Edith M. Farina

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY

COURT DISTRICT OF NEW JERSEY

Caption in Compliance with D.N.J.

Case No. 24-17517 (MBK)

LBR 9004-1(b)

Hearing Date: October 23, 2025

In Re:

Chapter 13

Edith M. Farina,

Judge: Michael B. Kaplan

Debtor

All Counsel of Record

MEMORANDUM DECISION

Presently before the Court are three motions filed by Eric S. Landau, Esq., on behalf of

Debtor, Edith M. Farina (the “Debtor” or “Movant”): (1) an emergent motion for certification of a

federal question and interlocutory appeal pursuant to 29 U.S.C. § 1292(b) (ECF No. 91) (the

“Appeals Motion”), (2) a supplemental motion to be heard on the propriety and scope of requested

judicial notice under FED. R. EVID. 201(e) (ECF No. 87) (the “Judicial Notice Motion”), and (3) a

motion to vacate order of dismissal in supplement to the motion for the court to take judicial notice

(ECF No. 107) (the “Third Motion to Vacate”) (collectively, with the Appeals Motion and the

Judicial Notice Motion, the “Motions”). The Court has considered fully Movant’s arguments and

the record in this case. For the reasons that follow, the Court will DENY the Motions in their

entirety.

I. Jurisdiction

The Court has jurisdiction over the contested matters under 28 U.S.C. §§ 1334(a) and

157(a) and the Standing Order of the United States District Court dated July 10, 1984, as amended

September 18, 2012, referring all bankruptcy cases to the bankruptcy court. These matters are

core proceedings within the meaning of 28 U.S.C. § 157(b)(2)(A), (L) and (O). Venue is proper

in this Court pursuant to 28 U.S.C. § 1408.

II. Background and Procedural History

On July 30, 2024, Edith M. Farina filed a Chapter 13 Voluntary Petition (the “Petition

Date”) assigned case number 24-17517-MBK (the “Bankruptcy Case”). On September 19, 2024,

Debtor filed a Chapter 13 Plan for the Court’s consideration (ECF No. 23), and a confirmation

hearing was scheduled for October 9, 2024. In response, on September 26, 2024, an objection to

the confirmation of the Chapter 13 Plan was filed by Steven P. Kelly, Esq., on behalf of the Bank

of New York Mellon f/k/a the Bank of New York (“BNYM”), as trustee for the certificate holders

of CWMBS, Inc., CHL Mortgage Pass-Through Trust, 2007-8 Mortgage Pass-Through

Certificates, Servies 2007-8 (ECF No. 28) (the “Chapter 13 Plan Objection”). As set forth in further

detail below, BNYM is the current holder of the note and assignee of the mortgage for Debtor’s

property located at 35 Mahlon Court, Toms River, New Jersey 08753 (the “Property”)1. BNYM

objected to Debtor’s Chapter 13 Plan because the Chapter 13 Plan did not provide any treatment

of BNYM’s lien on Debtor’s Property. Chapter 13 Plan Objection, ECF No. 28. Subsequently, on

October 8, 2024, BNYM filed a proof of claim evidencing a first mortgage lien on the Property in

the amount of $2,047,094.57 and pre-petition arrears, as of the Petition Date, in the amount of

$581,945.77 (“Claim 5-1”).

1 Debtor co-owns the Property with her husband, Emilio Farina (hereinafter “Co-Owner”).

As acknowledged by both the Debtor and BNYM, the parties have an extensive history of

litigating the validity of the assignment of the note and mortgage on the Property in both State

Court and the District Court for the District of New Jersey. The pleadings in opposition to the

Motions submitted by BNYM include a well-documented history of the foreclosure proceedings

between the parties2. Specifically, on March 8, 2013, BNYM caused to be filed a complaint in

mortgage foreclosure in the Superior Court of New Jersey, Ocean County, assigned case number

F-00765-13 (“Foreclosure Action 1”). See BNYM’s Opposition to the Judicial Notice Motion, ECF

No. 90 at ¶ 8. BNYM voluntarily dismissed Foreclosure Action 1 on May 1, 2013. Id. at ¶ 9.

Subsequently, on June 12, 2014, BNYM caused to be filed a second complaint in mortgage

foreclosure, assigned case number F-023828 (“Foreclosure Action 2”). Id. at ¶ 11. Debtor and Co-

Owner filed an answer to Foreclosure Action 2 on September 14, 2014. Id. at ¶ 12. On February

20, 2015, BNYM filed a motion for summary judgment, which the State Court granted on May 7,

2015. Id. at ¶ 13. Following the entry of an order granting the motion for summary judgment in

Foreclosure Action 2, an uncontested judgment in foreclosure was entered by the State Court on

January 5, 2016. Id. at ¶ 14. The Debtor and Co-Owner appealed the summary judgment and final

judgment order on February 29, 2016. Id. at ¶ 15. Prior to the scheduled sale of the Property, on

or about August 24, 2017, the parties entered into a loan modification agreement with Bank of

America, N.A. (“LMA”)3 and BNYM subsequently sought dismissal of Foreclosure Action 2 by

2 BNYM asserts nearly identical procedural history in its oppositions to the Motions. For purposes of

referring to the foreclosure proceedings, this Court shall cite to BNYM’s pleading in opposition to the

Judicial Notice Motion (ECF No. 90).

3 The Debtor and Co-Owner executed and delivered to Bank of America, N.A., a loan modification

agreement, which is reflected in Claim 5-1.

motion on November 20, 2017, which was granted by the State Court on January 5, 2018. Id. at ¶

16-17.

On December 17, 2018, BNYM caused to be filed a third complaint in mortgage

foreclosure, assigned case number F-024744-18 (“Foreclosure Action 3”). Id. at ¶ 18. Following

a denial of a motion to dismiss Foreclosure Action 3, Debtor and Co-Owner filed a contested

answer with counterclaims on May 14, 2019. Id. at ¶ 19. BNYM filed a motion for summary

judgment on July 24, 2019. Id. at ¶ 20. On November 8, 2019, the State Court issued an order

granting summary judgment and striking Debtor’s answer, affirmative defenses and counterclaims.

Id. at ¶ 21. Ultimately, after several years of litigation in Foreclosure Action 3, including an appeal,

BNYM submitted its motion for final judgment (“Final Judgment Motion”) on July 23, 2024. Id.

at ¶ 22. However, the State Court stayed the Final Judgment Motion upon learning of the Debtor’s

Bankruptcy Case. Id. at ¶ 23.

In addition to the foreclosure proceedings, during the pendency of Foreclosure Action 2,

Debtor and Co-Owner filed an action for declaratory judgment against BNYM in the District Court

for the District of New Jersey on May 18, 2015 (the “District Court Action”). Id. at ¶ 24. The

central issue in the District Court Action was the Debtor’s challenge to BNYM’s standing as the

secured lender. Id. at ¶ 25. In response, BNYM, along with related defendants, filed a motion to

dismiss, which the District Court granted on October 14, 2015. Id. at ¶ 26-27. The Debtor and Co-

Owner subsequently appealed the District Court Action dismissal to the Third Circuit on October

30, 2015 (“Third Circuit Appeal 1”). Id. at ¶ 28. Third Circuit Appeal 1 was remanded back to the

District Court and BNYM filed a second motion to dismiss the District Court Action on December

10, 2021, which was granted on July 29, 2022. Id. at ¶ 29-30. Following the entry of the order

granting BNYM’s second motion to dismiss, the Debtor and Co-Owner filed a motion to alter or

amend judgment on August 26, 2022. Id. at ¶ 31. This motion was denied by the District Court on

November 28, 2022, and as a result, the Debtor filed yet another appeal to the Third Circuit on

December 15, 2022 (“Third Circuit Appeal 2”). Id. at ¶ 32. On September 27, 2023, the Third

Circuit Court entered judgment in Third Circuit Appeal 2, affirming the dismissal of the District

Court Action. Id. at ¶ 33.

Returning to the activity before this Court, on October 22, 2024, Debtor filed an objection

to Claim 5-1 (ECF No. 33) (the “Claim Objection”). Thereafter, the confirmation hearing went

forward on October 23, 2024. The Debtor participated at the hearing. At the conclusion of the

hearing, the Court determined that dismissal of the Bankruptcy Case was appropriate for the

following reasons: (i) the Debtor’s failure to provide required documents to the Trustee prior to

the § 341(a) meeting, resulting in the meeting not being held; (ii) the Debtor’s failure to make all

required pre-confirmation payments to the Trustee; and (iii) for lack of prosecution. See First

Dismissal Order, ECF No. 35.

On October 24, 2024, in response to the Court’s dismissal of the Case, Debtor filed a

motion to vacate dismissal (ECF No. 36) (the “First Motion to Vacate”). A hearing on the First

Motion to Vacate was scheduled for December 11, 2024, and the hearing on Debtor’s Claim

Objection was to occur concurrently. On December 4, 2024, BNYM filed its certification in

opposition to Debtor’s Claim Objection (ECF No. 39). On December 5, 2024, the Chapter 13

Trustee filed an objection to the First Motion to Vacate (ECF No. 40). On December 12, 2024,

after considering the parties’ submissions, the Court entered an Order granting the First Motion to

Vacate (ECF No. 44) and a new confirmation hearing date was scheduled for January 29, 2025, to

confirm a modified Chapter 13 Plan (the “Modified Plan”). Subsequently, the confirmation hearing

date was adjourned to March 12, 2025, and the hearing for Debtor’s Claim Objection was

adjourned to the same day.

