have been discovered in time to present

it in the original proceeding; (3) the evidence must not be

merely cumulative or impeaching; and (4) the evidence must be

admissible and credible, and of such a material and controlling

nature as will probably change the outcome.” Lans v. Gateway

2000, Inc., 110 F.Supp.2d 1, 4 (D.D.C. 2000) (quoting In re

Korean Air Lines Disaster of September 1, 1983, 156 F.R.D. 18, 22

(D.D.C. 1994)).

It is debatable whether the judgment creditors are

presenting “newly discovered evidence” but (for reasons discussed

later), it ultimately does not matter. Len and Max both

testified at length in the homestead exemption trial in August

2018, and were available to be examined regarding the matters to

which they later testified in the three transcripts of testimony

in December 2018 and April 2019. Their knowledge regarding the

consideration paid for the transfer under the Quitclaim Deed was

available in the trial, and for that reason is evidence available

at the trial such that the testimony arguably does not constitute

newly discovered evidence. See NYS-ILA Med. v. Salco Trucking

Corp., No. 90 CIV. 5949 (CSH), 1993 WL 546669, at *1 (S.D.N.Y.

Dec. 30, 1993) (“It is a general tenet of the law that litigants

cannot disturb adverse judgments on the ground of evidence they

46

could and should have presented at an earlier time.”) Under

Lans, 110 F.Supp.2d at 4, the judgment creditors were required to

show that the testimony in the three transcripts “was not and

could not by the exercise of due diligence have been discovered

in time to present it in the original proceeding.” See also Bain

v. MJJ Prods., Inc., 751 F.3d 642, 649 (D.C. Cir. 2014)

(affirming denial of motion for reconsideration where “newly

discovered” evidence was known to plaintiff prior to entry of

judgment and the plaintiff had failed to exercise reasonable

diligence in seeking the evidence in question); Stewart v.

Panetta, 826 F.Supp.2d 176, 177 (D.D.C. 2011) (explaining that

reconsideration under Rule 54 may be premised on the “discovery

of new evidence not previously available”).

The judgment creditors’ attorney examined Max and Len

extensively during the homestead exemption trial regarding

whether Max, not Len, was the one who had paid expenses

associated with the Property, and the Quitclaim Deed was listed

as an exhibit long before the trial. The judgment creditors’

attorney could have asked at the trial the same questions

reflected by the three transcripts at issue. For example, Len’s

knowledge regarding whether $100.00 was paid at the time that he

executed the Quitclaim Deed was there for exploration at the

trial. The judgment creditors simply failed to inquire of Len in

that regard at the trial. Rule 60(b) “cannot be employed simply

47

to rescue a litigant from strategic choices that later turn out

to be improvident.” Smalls v. United States, 471 F.3d 186, 191

(D.C. Cir. 2006) (quoting Good Luck Nursing Home, Inc. v. Harris,

636 F.2d 572, 577 (D.C. Cir. 1980)).

In any event, regardless of whether the three transcripts

qualify as “newly discovered evidence”, the transcripts do not

justify Rule 60(b)(2) relief. Nothing in the testimony of Max

and Len in December 2018 and April 2019 contradicts the testimony

of Max and Len in the homestead exemption trial or undercuts the

findings I made in the Homestead Decision.

Evidence in the three transcripts of December 2018 and April

2019 regarding payments of bills and expenses relating to the

Property is merely cumulative. The judgment creditors assert

that the testimony of Max and Len in the three transcripts

undercuts the finding in the Homestead Decision regarding Max,

not Len, having made all the payments on the Property’s mortgage

and other expenses of the Property. The Homestead Decision did

not find, as suggested by the Motion for Reconsideration, that

Max made all tax and mortgage payments that came due. What the

Homestead Decision said was that Max made all payments that were

made for such expenses, even if he failed to make some mortgage

or tax payments that came due. The Homestead Decision found that

Max, not Len, made the mortgage payments that were made on the

Property, but acknowledged that some monthly payments were not

48

made, and found that Max (who rented out rooms in the Property)

made the payments that were made for upkeep of the Property, and

for taxes and insurance relating to the Property.24 The three

transcripts do not undercut the findings in the Homestead

Decision concerning payments made regarding the Property.

Len’s testimony in December 2018 and April 2019 reveals that

Len received no money, property, or other collateral when, almost

nine years earlier, he executed the Quitclaim Deed. Len did not

testify to the contrary in the trial leading to the Homestead

Decision. He wasn’t asked.

The judgment creditors assert that Len’s new testimony

contradicted the recitations in the Quitclaim Deed that the

transfer was “for good consideration and for the sum of $100.00

paid by [Max], the receipt whereof is hereby acknowledged.” Any

failure of Max to pay Len $100.00 at the time Len executed the

Quitclaim Deed would not alter the finding in the Homestead

Decision that Max provided valuable consideration for the

transfer. A recitation of a nominal amount of cash paid in

exchange for a deed is commonplace, and it is likely equally

commonplace that often the consideration is something different,

with no cash paid. If Max did not pay $100 at closing that does

24 The judgment creditors complain that Max failed to

produce documents requested in discovery documenting the expenses

he paid related to the Property, but that could have been raised

at the trial. As noted previously, Rule 60(b) may not be used to

raise arguments that could have been made at trial.

49

not alter the finding in the Homestead Decision that Len received

valuable consideration based on Property expenses for which Len

was liable and that Max agreed to continue paying, and based on

Max’s agreement to attempt to refinance the Property to eliminate

Len as a mortgagor.25 When he executed the Quitclaim Deed, Len

had received “good consideration” for the transfer as recited by

the Quitclaim Deed.

Moreover, the Irrevocable Trust Agreement executed on July

6, 2010, purported to create a trust named the 1610 Riggs

Property Trust (“the Trust”), and recites that the Grantor (Len)

“desiring to create a trust for the benefit of his father and for

other good and valuable consideration, irrevocably assignees

[sic] to the Trustee the [Property], in trust, for the purposes

25 As noted previously, the Homestead Decision recited:

Additionally, while the mortgage was in Len’s name, Max

made all payments on the mortgage, and there was an

agreement between Len and Max that Max would take Len’s

name off the mortgage when Max was able to refinance the

Property on his own credit. Moreover, Max paid all

bills, taxes, and other expenses related to the Property,

and maintained and kept up the Property. Len put no

investment into the Property, and got more out of the

Property than he put into it. Accordingly, the court

finds that there was valuable consideration.

(Emphasis added.) Again, the recitation that Max paid all of the

expenses did not mean that each and every bill (such as a monthly

mortgage payment obligation that came due) was paid, only that it

was Max that made all such payments that were made, not Len.

50

and on the conditions hereinafter stated” (emphasis added), thus

strengthening the conclusion that the parties were of the view

that there had been consideration for the transfer.26

C.

RULE 60(b)(6)

The judgment creditors also rely on Rule 60(b)(6) in seeking

relief from the Homestead Decision. A party “must clear a very

high bar to obtain relief under Rule 60(b)(6).” Kramer v. Gates,

481 F.3d 788, 792 (D.C. Cir. 2007). Rule 60(b)(6) relief is

unavailable here.

First, as stated in Williamsburg Wax Museum, Inc. v.

Historic Figures, Inc., 810 F.2d 243, 249 (D.C. Cir. 1987):

Rule 60(b)(6) permits a court to grant relief from a final

judgment for “any other reason justifying relief . . . .”

(Emphasis added.) The courts have universally interpreted

“other” to mean other than the reasons specified in

subsections 60(b)(1)–60(b)(5), and it is generally

accepted that cases clearly falling under Rule 60(b)(1)

cannot be brought within the more generous Rule 60(b)(6)

in order to escape the former's one year time limitation.

26 The Irrevocable Trust Agreement named Max as the sole

trustee and the sole beneficiary of the Trust and makes clear

Len’s intent to grant Max complete authority regarding management

of the Property and the sole right to enjoy income generated by

the Property, with, for example, the right to sell or encumber

the Property. Even though the trust failed for technical

reasons, the Irrevocable Trust Agreement makes clear that Len and

Max viewed the transfer of the Property to Max was for “good and

valuable consideration.”

