Brenda C. Price

1The Debtor has also filed a separate motion requesting that the Stipulated Order be set
aside. See Docket No. 313.
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: Brenda C. Price, a/k/a Bren Price; 	No. 11-05-10321 MS
Brenda Price; d/b/a Touchstone Residential
Gallery; Touchstone Inn, Spa & Gallery; Bren
Price Studio; and Bren Price Enterprises,
Debtor.
ORDER DENYING MOTION TO RECONSIDER
THIS MATTER is before the Court on the Motion to Reconsider and Set Aside the
Court’s Finding Regarding Authority of Mr. Hughson, Esq. To Stipulate with J. P. Morgan Chase
Regarding Automatic Stay as Well as the Court’s Order Granting Morion for Relief from Stay
Filed by J.P. Morgan Chase (“Motion”) filed on October 17, 2008 by the Debtor, Brenda Price,
by and through her attorney, Thomas L. Dunigan. (Docket No. 314). The Debtor asks the Court
to reconsider its ruling in the following orders: 	1) Order Determining that Debtor’s Former
Counsel had Authority to Enter into Stipulation with JPMorgan Chase Regarding Automatic Stay
(“Authority Order”) entered September 17, 2008; and 2) Stipulated Order on Creditor’s Motion
for Relief from Stay (“Stipulated Order”) entered September 18, 2008.1 Because the Motion was
filed more than 10 days but within one year of the entry of the Authority Order and the Stipulated
Order, the Court will consider the Motion under the standards of Rule 60(b), Fed.R.Civ.P. made
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2 “A motion under Rule 60(b) must be made within a reasonable time -- and for reasons
(1), (2), and (3) no more than a year after the ent4ry of the judgment or order or the date of the
proceeding.” Rule 60(b), Fed.R.Civ.P.
2
applicable to bankruptcy proceedings by Rule 9024, Fed.R.Bankr.P. 2
Rule 60(b) provides in relevant part:
On motion and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule
59(b); [or] (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party . . .
Relief under Rule 60(b) is an extraordinary remedy and may be granted only in exceptional
circumstances. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.1996)(quoting
Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10 th Cir. 1990)). A
Rule 60(b) motion is not an appropriate vehicle to re-argue the merits of the underlying judgment,
to advance new arguments which could have been presented in the original motion papers, or as a
substitute for appeal. See id. at 576 and 577.
The Debtor does not cite to Rule 60(b), nor identify which provision of that rule forms the
basis of her request. Rather, Debtor alleges that her former counsel had no specific authority to
enter into a stipulation with JP Morgan Chase on her behalf and that no factual evidence was
presented to the Court as to her former counsel’s authority to enter into the stipulation that
resulted in the entry of the Stipulated Order. 	Upon a proper showing, lack of settlement authority
can serve as grounds to set aside a judgment under Rule 60(b), Fed.R.Civ.P. See Thomas v.
Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966); Smith v. Widman Trucking &
Excavating, Inc., 627 F.2d 792, 796 (7th Cir. 1980).
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Based on the record of this proceeding, the history leading up to the entry of the Authority
Order and the Stipulated Order is as follows:
JP Morgan Chase filed a Motion for Relief from Stay (“Stay Motion”) on June 9, 2008.
Ms. Price, by her counsel, Charles Hughson, filed an objection to the Stay Motion on June 20,
2008. See Docket No. 285. 	At the preliminary hearing on the Stay Motion, the Court set a final
hearing on August 26, 2008. On August 26, 2008, Mr. Charles Hughson, Debtor’s then counsel,
filed a withdrawal and substitution of counsel by which Mr. Dunigan became Ms. Price’s counsel
of record. See Docket No. 297. Mr. Dunigan appeared at the final hearing on the Stay Motion and
asserted that Ms. Price’s former counsel lacked authority to enter into a stipulation with JP
Morgan Chase regarding the automatic stay. 	The Court set a final hearing on September 17,
2008 to consider that issue.
As noted by the Court in the Authority Order, neither the Debtor nor her then, newly-
retained counsel, Mr. Dunigan, appeared at the date and time of the final hearing on September
17, 2008 to contest the authority of her former counsel to enter into the stipulation. 	On the date
of the hearing, but after its conclusion, the Debtor filed a trial memorandum which addresses the
same lack of authority arguments raised in the instant Motion. 	The memorandum is directed at
the general scope of authority between an attorney and his or her client, which does not grant the
implied or apparent authority to compromise the client’s cause of action simply by virtue of the
attorney’s employment by the client. See, e.g., Augustus v. John Williams and Associates, 92
N.M. 437, 589 P.2d 1028 (1979).
As part of the instant Motion, Ms. Price submitted an affidavit which states that she first
received notice of Mr. Hughson’s stipulation with America’s Wholesale Lender and JP Morgan
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Chase on August 12, 2008 when she received a letter dated July 28, 2008 that was postmarked on
August 11, 2008. The Stipulated Order between J.P. Morgan Chase and the Debtor reflects that
Mr. Hughson gave telephonic approval of the Stipulated Order on August 19, 2008. 	Nothing in
Ms. Price’s Affidavit contradicts the conclusion that Mr. Hughson had authority to enter into the
stipulation on August 19, 2008. 	The Withdrawal and Substitution of Counsel for Debtor which
authorized the withdrawal of Mr. Hughson and substituted Mr. Dunigan as Debtor’s counsel was
not filed until August 26, 2008. 	As stated by the Tench Circuit Court of Appeals,
The law is settled that an attorney of record may not compromise, settle, or consent to a
final disposition of his client’s case without express authority. However, this general
principle must be considered in connection with the rule that an attorney of record is
presumed to have authority to compromise and settle litigation of his client, and a
judgment entered upon an agreement by the attorney of record will be set aside only upon
affirmative proof by the party seeking to vacate the judgment hat the attorney had no right
to its entry.
Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d at 139 (citations omitted).
Ms. Price has failed to present evidence that her former counsel acted without her consent.
Though she raised the issue at the final hearing on JP Morgan’s Motion for Relief from Stay, held
August 26, 2008, she failed to timely appear at the final hearing on September 17, 2008 to offer
evidence in support of her contention.
WHEREFORE, it is hereby ordered that the Motion is DENIED.
MARK B. McFEELEY
UNITED STATES BANKRUPTCY JUDGE
Date entered on docket: May 13, 2009
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Copies to:
Thomas Lea Dunigan
PO Box 9846
Santa Fe, NM 87504-9846
Sharon Hankla
Attorney for JPMorgan Chase
Castle Meinhold & Stawiarski, LLC
999 18th Street, Suite 2201
Bin 1
Denver, CO 80202
Office of the United States Trustee
PO Box 608
Albuquerque, NM 87103
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