On February 12, 2025, Debtor filed a response to BNYM’s opposition to Debtor’s Claim

Objection (ECF No. 56). On February 20, 2025, the Chapter 13 Trustee filed an objection to

Debtor’s Modified Plan (ECF No. 60). On March 7, 2025, Debtor filed a certification in opposition

to the Chapter 13 Trustee’s objection to the Modified Plan (ECF No. 63). In response, the Chapter

13 Trustee filed a supplemental objection to the Modified Plan on March 11, 2025 (ECF No. 65).

At the hearing held the next day, on March 12, 2025, the Court had little difficulty in adopting the

position of the Standing Chapter 13 Trustee that, notwithstanding that the Bankruptcy Case had

been pending for nearly eight months, the Debtor was not in a position to confirm a plan; the Court

denied confirmation and dismissed the Bankruptcy Case. Moreover, the Court stressed that it had

no intention of providing yet a third forum for the Debtor to relitigate issues relative to the validity

of the assignment of the note and mortgage and the standing of the foreclosing lender. The Court

clearly articulated its inclination to abstain from resolution of the claim objection, had it been

necessary, in favor of continuation of the pending foreclosure proceeding before the State court:

THE COURT: I think, well, I actually was unaware of the District

Court matter that was pending. Where I may have been aware of it

at one point, but I certainly wasn’t aware in prepping for today. I’m

actually, Mr. Deshmukh [Debtor’s prior counsel], I think I’m going

to do you more of a favor. I’m going to dismiss this case without

prejudice. New counsel, whether it be you or someone else, can

come in and start again, but I agree with Mr. Collazo [Staff Attorney

for Standing Chapter 13 Trustee] that there’s nowhere this case can

go . . . So, I’ll dismiss the case without prejudice. I’m not ruling on

any of the merits of the matters that have been brought before me

today, apart from the Court’s indication that had it not dismissed the

case, it would have abstained and granted stay relief. If I’m

dismissing, I don’t need to grant stay relief. The parties are free to

continue in State Court.

3/12/2025 Hearing Transcript, 8:8-25.

On March 13, 2025, the Court entered an order (ECF No. 72) denying without prejudice,

the Debtor’s Claim Objection. In addition, on March 17, 2025, the Court entered an order

dismissing the Bankruptcy Case due to lack of prosecution and Debtor’s failure to resolve the

Trustee and/or creditor objections. See Second Dismissal Order, ECF No. 78. On March 27, 2025,

Debtor filed a second motion to vacate dismissal (ECF No. 83) (the “Second Motion to Vacate”).

Soon after, Debtor retained new counsel, Mr. Landau, which was followed by a series of

adjournment requests by Debtor’s new counsel and a flurry of new and late-filed motions: Motion

re: Supplement Motion for Judicial Notice (ECF No.87), Motion to Compel the Scheduling of an

Evidentiary Hearing and Testimony (ECF No. 89) and Notice of Emergent Motion for

Certification of a Federal Question and Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)

(ECF No. 91). Consideration of the latter motions was deferred, at Debtor’s counsel’s request, and

the Court heard oral argument with respect to the Second Motion to Vacate on July 16, 2025. In

the Court’s bench ruling denying the Second Motion to Vacate, the Court went to great lengths to

once again explain that dismissal of the Bankruptcy Case was bottomed on Debtor’s failure to

meet the administrative, procedural and substantive requirements necessary to confirm a chapter

13 plan:

THE COURT: At the time this case was dismissed, it was dismissed

for a number of reasons, all relating to the failure to prosecute. The

prior counsel had not resolved the issues of the mortgage, primarily,

which had to be resolved in order to move forward with

confirmation of the debtor’s plan. At the prior hearing, I indicated

that I was inclined and had I not dismissed the case, I would have

abstained from hearing the claims objection with respect to

objection to Proof of Claim 5-1. With respect to both proofs of claim

that were the subject of objections, there was a failure by counsel at

the time to properly file the objections consistent with the local

rules. Putting that aside, given the Court’s unquestioned right and

discretion under 28 U.S.C. 1334(c)(1) to abstain where the interest

of justice or the interest of comity or for respect for State Law from

hearing a particular proceeding arising under Title 11, arising in or

related to a case under Title 11.

***

The Court explained its inclination to abstain given the State court

history which involved at least two foreclosure proceedings. My

understanding was at the time that there had been summary

judgment in favor of the lender in the State Court matter, but that a

final judgment had not been entered as a result of the bankruptcy

filing. It was also my understanding that there’s been litigation in

the District Court

with respect to the validity of and enforceability of the mortgage

lien. Those pieces of litigation have gone, have proceeded for years.

They went through appeals. My understanding is that the District

Court litigation went all the way up to the Third Circuit and back

down to the District Court. There have been appeals in the State

court, to my understanding. But in light of the history and the

standards for permissive abstention, this Court was not going to yet

inject itself as a third forum. When looking at the standards for

permissive abstention, courts review the effect

on the administration of the estate in light of an abstention, the extent

to which State law issues predominate over bankruptcy issues, the

difficulty or unsettled nature of applicable State law, the presence of

a related proceeding commenced in State court

or other non-bankruptcy courts, the jurisdictional basis, if any, other

than 28 U.S.C. Section 1334, also the substance, rather than the form

of the asserted matter. And to this Court, two significant issues, the

burden on the Court’s docket, but more importantly the likelihood

that the commencement of the proceeding in a bankruptcy court

involved forum shopping by one of the parties. These are all well

established, recognized standards for permissible abstention…. In

essence, this Court viewed the debtor’s filing as part of a dilatory

strategy trying to find yet another forum to litigate the validity of the

mortgage and the enforceability of the

mortgage. And the Court decided at that point in time, given the

failure to move the case forward in what was almost a year by the

time of the prior hearing, that the court that was in the best position

to weigh in on the validity and enforceability of the mortgage was

the State court where there was a pending application, I believe, for

a final judgment, where there could be further appeals, but not from

the inception the bankruptcy court. And given that the plan was not

in a position to be confirmed, not only because of a failure to resolve

the objections, the claim objections, but also for the other

administrative matters noted by the Trustee, the Court dismissed the

Chapter 13 case without prejudice and decided that in light of the

dismissal there was no need to abstain. If I were to vacate the

dismissal, I would still be abstaining from hearing the claims

objection and you would be back in State court anyway.

7/16/2025 Hearing Transcript, 14:7-17:3 (emphasis added).

Subsequent to the hearing, the Court entered an Order Denying the Second Motion to

Vacate. Order Denying Second Motion to Vacate, ECF No. 96. Simply put, the Debtor had not

satisfied any of the criteria necessary for relief under either FED. R. CIV. P. 59 or 60. To date,

Debtor has not appealed either the Dismissal Order, dated March 17, 2025, or the Second Dismissal

Order, dated July 18, 2025. Notwithstanding that the Bankruptcy Case remains dismissed as of

March 17, 2025, the deferred motions—which had been continued to a later date at the request of

Debtor’s counsel—have remained on the Court’s calendar (and were continuously adjourned

thereafter at counsel’s request). What has followed, however, is yet another flurry of last-minute

and confusing “supplemental” filings which continue to demand the same relief addressed

previously and denied. This Court scheduled oral argument on the Motions for October 23, 2025.

In response, BNYM filed certifications in opposition to the Judicial Notice Motion (ECF No. 87)

and to the Appeals Motion (ECF No. 91). See BNYM’s pleadings in Opposition, ECF Nos. 90 and

101. After considering the parties’ submissions and oral arguments, the Court held the matters on

reserve.

III. Arguments of the Parties

A. The Debtor’s Position4

The Debtor generally contends that Claim 5-1 misrepresents the facts concerning the chain

of title for the note and mortgage on the Property. See Claim Objection, ECF No. 33. The Debtor

and Co-owner executed a mortgage dated May 2, 2007, which was recorded on June 6, 2007, with

4 This section summarizes the Debtor’s position on key issues underlying her Claim Objection (ECF No.

33), which the Debtor asserts in a similar fashion in each Motion (ECF Nos. 87, 91, and 107).

Countrywide Home Loans, Inc., listing MERS Inc. as nominee for the lender. Id. at ¶ 3. On

September 21, 2011, MERS purportedly assigned the mortgage to BNYM, which was recorded on

October 4, 2011. Id. at ¶ 4. The Debtor argues that Claim 5-1 fails to show that BNYM lawfully

holds the note and mortgage or acquired them before default to qualify as a secured creditor. Id. at

¶ 7. Because MERS Inc. was neither the lender, servicer, nor holder of any beneficial interest, the

Debtor maintains that MERS Inc. lacked authority to assign any rights on behalf of Countrywide

Home Loans, Inc. Id. at ¶ 9-10. The Debtor further asserts that, since Countrywide ceased

operations in 2009, it could not have validly transferred any interest in 2011. Id. at ¶ 11-13. As a

result, the Debtor argues BNYM lacks standing to enforce the note and mortgage as BNYM is not

a secured creditor under the Bankruptcy Code, but rather a debt collector.

B. BNYM’s Position

In opposition, BNYM asserts that as Trustee for the Certificate holders of CWMBS, Inc.,

CHL Mortgage Pass-Through Trust 2007-8 Mortgage Pass-Through Certificates, Series 2007-8,

BNYM is the current holder of the note and assignee of the mortgage. See BNYM’s Opposition to

the Judicial Notice Motion, ECF No. 90 at ¶ 7. BNYM points out that the issue the Debtor

continues to challenge in the Motions – the validity of the assignment of the note and mortgage –

has been the subject of litigation in Foreclosure Action 3, the District Court Action, the Third

Circuit Appeal 1 and the Third Circuit Appeal 2, all of which ruled against Debtor as to BNYM’s

standing as the secured lender. Id. at ¶ 53. Accordingly, BNYM argues that the Motions merely

reiterate arguments previously presented to this Court. Therefore, BNYM maintains that the relief

sought in the Debor’s Motions should be denied, as it has already been established that BNYM is

the lawful holder and assignee of the note and mortgage related to the Property.

IV. Discussion

A. Summary of Relief Sought

Debtor’s Third Motion to Vacate (ECF No. 107) is titled “Debtor’s omnibus Motion to

Vacate Void Order of Dismissal in Supplement to the Motion for the court to Take Judicial

Notice.” The Third Motion to Vacate requests an order: (i) vacating as void ab initio the Order of

Dismissal entered March 17, 2025; (ii) reinstating Debtor’s Chapter 13 Case; (iii) scheduling an

evidentiary hearing on Debtor’s objection to Proof of Claim 5; and (iv) granting such other and

further relief as the Court deems just and proper. Debtor’s Judicial Notice Motion (ECF No. 87)

is a motion for an order scheduling a hearing so that the Debtor may be heard on the propriety and

scope of the judicial notice sought in connection with the Claim Objection and the Third Motion

to Vacate under FED. R. EVID. 201(e).

Finally, Debtor’s Appeals Motion is titled “Notice of Emergent Motion for Certification of

a Federal Question and Interlocutory Appeal pursuant to 28 U.S.C. § 1292(b)” (ECF No. 91). Here,

the Debtor moves for an order certifying interlocutory appeal to the United States Court of Appeals

for the Third Circuit pursuant to 28 U.S.C. § 1292(b). Debtor makes this motion due to the Court’s

alleged failure to conduct a mandatory evidentiary hearing under FED. R. EVID. 201(e), improper

reliance on unauthenticated documents in violation of FED. R. EVID. 901 and FED. R. CIV. P. 43(c),

and the absence of Article III standing by the claimant, which Debtor asserts raises controlling

constitutional and statutory questions of law warranting immediate appellate review.

BNYM has submitted pleadings in opposition to the Motions.5 See, e.g., ECF Nos. 90 and

101. To summarize, BNYM requests that the Court deny the Judicial Notice Motion on the grounds

5 The Debtor filed the Third Motion to Vacate on October 6, 2025, with an application to shorten time

requesting that the Court hear the Motions on the same date (ECF No. 108). The Court granted the

application to shorten time and scheduled the hearing on the Motions on October 23, 2025, allowing any

that the facts that Debtor seeks to have noticed are subject to reasonable dispute and therefore,

Debtor fails to meet the requirements for judicial notice under FED. R. EVID. 201. BNYM further

requests that the Court deny the Appeals Motion as Debtor has not met the requirements of 28

U.S.C. § 158(d).6

B. Analysis

I. There is No Basis Upon Which to Grant Relief Under Fed. R. Civ. P.

60(b)

Once again, the Debtor implores the Court to revisit and reconsider7 the Court’s decision

to dismiss, without prejudice, the Debtor’s Chapter 13 Bankruptcy Case at the scheduled

confirmation hearing.8

objections to the Third Motion to Vacate to be presented orally at the hearing (ECF No. 109). For this

reason, BNYM did not submit a pleading in opposition to the Third Motion to Vacate.

6 As stated in BNYM’s Certification of Opposition to the Appeals Motion – and this Court concurs – the

Debtor improperly cites to 28 U.S.C. § 1292(b) as the basis for the requested relief despite BAPCPA

creating a direct appeal under 28 U.S.C. § 158(d). Therefore, BNYM addresses the Debtor’s Appeals

Motion under Section 158(d). As set forth in the Analysis Section, the Court also addresses the Appeals

Motion under the same rule.

7 Movant’s arguments are multifaceted and at times hard to follow. At the outset, this Court notes that the

Federal Rules of Bankruptcy Procedure do not recognize a “motion for reconsideration.” A “motion for

reconsideration” is not mentioned in either the Federal Rules of Civil Procedure or the Federal Rules of

Bankruptcy Procedure. Nor is it referenced in the Local Bankruptcy Rules. However, litigants may seek

relief from any order of the bankruptcy court under FED. R. BANKR. P. 9023 and 9024, which incorporates

FED. R. CIV. P. 59(e) and 60(b). Therefore, the Court addresses these two alternate bases for reconsideration.