51

(Citations omitted.)27 Therefore, because the Motion for

Reconsideration could be brought under Rule 60(b)(1) and Rule

60(b)(2), Rule 60(b)(6) does not apply.

Second, “[t]he Supreme Court has noted that courts

should grant Rule 60(b)(6) motions only in ‘extraordinary

circumstances.’” Kramer v. Gates, 481 F.3d at 791 (quoting

Ackermann v. United States, 340 U.S. 193, 199 (1950)). “A

litigant's diligence in pursuing review of a decision, either

through appeal or through Rule 60(b)(6) relief, is relevant in

assessing whether extraordinary circumstances are present.”

Salazar ex rel. Salazar v. D.C., 633 F.3d 1110, 1118–19 (D.C.

Cir. 2011), citing Gonzalez v. Crosby, 545 U.S. 524, 537 (2005).

The judgment creditors have not shown extraordinary

circumstances here. The three transcripts at issue here do not

show that the Homestead Decision was manifestly unjust,

warranting Rule 60(b)(6) relief. Thus, this is not a case like

Good Luck Nursing, 636 F.2d at 577, upon which the judgment

creditors rely. Here, the three transcripts did not contain

previously undisclosed evidence that was, as in Good Luck

Nursing, “so central to the litigation that [it] show[s] the

27 See also Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847, 862 (1988); Goland, 607 F.2d at 372-73; United

States v. Fernandez, 797 F.3d at 319 (holding that “an action

cannot be brought through the catch-all provision of Rule

60(b)(6) if it could have been brought through one of the Rule’s

first five subsections.”).

52

initial judgment to have been manifestly unjust.” Id.28 Just as

the three transcripts do not show error in the Homestead Decision

for purposes of Rule 60(b)(2), they do not show error for

purposes of Rule 60(b)(6). Because the Homestead Decision was

not based on a “fundamental misconception of the facts[,]” as in

Good Luck Nursing, 636 F.2d at 576, Rule 60(b)(6) relief from the

Homestead Decision is not warranted.

Moreover, much of the Motion for Reconsideration merely

advances arguments of error in the Homestead Decision, but Rule

60(b) may not be used as a substitute for appeal. See Salazar,

633 F.3d at 1122; Bell v. Eastman Kodak Co., 214 F.3d 798, 800

(7th Cir. 2000) (“The ground for setting aside a judgment under

Rule 60(b) must be something that could not have been used to

obtain a reversal by means of a direct appeal.”). In rehashing

the trial evidence and arguments at trial, the judgment creditors

have impermissibly attempted to use their Rule 60(b)(6) request

as an attempt to re-litigate the merits of the Homestead

Decision, matters that should have been pursued via appeal. See

People for the Ethical Treatment of Animals v. United States

28 In Salazar, 633 F.3d 1121, the Court of Appeals noted

that there is a question, which it declined to decide, “ whether

the rule of Good Luck Nursing Home . . . survives the Supreme

Court's decision in Gonzalez emphasizing that a ‘lack of

diligence’ effectively precludes a finding of ‘extraordinary

circumstance. 545 U.S. at 537.” Here, too, it is unnecessary to

decide that question.

53

Dep't of Health & Human Servs., 901 F.3d 343, 356 (D.C. Cir.

2018). Generally, Rule 60(b) relief based on a mistake of the

court and sought after the time to appeal has expired is

unavailable if the movant failed to file a timely appeal. See

Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F. Supp.

2d 216, 228 (D.D.C. 2011); Morris v. Adams-Millis Corp., 758 F.2d

1352, 1358 (10th Cir. 1985) (“[A] mistake of law cannot be

reached under 60(b)(1) where no notice of appeal was timely filed

from the order in which the mistake is alleged to have occurred,

and the time for filing such a notice of appeal had expired when

the 60(b) motion was filed. A contrary rule would permit a 60(b)

motion to serve as an appeal, which would be untimely

otherwise.”). The judgment creditors took a timely appeal, but

they have allowed their appeal to be dismissed, without seeking

amendment of the Order dismissing the appeal or taking an appeal

from that Order.

