Ciralsky v. LaBarge (In re Ciralsky)
Ciralsky v. LaBarge (In re Ciralsky)
Opinion of the Court
This is an appeal from an order of the bankruptcy court
BACKGROUND
On August 31, 2001, upon motion of the Standing Chapter 13 Trustee, John V. La-Barge, Jr. (“Trustee”), the bankruptcy court issued an order dismissing this bankruptcy case. On September 6, 2001, the Debtor, Robert P. Ciralsky (“Debtor”), filed a motion seeking to have the bankruptcy court reconsider its ruling and reinstate the case.
DISCUSSION
A bankruptcy court’s decision on a motion to reinstate a case is within the discretion of the bankruptcy court and will be reviewed only for an abuse of discretion. See Svoboda v. Educational Credit Mgmt. Corp. (In re Svoboda), 264 B.R. 190, 195 (8th Cir. BAP 2001)(noting that decisions on Rule 59(e) motions are subject to review under the abuse of discretion standard). An abuse of discretion will only be found if the lower court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions. Barger v. Hayes County Non-Stock Coop., 219 B.R. 238, 243 (citing Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996)). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court, on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The bankruptcy court gave Debtor ample opportunity to appear and be heard on the issue of whether his case should be reinstated. Debtor presented no evidence to warrant the bankruptcy court’s reinstatement of his case and did not advance any appropriate basis for altering or amending the bankruptcy court’s judgment. The motion to reinstate simply reiterated factors that the bankruptcy court had already taken into account on the Trustee’s motion to dismiss. Our review of the record reveals no abuse of discretion.
Nor did the bankruptcy court err in denying Debtor’s motion for reconsideration of the order denying reinstatement. The motion to reconsider was governed by Bankruptcy Rule 9024 which incorporates Federal Rule of Civil Procedure 60. See Fed. R. Bankr.P. 9024. Debtor offered no support for altering the bankruptcy court’s decision as to reinstatement and the circumstances of his case did not warrant the extraordinary relief provided by Rule 9024. Once again, this motion was nothing more than a re-argument of positions Debtor had taken in earlier motions. See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984); Kieffer v. Riske (In re Kieffer-Mickes, Inc.), 226 B.R. 204, 210 (8th Cir. BAP 1998).
CONCLUSION
Accordingly, having found no error, we affirm the bankruptcy court’s orders denying reinstatement of the bankruptcy case and denying the motion to reconsider.
. The Honorable Barry S. Schermer, United States Bankruptcy Judge for the Eastern District of Missouri.
. Ciralsky also filed an amended motion on September 10, 2001.
Reference
- Full Case Name
- In re Robert P. CIRALSKY, Debtor. Robert P. Ciralsky, Debtor—Appellant v. John V. LaBarge, Jr., Trustee—Appellee
- Cited By
- 1 case
- Status
- Published