Vivian Ann King

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: 	:
: 	Case No. 05-51441
VIVIAN ANN KING, 	: 	Chapter 7
: 	Judge Hoffman
Debtor. 	:
ORDER DENYING UNITED STATES TRUSTEE’S
MOTION FOR RECONSIDERATION
PURSUANT TO FED. R. CIV. P. 59(e)
I. Background
On June 6, 2005, the Court held a hearing (“Hearing”) on the United States Trustee’s
(“Trustee”) motion to dismiss (“Motion to Dismiss”) the Chapter 7 case of pro se debtor Vivian Ann
King (“Debtor”). The Trustee had moved for dismissal under 11 U.S.C. § 707(b) and contended that
granting the Debtor a discharge would be a substantial abuse of the provisions of Chapter 7 of the
Bankruptcy Code. The Court made oral findings of fact and conclusions of law at the Hearing after
the record was closed (“Oral Decision”).
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: July 15, 2005
____________________________________________________________
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1At the Hearing, the Court also overruled the Trustee’s objection (Doc. 37) to the
admissibility of Debtor’s Amended Schedule J (Doc. 23). The Court directed the Debtor to file a
revised Amended Schedule J using the Official Bankruptcy Forms within 30 days of the Hearing.
2See United States Trustee’s Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e)
(Doc. 40) (“Motion for Reconsideration”). The Trustee timely filed his Motion for Reconsideration
on June 13, 2005, within 10 days of the Court’s Order. Debtor timely responded to the Trustee’s
Motion for Reconsideration. 	See Debtor[’]s Response to [] and Rejection of the Motion to
Reconsider by the United States Trustee (Doc. 42) (“Response”). The Debtor included a revised
Amended Schedule J prepared on the Official Bankruptcy Form in compliance with the Court’s
Order.
2
In weighing the totality of circumstances and considering the guidelines set forth in In re
Krohn, 886 F.2d 123 (6th Cir. 1989) and Behlke v. Eisen (In re Behlke), 358 F.3d 429 (6th Cir.
2004), the Court found that granting Chapter 7 relief to the Debtor would not be a substantial abuse
of the provisions of Chapter 7. As Judge Sellers noted in In re Goddard, 323 B.R. 231, 235 (Bankr.
S.D. Ohio 2005), 11 U.S.C. § 707(b) establishes a presumption in favor of granting the relief
requested by the Debtor—i.e., a discharge of her debts. 	For the reasons explained in the Oral
Decision, the Court invoked the presumption in favor of the Debtor and denied the Trustee’s Motion
to Dismiss (see Order Denying Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) dated June 8, 2005
(Doc. 38) (“Order”)).1
The Trustee moves the Court to reconsider its Order. 2 Citing authority for the proposition
that motions for reconsideration should be granted “if there has been a change in the law or facts or
there is newly discovery evidence[,]” the Trustee submits that the Court should reconsider its Oral
Decision and Order because “[the] facts relied on by the Court in the Order were inaccurate.”
Motion for Reconsideration at 1 (citing Hale v. U.S. Trustee (In re Basham), 208 B.R. 926, 934
(B.A.P. 9th Cir. 1997), aff’d, 152 F.3d 924 (9th Cir. 1998) (other citation omitted)).
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A motion under Rule 59(e) does not present an opportunity to re-argue the same facts, law,
or evidence and should not be used to present arguments that could, and should, have been raised
during the litigation. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998). Because the Trustee simply seeks to relitigate the issues considered at the Hearing,
the Motion for Reconsideration must be denied.
II. Legal Analysis
A. 	Standard Governing Motions for Reconsideration
“[M]otions for reconsideration are not recognized by the Federal Rules of Civil Procedure
or Bankruptcy Procedure.” Dimeff v. Good (In re Good), 281 B.R. 689, 699 (B.A.P. 10th Cir. 2002).
Although “[w]hen a party files a motion to reconsider a final order or judgment within ten days of
entry, [the court] will generally consider the motion to be brought pursuant to [Fed. R. Civ. P.] []
59(e).” Inge v. Rock Fin. Corp., 281 F.3d 613, 617 (6th Cir. 2002). See also Cockrel v. Shelby
County Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001) (“Motions for reconsideration filed within
ten days of the district court’s final judgment, as this one was, are generally treated as a motion to
alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e).”). Fed. R. Bankr. P. 9023 makes Fed.