As in the case of failing timely to take an appeal, the

dismissal of the appeal here bars Rule 60(b) relief based on a

mistake of the court. See Salazar, 633 F.3d at 1122 (holding

that Rule 60(b)(6) relief was inappropriate when the appellant

had made a considered choice to dismiss its appeal and resorted

instead to a Rule 60(b)(6) motion); Eskridge v. Cook Cty., 577

F.3d 806, 809 (7th Cir. 2009) (voluntarily dismissing appeal was

a “mistake of law” not justifying Rule 60(b)(1) relief); In re

54

Pettle, 410 F.3d 189, 192 (5th Cir. 2005) (a party who

voluntarily requested dismissal of a claim was not entitled to

Rule 60(b) relief from the judgment dismissing the action).

Rule 60(b)(6) “may not ‘be employed simply to rescue a

litigant from strategic choices that later turn out to be

improvident.’” Kramer v. Gates, 481 F.3d at 792 (quoting Good

Luck Nursing, 636 F.2d at 577). As noted in Kramer, id., “the

Supreme Court has held that ‘extraordinary circumstances’ are not

present when in hindsight it appears certain that an appeal,

which was not taken, would have been successful, Ackermann, 340

U.S. at 197–99 . . .” Here, the judgment creditors neglected to

preserve their appellate rights, and errors in the Homestead

Decision cannot be attacked instead via a Rule 60(b)(6) motion.

Similarly, the judgment creditors are not entitled to Rule

60(b)(6) relief on the basis that their attorney mistakenly took

the view that Rule 60(b) relief could not be sought while the

appeal was pending, thus leading to the delay in filing the

Motion for Reconsideration and making it untimely. As noted in

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,

507 U.S. 380, 392 (1993), “inadvertence, ignorance of the rules,

or mistakes construing the rules do not usually constitute

55

‘excusable’ neglect.”29 Here, Fed. R. Bankr. P. 8008(a) made

clear that a Rule 60(b) motion could be timely filed in the

Bankruptcy Court despite the pendency of the appeal. Any error

in failing to understand that clear and unambiguous rule is not a

basis for Rule 60(b)(6) relief. See Jarvis v. Parker, 13 F.

Supp. 3d 74, 80 (D.D.C. 2014) (“This case . . . represents

garden-variety attorney error. To premise relief under Rule

60(b)(6) on such a basis would do violence to the Supreme Court

and D.C. Circuit's instructions that this provision should be

“sparingly used.” Kramer, 481 F.3d at 792.”). This approach

applies to Rule 60(b) in general. See S.E.C. v. Bilzerian, 729

F. Supp. 2d 9, 18 (D.D.C. 2010), citing Edward H. Bohlin Co. v.

Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993) (“A court would

abuse its discretion if it were to reopen a case under Rule

60(b)(1) when the reason asserted as justifying relief is one

attributable solely to counsel's carelessness with or

misapprehension of the law.”), and Kagan v. Caterpillar Tractor

Co., 795 F.2d 601, 607 (7th Cir. 1986) (“Neither ignorance nor

carelessness on the part of the litigant or his attorney provide

29 Moreover, as discussed previously, the judgment

creditors’ delay was not just during the pendency of the Motion

to Supplement or Remand in the District Court. After the

Homestead Decision was entered, eight months passed (from

September 25, 2018, to May 13, 2019) before the judgment

creditors filed their Motion to Supplement or Remand. Then after

the District Court entered its Order dismissing the appeal,

another 64 days elapsed before the judgment creditors filed their

Motion for Reconsideration.

56

grounds for relief under Rule 60(b)(1).” See also Eskridge, 577

F.3d at 809 (“mistake of law” did not justify Rule 60(b)(1)

relief); McCurry v. Adventist Health Sys./Sunbelt, 298 F.3d 586,

592 (6th Cir. 2002) (“neither strategic miscalculation nor

counsel’s misinterpretation of the law warrants relief from

judgment.”).

Finally, the Rule 60(b) motion in Good Hope “was made within

three months of the original judgment,” 636 F.2d at 578, whereas

here the judgment creditors’ Motion for Reconsideration was filed

seventeen months after entry of the Homestead Decision. The lack

of diligence weighs heavily against finding extraordinary

circumstances. Gonzalez, 545 U.S. at 537.

X

THE MOTION FOR RECONSIDERATION CANNOT

SUCCEED AS AN INDEPENDENT ACTION UNDER RULE 60(d)(1)

If it is treated as an independent action under Fed. R. Civ.

P. 60(d)(1), the Motion for Reconsideration fails to show an

entitlement to relief as such. As noted in Travelers Indem. Co.

v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985), a party “cannot

use an independent action as a vehicle for the relitigation of

issues.” Instead, an independent action must meet a stringent

and demanding standard.

As noted in Sieverding v. Am. Bar Ass'n, 439 F. Supp. 2d

111, 114 n.1 (D.D.C. 2006):

An independent action, also known as an original action,

57

is a proceeding that sounds in equity and “is available

only to prevent a grave miscarriage of justice.” United

States v. Beggerly, 524 U.S. 38, 45, 47, 118 S.Ct. 1862,

141 L.Ed.2d 32 (1998). A party bringing an independent

action must show that: (1) the judgment should not, in

equity and good conscience, be enforced; (2) a good defense

exists; (3) fraud, accident, or mistake prevented him from

obtaining the benefit of his defense; (4) the absence of

fault or negligence on his part; and (5) the absence of any

adequate remedy at law. Bankers Mortgage Co. v. United

States, 423 F.2d 73, 79 (5th Cir. 1970), cert. denied, 399

U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970).

Here, the Motion for Reconsideration fails the five-element test

of Bankers Mortgage, and there has not been a “grave miscarriage

of justice.” As noted in Bankers Mortgage, 423 F.2d at 79,

“[c]ourts have consistently held that a party is precluded by res

judicata from relitigation in the independent equitable action

issues that were open to litigation in the former action where he

had a fair opportunity to make his claim or defense in that

action.” (Citations omitted.) Here, the judgment creditors have

had adequate remedies at law, specifically, a fair opportunity to

advance their position regarding the homestead exemption via

their appeal to challenge any error in the Homestead Decision and

58

via seeking relief under Rule 60(b).30 That those adequate

remedies at law are no longer available (because the judgment

creditors’ appeal has been dismissed without the judgment

creditors seeking to modify the Order dismissing their appeal and

because the judgment creditors failed timely to seek Rule 60(b)

relief) is due to the judgment creditors’ own neglect. In equity

and good conscience, the Homestead Decision is appropriately

binding on them as a matter of res judicata. In any event, the

judgment creditors have failed to demonstrate a valid defense to

the homestead exemption. There has not been a “grave miscarriage

30 As noted in Matthew v. United States, No.

3:06-CR-16-RJC-CH-1, 2018 WL 3040027, at *2 (W.D.N.C. June 19,

2018):

A party cannot use an independent action to re-litigate

issues that were open to litigation in the former action

where he had a fair opportunity to make his claim or

defense. Sinesterra v. Roy, 347 Fed. Appx. 9, 10 (5th

Cir. 2009). This requires a showing by the aggrieved

party that “there was no opportunity to have the ground

now relied upon to set aside the judgment fully litigated

in the original action.” Gleason v. Jandrucko, 860 F.2d

556, 560 (2d Cir. 1988).

See also Hoti Enters., L.P. v. GECMC 2007 C–1 Burnett St., LLC, 549

F. App'x 43, 44 (2d Cir. 2014) (emphasizing that the “failure to

raise a fraud claim within one year under Rule 60(b)(3) precludes

a litigant from alleging that the same fraud entitles it to

equitable relief [under Rule 60(d)(1)] absent extraordinary

circumstances”); Campaniello Imports, Ltd. v. Saporiti Italia

S.p.A., 117 F.3d 655, 662–63 (2d Cir. 1997) (“Having failed to take

advantage of the adequate remedy at law offered by Rule 60(b)(3),

appellants may not now seek relief in equity.”).

59

of justice” as required by Beggerly to grant relief via an

independent action.

XI

CONCLUSION

Based on the foregoing, it is

ORDERED that the Motion for Reconsideration (Dkt. No. 321) is

DENIED.

[Signed and dated above.]

Copies to: E-recipients of filings.

60

R:\Common\TeelSM\Judge Temp Docs\Salas (Max) - Decision re Mtn for Reconsideration_v31.wpd