Anthony John Mendez and Dorothy Mae Mendez

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
ANTHONY JOHN MENDEZ and
DOROTHY MAE MENDEZ,
Debtors. 	No. 7-07-11092 SA
MEMORANDUM OPINION ON MOTION TO RECONSIDER
ORDER GRANTING UNITED STATES TRUSTEE’S
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Debtors’ Motion to
Reconsider Order Granting United States Trustee’s (“UST”) Motion
for Summary Judgment (doc 75) and the UST’s Response (doc 77).
Debtors appear through their attorney Dennis Feld. 	The UST
appears through its attorney Ronald Andazola. 	For the reasons
set forth below, the Court finds that the Motion for
Reconsideration should be denied.
DISCUSSION
Neither the Federal Rules of Civil Procedure nor the
Bankruptcy Rules recognize a motion for recon-
sideration. 	Dimeff v. