Mirtha E. Davalos

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
MIRTHA E. DAVALOS,
dba El Bosque Builders, LLC,
Debtor. 	No. 7-09-13215 SS
MEMORANDUM OPINION ON DEBTOR’S
MOTION FOR RECONSIDERATION
This matter is before the Court on Debtor’s pro se Motion
for Reconsideration (doc 45) of an Order Granting Trustee’s
Motion to Sell Estate’s Interest in Real Property Free and Clear
of Liens (doc 42) and the Trustee’s Response (doc 60). 	This is a
core proceeding. 	28 U.S.C. § 157(b)(2)(A). 	The Court conducted
a hearing on April 1, 2010 at which the Debtor asked questions
and further presented her motion, and at which the Trustee
(Yvette Gonzales), her former counsel (Douglas Booth), and the
attorney for Century Bank (Donald Wolcutt) attended and were
given the opportunity to speak. 	For the reasons set forth below,
the Court finds that the Motion for Reconsideration is not well
taken and should be denied.
Any motion filed within ten days of the entry of a
judgment that questions the correctness of the judgment is
properly treated as a Rule 59(e) motion, regardless of how it is
styled or construed. 	Phelps v. Hamilton, 122 F.3d 1309, 1323-24
(10th Cir. 1997)(Decided under previous version of Rule 59.) 	In
this case the Order was entered on March 10, 2010 and the Motion
for Reconsideration was filed on the same day.
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Motions under Rule 59(e) to alter or amend a judgment should
be granted only to present newly discovered evidence or to
correct manifest errors of law. 	Id. at 1324. 	See also Adams v.
Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n. 5 (10th
Cir. 2000)(Same.)
HISTORY OF THE CASE
On July 23, 2009, Debtor filed a voluntary Chapter 7
petition and accompanying papers. 	(Doc 1). 	On her Schedule A
she listed ten parcels of real estate, including 3038 Governor
Lindsey Road, Santa Fe, New Mexico (her residence) and 843
Colonistas Campestres, Santa Fe, New Mexico (the property that is
subject to this motion). 	The residence was valued at $445,000
with a lien against it for $430,000. 	Debtor claimed the $15,000
equity exempt on Schedule C under 11 U.S.C. § 522(d)(1). 	The
Colonistas property was valued at $210,000 with a lien against it
for $195,455.64. 	Debtor claimed $5,094.71 exempt on Schedule C
under 11 U.S.C. § 522(d)(5). 	The first meeting of creditors was
scheduled for September 9, 2009. 	(Doc 2). 	The first meeting was
held and concluded. 	(Doc 18). 	On September 14, 2009, the
Trustee deferred a determination of assets. 	(Docket entry after
doc 19). 	No timely objections were filed to Debtors’ exemptions.
On November 16, 2009, Debtor’s discharge was entered. 	(Doc 24).
On November 17, 2009, the Final Decree was entered (doc 25) and
the case was closed. 	On November 19, 2009, the Court entered an
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Order Setting Aside Final Decree and Reopening the Case and
Notice of Appointment of Trustee. 	(Doc 27). 	The Order states:
“It appearing to the court that a final decree closing case was
inadvertently entered in this case on November 17, 2009, IT IS
ORDERED that the final decree closing case entered on November
17, 2009, is set aside.” 	The case was reopened on November 19,
2009. 	The Trustee filed a Report of Assets on December 22, 2009.
The Trustee then learned that Debtor had a pending sale of
Colonistas for $355,000. 	Trustee contacted the purchasers and
received an offer to sell the Colonistas property for $352,000.
Trustee filed a Motion to Sell Estate’s Interest in Real Property
Free and Clear of Liens on February 3, 2010. (Doc 33). 	The
Motion to Sell provides that it will pay the Debtor’s $5,094.71
exemption at closing. 	On February 24, 2009, Debtor, through
counsel, filed an objection to the sale. 	(Doc 38). 	Debtor
argues that the discharge, final decree and subsequent closure of
the case acted as an abandonment under 11 U.S.C. § 554(c).
Debtor also cites to Woods v. Kenan (In re Woods), 173 F.3d 770,
775 (10 th Cir.), cert. denied, 528 U.S. 878 (1999) and Ohio v.