8 Curiously, Counsel argues that dismissal of the case at the confirmation hearing, without additional notice,

somehow deprives his client of her due process rights, warranting relief. Counsel has overlooked, however,

the content of the Notice of Confirmation Hearing generated by our Court and placed on the docket (ECF

No. 24), which expressly advises “If, at the confirmation hearing, it is determined that the debtor's

plan is not confirmable, the case may be dismissed or converted.”

a. Motion for Reconsideration under Federal Rule of Civil Procedure

59(e)

A motion under FED. R. CIV. P. 59(e) is a motion to alter or amend a judgment and is

applicable to bankruptcy cases under Rule 9023 of the Federal Rules of Bankruptcy Procedure. A

court should only grant a Rule 59(e) motion where the party seeking reconsideration shows at least

one of the following grounds: (1) an intervening change in controlling law; (2) the availability of

new evidence not available previously; or (3) the need to correct clear error of law or prevent

manifest injustice. In re Energy Future Holdings Corp., 904 F.3d 298, 311 (3d Cir. 2018) (internal

quotations and citations omitted). This Court recognizes that, a motion for reconsideration will not

be “used as a vehicle to reargue” matters already argued and disposed of, or as an attempt to

relitigate a point of “disagreement” between the [c]ourt and the litigant. In re Christie, 222 B.R.

64, 67–68 (Bankr. D.N.J. 1998) (internal citations and quotations omitted). A motion under this

rule must be filed within 14 days after the judgment has been entered. FED. R. CIV. P. 59(b).

Debtor’s Third Motion to Vacate was filed on October 17, 2025, nearly 90 days after entry of the

Second Dismissal Order and is therefore too late for the Court’s consideration.

b. Motion for Reconsideration under Federal Rule of Civil Procedure

60(b)

FED. R. CIV. P. 60(b) is applicable to bankruptcy cases under Rule 9024 of the Federal

Rules of Bankruptcy Procedure, and provides that a party seeking relief from a judgment or order

must satisfy at least one of the six (6) enumerated bases for relief from any order—many of which

mirror the grounds for relief in a Rule 59(e) motion, including “mistake, inadvertence, surprise, or

excusable neglect”. FED. R. CIV. P 60(b)(1). Rule 60(b) also includes a “catchall” basis which

allows reconsideration of a prior order for “any other reason that justifies relief”. FED. R. CIV. P.

60 (b)(6). The Supreme Court has recently reaffirmed that a motion for reconsideration under Rule

60(b) is an extraordinary remedy and is only appropriate in select and narrow instances. BLOM

Bank SAL v. Honickman, 145 S. Ct. 1612 (2025). The Debtor has neither argued for—nor

demonstrated a basis upon which the Court may grant—relief under FED. R. CIV. P. 60(b) and

therefore, her arguments lack legal support.

The Debtor argues that once an objection is filed, the Court must enter findings of fact and

conclusions of law because allowance or disallowance of a claim is a core proceeding under 28

U.S.C. § 157(b)(2)(B). As stated above, the Court entered a Second Order of Dismissal on March

17, 2025 (ECF No. 78). Subsequently, on March 27, 2025, the Debtor filed the Second Motion to

Vacate. Second Motion to Vacate, ECF No. 83. After considering the pleadings, the Court entered

an Order denying the Second Motion to Vacate (ECF No. 96). In the denying the Second Motion

to Vacate, the Court held in pertinent part:

[T]he Court previously dismissed the Debtor’s Chapter 13 case for

failure to prosecute, which included, among other deficiencies, the

failure to resolve the Debtor’s objection to [BNYM’s] proof of

claim. The [c]ourt had expressed its intent to abstain from hearing

the Debtor’s claim objection in favor of final resolution of the

pending foreclosure litigation in the New Jersey State Court.

Order Denying Second Motion to Vacate, ECF No. 96. Although the Debtor has previously been

advised of the Court’s reasoning, the Debtor continues to conflate issues by mischaracterizing the

basis for dismissal. The Debtor correctly notes the allowance or disallowance of a claim constitutes

a “core proceeding” under 28 U.S.C. § 157(b)(2). However, the dismissal of the Debtor’s case was

bottomed on the Debtor’s failure to have her Bankruptcy Case in a position to confirm a plan eight

months after it was filed. As noted in the language quoted above from the hearing held on March

12, 2025, the Court expressly ruled that it was not adjudicating the allowance/disallowance of

BNYM’s claim, leaving that task for the State Court. At the heart of Movant’s argument is that the

Court was lacking the authority to permissibly abstain from hearing and resolving the Claim

Objection—ostensibly a core matter—and, thus, the Court should not have dismissed the

Bankruptcy Case without first addressing the Claim Objection. Debtor’s understanding of

abstention principles under 28 U.S.C. § 1334(c) is simply wrong. Section 1334(c)(1) allows “a

district court in the interest of justice, or in the interest of comity with State courts or respect for

State law, [to] abstain[ ] from hearing a particular proceeding arising under title 11 or arising in or

related to a case under title 11.” See Ezell v. PHH Mortgage Corporation, 2023 WL 5049471, at