R. Civ. P. 59 applicable to bankruptcy cases. See Hogan v. Dicicco (In re Hogan), 79 Fed. Appx.
846, 848 (6th Cir. 2003) (unpublished).
The Motion for Reconsideration is entrusted to the Court’s discretion as “[t]he grant or denial
of a Rule 59(e) motion is within the informed discretion of the [trial] court, reversible only for
abuse.” Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788 (6th Cir. 2005) (citation omitted).
“[T]he bankruptcy court has broad discretion in determining whether to grant a motion to alter or
amend judgment. . . . A motion made pursuant to Rule 59 affords relief only in extraordinary
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circumstances.” Crystalin, L.L.C. v. Selma Props., Inc. (In re Crystalin, L.L.C.), 293 B.R. 455, 465
(B.A.P. 8th Cir. 2003).
“Motions to alter or amend judgment may be granted if there is a clear error of law, newly
discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. To
constitute ‘newly discovered evidence,’ the evidence must have been previously unavailable.”
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1998) (citations omitted). “As
a general principle, motions for reconsideration are granted if the moving party demonstrates: (1)
a clear error of law; (2) newly discovered evidence that was not previously available to the parties;
or (3) an intervening change in controlling law.” Owner-Operator Indep. Drivers Ass'n, Inc. v.
Arctic Exp., Inc., 288 F. Supp. 2d 895, 900 (S.D. Ohio 2003) (citing GenCorp, 178 F.3d at 834).
“Motions for reconsideration do not allow the losing party to ‘repeat arguments previously
considered and rejected, or to raise new legal theories that should have been raised earlier.’” Id.
(citation omitted). See also Int’l Union United v. Bunting Bearings Corp. (In re Bunting Bearings
Corp.), 321 B.R. 420, 423 (Bankr. N.D. Ohio 2004) (“A motion under Rule 59(e) is not an
opportunity to re-argue a case. 	Rule 59(e) motions are aimed at re consideration, not initial
consideration. Thus, parties should not use them to raise arguments which could, and should, have
been made before judgment issued. 	Motions under Rule 59(e) must either clearly establish a
manifest error of law or must present newly discovered evidence.”) (quoting Engler, 146 F.3d at
374).
“Arguments and evidence which could have been presented earlier in the proceedings cannot
be presented in a Rule 59(e) motion.” In re Hupton, 287 B.R. 438, 445 (Bankr. N.D. Iowa 2002)
(citing Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1057 (8th Cir. 2002)). “The function of
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a motion to alter or amend a judgment is not to serve as a vehicle to relitigate old matters or present
the case under a new legal theory . . . [or] to give the moving party another ‘bite at the apple’ by
permitting the arguing of issues and procedures that could and should have been raised prior to
judgment.” Mathis v. U.S. (In re Mathis), 312 B.R. 912, 914 (Bankr. S.D. Fla. 2004) (alteration in
original) (quoting Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000)). See also Mantle
Ranches, Inc. v. U.S. Park Serv., 950 F.Supp. 299, 300 (D. Colo. 1997) (“[A] motion for
reconsideration is not a license for a losing party’s attorney to get a second bite at the apple. . . .”)
(citations and internal quotation marks omitted).
B. 	The Trustee’s Reconsideration Request
Based upon the Trustee’s post-Hearing review of Hearing exhibits offered by the Debtor and
his questions about the veracity of Debtor’s testimony concerning her obligation to pay student loans
on behalf of her children, the Trustee urges the Court to revisit and ultimately reverse its Order. In
this case, no error or change in the law has been alleged, leaving “newly discovered evidence” and
“manifest injustice” as the only other grounds recognized by the Sixth Circuit for granting
reconsideration. As discussed below, the grounds asserted in support of the Trustee’s Motion for
Reconsideration do not, as a matter of law, establish a basis for granting the relief requested. At the
pretrial conference held on April 6, 2005, the Court set a May 2, 2005 deadline for the Debtor to
amend her Schedules I and J, which she failed to meet. See Proceeding Memo dated April 29, 2005.
However, on May 4, 2005, more than one month before the Hearing, Debtor submitted and filed her
Hearing exhibits (including an Amended Schedule J) in compliance with the deadline set forth in
the Court’s pretrial order. See Pretrial Scheduling Order Following Pretrial Conference (Doc. 21)
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While Debtor did not technically comply with the Court’s request to file amended schedules,
her timely submission of Hearing exhibits containing essentially the same information called for by
the schedules substantiated her expenses. See Celestino v. Montauk Club, 2002 WL 484685, at *23
(E.D.N.Y. 2002) (“[E]ven if [plaintiff] is not in technical compliance with the local rules, her pro
se submission, taken as a whole and viewed in the light most favorable to her as the party opposing
summary judgment, is sufficient to raise material issues of fact that require a trial.”).
6
(setting a deadline of four business days before the commencement of the Hearing for submission
of exhibits). 3
Together, the Debtor’s Amended Schedule J and Hearing exhibits documented additional
expenses not included in the original Schedule J she filed with her bankruptcy petition. See Docs.
23-34. 	While the Amended Schedule J did not include a line item for student loan payment
obligations, one of her Hearing exhibits (Doc. 33) (“Student Loan Exhibit”) showed that Debtor is
the sole obligor on various “Parent Plus” student loans, and that her children are not co-obligors on
these loans. Debtor submitted the following summary of the outstanding balances she owes on the
student loans:
Student Loan Provider 	Principal Balance
Sallie Mae (“Sallie Mae”) 	$32,673.93
Direct Loans (“Direct Loans”) 	$51,347.00
See Student Loan Exhibit at 2.
As previously noted, at the Hearing the Court overruled the Trustee’s objection to the
admissibility of Debtor’s Amended Schedule J (Doc. 23). 	The Trustee did not object to the
admission of the Debtor’s other Hearing exhibits, including the Student Loan Exhibit; thus, all of
Debtor’s exhibits were admitted at the Hearing. In determining whether to dismiss the Debtor’s
petition under § 707(b), the Court inquired about the Debtor’s “ability to repay h[er] debts out of
future earnings.” 	Behlke, 358 F.3d at 434 (citation omitted). 	The Court specifically asked the
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Debtor to provide the total amount she is obligated to pay on all the student loans on a monthly
basis. After a brief recess, Debtor testified that she is obligated to pay approximately $2,500 per
month on all the student loans, but has only been able to pay approximately $1,400 per month.
On cross-examination, the Trustee failed to adduce testimony or offer other evidence to rebut
Debtor’s testimony concerning the total amount of her monthly student loan obligations. 	The
Trustee insinuated that Debtor was not obligated to pay the student loans at present, because her
children had not yet finished their schooling. And the Trustee asked the Debtor why she had not
consolidated her Direct Loans and stretched out the payment plan so as to decrease the amount she
was obligated to pay on a monthly basis. 	The Debtor responded that she did not want to defer
payment on the student loans given her age and expected substantial reduction in disposable income
when she retires within two years. In the end, the Trustee did not elicit sufficient evidence to refute
the Debtor’s testimony that she, alone, is obligated on all the student loans to make approximately
$2,500 per month in payments.
After denial of his Motion to Dismiss, the Trustee admitted that “[f]ollowing the trial, the
[Trustee] again reviewed the student loan exhibits entered by the Debtor.” 	Motion for
Reconsideration at 2. 	Based on this more in-depth, post-Hearing review of the Student Loan
Exhibit, the Trustee asks the Court to reconsider its Order. The Trustee asserts that, contrary to
Debtor’s testimony, she is not currently obligated to make payments on the Direct Loan portion of
the student loans because they “have a forbearance date of July 21, 2005.” 	Motion for
Reconsideration at 2. Based on the Student Loan Exhibit, the Trustee also asserts that the Debtor
is not obligated to make payments on the Direct Loans because “forbearance continues until six
months after graduation[,] [of the Debtor’s children from the schools they are attending].” Id.
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4Importantly, the Trustee also did not request a recess or continuance to review the Student
Loan Exhibit in detail following Debtor’s testimony. See Javetz v. Bd. of Control, Grand Valley St.
Univ., 903 F.Supp. 1181, 1192 (W.D. Mich 1995) (holding that opinions of plaintiff’s expert were
not “previously unavailable” so as to justify their late submission in Rule 59(e) motion, in part,
because of plaintiff’s failure to move for an extension of the discovery deadline). Nor does it appear
that the Trustee deposed the Debtor prior to the Hearing.
8
Based on these factual assertions drawn from the post-Hearing review of the Student Loan
Exhibit, the Trustee contends that Debtor’s testimony that she has monthly student loan obligations
totaling $2,500 was incorrect. The Trustee surmises that Debtor incorrectly calculated this $2,500
per month figure by adding the accrued interest amount listed on the Direct Loans paperwork to the
current $400 monthly payment listed on the Sallie Mae documentation. See id. at 3 (citing Student
Loan Exhibit). 	The problem with the Trustee’s argument is that it is based on an “attempt[] to
supplement the record with previously available evidence.” Tolbert v. Potter, 2005 WL 1533112,
at *1 (E.D. Mich. 2005). The Student Loan Exhibit was readily available up to a month before the
Hearing and the Debtor’s testimony concerning the student loans was offered at the Hearing. The
Trustee’s bid for reconsideration of the Order fails because the evidence in question—the Student
Loan Exhibit and Debtor’s testimony—is not “newly discovered;” it was available prior to or at the
Hearing.4
“[A] party that fails to introduce facts in . . . opposition cannot introduce them later in a
motion to amend by claiming that they constitute ‘newly discovered evidence’ unless they were
previously unavailable.” 	Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)
(rejecting Rule 59(e) motion that “sought to introduce facts that were available earlier in the
proceedings.”) (citing GenCorp, 178 F.3d at 834). 	“To obtain reconsideration, [parties] must
establish that newly proffered evidence was discovered after the hearing and that they ‘could not
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with reasonable diligence have discovered and produced such evidence at the hearing.’” Madden
v. Deloitte & Touche, LLP, 118 Fed. Appx. 150, 154, (9th Cir. 2004) (unpublished) (quoting
Frederick S. Wyle Prof. Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir.1985)). “The motion for
reconsideration is not an opportunity for a party to correct its own procedural failures or introduce
evidence that should have been brought to the attention of the court prior to judgment.” Johnny
Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999). Thus, the Court
concludes that the evidence upon which the Trustee’s reconsideration request is based is not “newly
discovered” and does not warrant the Court’s reconsideration of its Oral Decision and Order.
Nor is reconsideration required to prevent manifest injustice. The Trustee bases the Motion
for Reconsideration on a reexamination of the Student Loan Exhibit that occurred after the Hearing.
The Trustee could have examined the Student Loan Exhibit prior to or during the Hearing and cross-
examined the Debtor concerning its contents. See Ciralsky v. C.I.A., 355 F.3d 661, 673 (D.C. Cir.
2004) (affirming lower court holding that “[m]anifest injustice does not exist where, as here, a party
could have easily avoided the outcome, but instead elected not to act until after a final order had
been entered.”). See also Bunting Bearings Corp., 321 B.R. at 423 (“As applied to Rule 59(e), no
general definition of manifest injustice has ever been developed; courts instead look at the matter
on a case-by-case basis. What is clear from case law, and from a natural reading of the term itself,
is that a showing of manifest injustice requires that there exist a fundamental flaw in the court's
decision that without correction would lead to a result that is both inequitable and not in line with
applicable policy.”).
Because the Trustee offers grounds in support of his Motion for Reconsideration that could
have been raised at the Hearing, and because “[reconsideration] motions cannot be used to . . . raise
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arguments which could have been offered or raised prior to entry of judgment[,]” Innovative Home
Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998), the
Court declines to reconsider its Oral Decision and Order.
III. Conclusion
The Trustee’s reconsideration bid amounts to an after-the-fact attempt to relitigate the issues
presented at the Hearing, based on evidence that was available both before and during the Hearing.
The Trustee is simply not entitled to another “bite at the apple.” Mathis, 312 B.R. at 914. For these
reasons, the Motion for Reconsideration is DENIED.
IT IS SO ORDERED.
Copies to:
Vivian Ann King, Debtor, 88 Mockingbird Ct., Columbus, OH 43147
Frederick L Ransier, Chapter 7 Trustee, 52 East Gay Street, PO Box 1008,
Columbus, OH 43216
Kristopher E Aungst, Office of the U.S. Trustee, 170 N. High Street, Suite 200,
Columbus, Ohio 43215
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