WILLIAM ERIC MELENDEZ

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
In re: :
:
WILLIAM ERIC MELENDEZ, : Case No. 08-06925 (GAC)
:
Debtor : Chapter 13
___________________________________:
:
DECISION AND ORDER
On June 4, 2009, the Court entered an order of dismissal based
on the debtor’s failure to obtain credit counseling and file the
certificate with the Court (dkt. #80). The debtor filed a pro se
motion on June 5, 2009 to alter or amend the judgment (dkt. #82).
The debtor’s former counsel filed a reply (dkt. #83). The trustee
opposed the request for reconsideration (dkt. #86), the debtor
filed a reply (dkt. #91) and the trustee filed a sur-reply (dkt.
#92).
The debtor argues that his former counsel directed him to a
post-filing debtor education course, as opposed to the required
pre-bankruptcy counseling course and therefore, his failure to file
the certificate was due to neglect of counsel. While the case was
filed on October 16, 2008, the debtor did not comply with the
credit counseling requirement until June 5, 2009, well beyond the
time established by the statute, which, in most cases, requires
that credit counseling be obtained prior to the bankruptcy filing.
Debtor’s former counsel indicates that he repeatedly insisted
that the debtor obtain credit counseling and offered a computer
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list of options through the internet to take such counseling. The
Chapter 13 trustee likewise, opposes the debtor’s request
contending that the debtor does not satisfy the conditions for
reconsideration of the order; namely establishing a manifest error
of law or newly discovered evidence. Moreover, the trustee alleges
that the debtor’s petition was filed in bad faith. The debtor has
only one creditor and lists no regular income. The debtor has not
presented any evidence of income nor evidence of the filing of tax
returns for the past four years. The trustee also notes that the
debtor has opened a legal office in Puerto Rico, but failed to
inform the trustee, the Court or parties in interest.
The debtor seeks to alter or amend the order of dismissal
pursuant to Federal Rule of Bankruptcy Procedure 9023, which makes
Federal Rule of Civil Procedure 59 applicable. This Rule states
that “[a]ny motion to alter or amend a judgment must be filed no
later than 10 days after entry of the judgment.” Fed. R. Civ. P.
59(e). In seeking reconsideration under Federal Rule of Civil
Procedure 59(e), “the moving party must ‘either clearly establish
a manifest error of law or must present newly discovered
evidence.’” Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7 n.
2 (1st Cir. 2005)(quoting Pomerleau v. W. Springfield Pub. Sch.,
362 F.3d 143, 146 n. 2 (1st Cir. 2004)). In Marie, the First
Circuit also cited a leading treatise, noting four grounds for
granting a motion for reconsideration under Federal Rule of Civil
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Procedure 59(e). These are “manifest errors of law or fact, newly
discovered or previously unavailable evidence, manifest injustice,
and an intervening change in controlling law.” Marie v. Allied
Home Mortgage Corp., 402 F.3d at 7 n. 2 (citing 11 C. Wright et
al., Federal Practice & Procedure § 2810.1 (2d ed.1995)).
The debtor claims that his failure to take credit counseling
within 180 days prior to the filing of the petition was due to his
counsel’s failure to inform him of the proper course. The debtor
also claims that obtaining credit counseling is not jurisdictional
and that failure to obtain it does not warrant the dismissal of his
petition. The Court concludes that both of these issues were
raised by the debtor prior to the Court’s Order of Dismissal.
Moreover, the Court concludes that the debtor has failed to
demonstrate a manifest error of law or fact by merely reiterating
arguments which the Court previously considered and rejected. The
Court will not rehash the arguments here. It suffices to state
that the debtor was given numerous opportunities to file the proper
document and the case was previously dismissed for failure to
comply with the credit counseling requirement. Accordingly, the
debtor’s motion for reconsideration will be denied.
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ORDER
WHEREFORE IT IS ORDERED that the debtor’s motion to reconsider
(dkt. #82) the Order of Dismissal shall be, and it hereby is,
DENIED.
SO ORDERED.
San Juan, Puerto Rico, this 10th day of August, 2009.
BY THE COURT:
s/ Gerardo A. Carlo
_______________________
GERARDO A. CARLO
U.S. Bankruptcy Judge
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