*2 (Bankr. D.N.J. Aug. 8, 2023) (discussing § 1334(c)(1)); In re LTC Holdings, Inc., 587 B.R. 25,

30 (Bankr. D. Del. 2018) (noting that while mandatory abstention may only be raised on motion

by a party, a bankruptcy court may sua sponte raise and consider permissive abstention). In

determining whether to permissively abstain, courts apply a twelve-factor test, however “not all

factors necessarily need to be considered,” and courts may “apply the factors flexibly” depending

on the facts and issues of the case. See G-I Holdings, 2017 WL 1788656, at *13 (D.N.J. May 5,

2017). The twelve factors include:

(1) The effect or lack thereof on the efficient administration of the

estate if a court recommends abstention; (2) the extent to which state

law issues predominate over bankruptcy issues; (3) the difficulty or

unsettled nature of the applicable state law; (4) the presence of a

related proceeding commenced in state court or other non-

bankruptcy court; (5) the jurisdictional basis, if any, other than 28

U.S.C. § 1334; (6) the degree of relatedness or remoteness of the

proceeding to the main bankruptcy case; (7) the substance rather

than form of an asserted “core” proceeding; (8) the feasibility of

serving state law claims from core bankruptcy matters to allow

judgments to be entered in state court with enforcement left to the

bankruptcy court; (9) the burden of the court’s dockets; (10) the

likelihood that the commencement of the proceeding in a

bankruptcy court involves forum shopping by one of the parties;

(11) the existence of a right to a jury trial; and (12) the presence in

the proceeding of non-debtor parties.

Ezell, 2023 WL 5049471 at *3. In applying the factors to the totality of circumstances present in

the instant matter, it is clear the Debtor seeks an alternate forum, yet again, to relitigate state-law

foreclosure issues, which have been adjudicated in the State Court and District Court. In sum, the

Debtor has therefore not demonstrated any grounds warranting relief from judgment under Rule

60(b).

II. There is No Basis for the Court to Take Judicial Notice under Fed. R.

Evid. 201 in a Dismissed Case

The Debtor’s request for judicial notice under FED. R. EVID. 201 is moot, as the underlying

Bankruptcy Case remains dismissed and, in any event, does not relate to Debtor’s Third Motion to

Vacate but instead relates only to the Debtor’s Claim Objection, which is no longer pending before

the Court.

Even so, and as BNYM points out in its opposition, the facts that Debtor seeks to have

judicially noticed are facts and legal conclusions which are subject to reasonable dispute. See

BNYM’s Opposition to the Judicial Notie Motion, ECF No. 90 at ¶ 46. As a preliminary matter, a

court may take judicial notice of facts “that [are] not subject to reasonable dispute because [they

are] (1) generally known within the trial’s court’s territorial jurisdiction; or (2) can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R.

EVID. 201(b). Moreover, a court “may take judicial notice of adjudicative facts not subject to

reasonable dispute . . . so long as it is not unfair to a party to do so and does not undermine the

trial court’s fact-finding authority.” In re Simon, 666 B.R. 289, 298, n.19 (Bankr. M.D. Pa. 2025)

(quoting In re Indian Palms Assocs., Ltd., 61 F.3d 197, 205 (3d Cir. 1995)).

Debtor’s requests for judicial notice are frivolous. The issue of standing has been raised

and litigated in Foreclosure Action 3, the District Court Action, Third Circuit Appeal 1 and Third

Circuit Appeal 2. It would be inappropriate for this Court to revisit or otherwise undermine the

fact-finding authority of those tribunals. Id. Even assuming, arguendo, that the foregoing were not

true, the Debtor nonetheless concedes in her own filings that the facts she seeks to have judicially

noticed are subject to dispute. For example, in the Appeals Motion, one of the questions Debtor

seeks to certify is:

1.Whether a bankruptcy court has a mandatory, non-discretionary

duty under Federal Rule of Evidence 201(e) to schedule an

evidentiary hearing when a party timely objects to judicial notice

and requests to be heard, particularly where the underlying facts

are in dispute and no opposing party has submitted affidavits or

competent evidence to rebut those factual challenges.

Appeals Motion, ECF No. 91 ¶ at 4 (emphasis added). This proves further that the Debtor has not

demonstrated any grounds to warrant judicial notice under FED. R. EVID. 201.

III. The Dismissal of Debtor’s Bankruptcy Case Does Not Raise Any Issues

That Merit Direct Appeal

The Debtor does not satisfy the requirements of 28 U.S.C. § 158(d) as fully set forth herein.

Motions for direct appeal to the court of appeals are governed by 28 U.S.C. § 158(d)(2), which

provides that a district court may certify a final order for immediate appeal to the court of appeals.