Kovacs, 469 U.S. 274, 285 n 12 (1985). 	Debtor further argues
that the subsequent reopening of the case does not alter the fact
that all unadministered assets were abandoned “to the debtor.”
Debtor states that she now wants to live in the Colonistas
property because all of her other properties have been
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1See Woods, 173 F.3d at 778 (“Unlike an abandonment under §
554(a)-(b), which by very definition must be intentional and
unequivocal and to which the general rule of irrevocability
applies rather strictly, see, e.g., 	In re Gibson, 218 B.R. 900,
904 (Bankr. E.D. Ark. 1997), a technical abandonment may occur
inadvertently as an automatic consequence of premature case
closing.”)
2The Trustee had not yet filed a report of assets or a no-
asset report.
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foreclosed. 	Trustee replied on March 4, 2010, arguing that the
Bankruptcy Clerk inadvertently closed the case, this error was
recognized in the Order that set aside the final decree, and that
Fed.R.Bankr.P. 9024 and Fed.R.Civ.P. 60(b) allow the court to
revoke a technical abandonment. 	She also cites Woods. 	(Doc 40).
The Court held a hearing on the Motion and Objection on March 8,
2009, made findings and conclusions on the record, and granted
the motion to sell. 	(Minutes, Doc 41).
In the oral ruling, the Court stated the general rule that
11 U.S.C. § 554(c) is applicable only when there is a knowing and
voluntary closing of the case 1. 	Although Debtor argued that the
case was not inadvertently closed, the Court found the case was
closed through inadvertence 2 . 	Therefore, the technical
abandonment rule should not apply. 	As a second argument, Debtor
argued that in Woods, 173 F.3d at 777, the Tenth Circuit stated
that when a case is closed and then reopened, not necessarily all
assets come back into the estate. 	At the time, the Court did not
accept this second argument because of the obvious mistake in
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3The only issue technically before the Court is whether the
inadvertent closing of the case prematurely caused an abandonment
under Section 544(c). 	Debtor’s reconsideration motion does not
deal with this issue. 	Rather, the motion is a narrative about
amounts in her credit union account; how she came to value the
house at $210,000 instead of $352,000; how she came to decide to
move from her primary residence into Colonitas; how she ran into
the proposed purchasers accidentally; and how her primary
residence is in foreclosure. 	The Court has studied the Debtor’s
narrative and takes notice of the very difficult circumstances
which confront Debtor. 	The Court certainly sympathizes with
Debtor, but is compelled to apply the law as it exists and to
deny the motion.
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closing this case. 	Now, having reread Woods, the Court disagrees
that the Tenth Circuit made this ruling at all. 	In that portion
of the opinion, the Tenth Circuit was setting out three
approaches that various courts have taken on the issue of a
Court’s power to modify or revoke a technical abandonment. 	173
F.3d at 776-77. 	One of the approaches was the one identified by
Debtor above. 	The Tenth Circuit then stated “[w]e disagree with
each of these approaches.”
The Court entered a written order on the Motion on March 10,
2010. 	(Doc 42). 	Debtor has filed a motion for reconsideration.
The Motion does not claim a manifest error of law, nor does
it allege newly discovered evidence that was unavailable before
the hearing. 	Rather, it asks the Court to reopen the record to
take additional evidence of facts that existed at the time of the
hearing, most or all of which are irrelevant 3 to the issue before
the Court, and to reargue points that the Court has already
considered and found unpersuasive. 	This is not the purpose of a
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Rule 59(e) motion. 	See Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10 th Cir. 2000). 	The Court will enter an Order
denying the Motion for Reconsideration.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	April 1, 2010
Copies to:
Douglas Booth
1223 S St Francis Dr Ste C
Santa Fe, NM 87505-4053
Mirtha E. Davalos
3038 Governor Lindsey Rd.
Santa Fe, NM 87505
Yvette Gonzales
Trustee
PO Box 1037
Placitas, NM 87043-1037
U.S. Trustee
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Donald A Walcott
PO Box 9570
Santa Fe, NM 87504-9570
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