In accordance with section 158(d)(2)(A) and (B), certification is mandatory if the Court determines

that any of the following exist:

(i) the judgment, order, or decree involves a question of law as to

which there is no controlling decision of the court of appeals for the

circuit or of the Supreme Court of the United States, or involves a

matter of public importance;

(ii) the judgment, order, or decree involves a question of law

requiring resolution of conflicting decisions; or

(iii) an immediate appeal from the judgment, order, or decree may

materially advance the progress of the case or proceeding in which

the appeal is taken.

28 U.S.C. § 158(d)(2)(A). Subsection 158(d)(2)(B) provides that certification to the Third Circuit

Court of Appeals is mandatory if the Court determines that circumstances specified in (i), (ii), or

(iii) of subparagraph (A) exists. The direct-appeal pathway for a bankruptcy court order under 28

U.S.C. § 158(d)(2) was enacted to “foster the development of coherent bankruptcy-law precedent”

by facilitating “guidance on pure questions of law” from the circuit courts of appeals. Weber v.

United States, 484 F.3d 154, 158–59 (2d Cir. 2007). It is generally reserved for gaps or conflicts

in bankruptcy-law precedent—when the order “involves a question of law as to which there is no

controlling decision” or “involves a question of law requiring resolution of conflicting decisions.”

28 U.S.C. § 158(d)(2)(A)(i), (ii). Certification may also be granted for an order that “involves a

matter of public importance” or for which immediate appeal “may materially advance the progress

of the case,” § 158(d)(2)(A)(i), (iii), but courts construe these secondary provisions “narrowly.”

Polk 33 Lending LLC v. THL Corp. Fin., Inc. (In re Aerogroup Int’l, Inc.), 2020 WL 757892, at

*5 (D. Del. Feb. 14, 2020).

In the Appeals Motion, the Debtor seeks, in the event the Court denies the Third Motion to

Vacate, the certification of alleged constitutional questions for interlocutory appeal to the Third

Circuit Court of Appeals, purportedly to address ongoing jurisdictional and constitutional harm.

However, the Debtor’s reliance on the applicable rule is misplaced. As BNYM correctly notes, no

final judgment or order exists with respect to the Debtor’s Claim Objection – the very issue

underlying the Appeals Motion. See BNYM’s Opposition to the Appeals Motion, ECF No. 101 at

¶ 51. As stated above, the Court declined to take up Debtor’s Claim Objection, in favor of final

resolution of the pending foreclosure litigation in State Court. A bankruptcy court may, in the

interest of justice, or in the interest of comity with State courts, abstain from hearing a particular

proceeding arising or relating to a case under Title 11 of the United States Code. 28 U.S.C. §

1334(c)(1). Moreover, any decision to abstain or not abstain under subsection (c) “is not

reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292

of this title . . .” § 1334(d) (emphasis added). Here, not only is there no final order with respect to

the allowance of BNYM’s claim which can be subject to appellate review9, but were the Court to

abstain from ruling on Debtor’s Claim Objection, such a decision is not reviewable on appeal.

Even if the Court entered a disposition on Debtor’s Claim Objection, certification

ordinarily is inappropriate when there is an opportunity to build additional precedent because the

lower court’s order involves questions of fact, mixed questions of fact and law, or the application

of well-settled law to a particular set of facts. See Weber v. U.S. Tr., 484 F.3d 154, 158 (2d Cir.

2007) (“Congress believed direct appeal would be most appropriate … to resolve a question of law

not heavily dependent on the particular facts of a case”). Courts in this circuit have rejected

requests to certify fact-bound orders. See In re Tribune Co., 477 B.R. 465, 472 (Bankr. D. Del.

2012). Similarly, because § 158(d)(2) was enacted to promote the creation of bankruptcy

precedent, courts have similarly refused to certify cases intertwined with the application of non-

bankruptcy law. See, e.g., In re Tribune Co., 477 B.R. at 472 (“Interpretation of the PHONES

Indenture requires application of state law and is not appropriate for direct appeal to the Third

Circuit.”); Am. Home Mortg. Inv. Corp. v. Lehman Bros. Inc. (In re Am. Home Mortg. Inv. Corp.),

408 B.R. 42, 44 (D. Del. 2009) (similar); Bepco LP v. Globalsantafe Corp. (In re 15375 Mem’l

Corp.), 2008 WL 2698678, at *1 (D. Del. July 3, 2088) (similar). The instant matter presents the

same bar for direct appeal and therefore, the Debtor’s request for certification is denied.

9Again, the Debtor has never filed an appeal in the Bankruptcy Case, and in particular, has never appealed

the Court’s Dismissal Orders.

V. Conclusion

For the aforementioned reasons, the Motions (ECF Nos. 87, 91, and 107) are DENIED.

The Court will enter an appropriate form of Order.

[whe Michael B. Kaplan

United States Bankruptcy Judge

Dated: November 24, 2025

Page 20 of 20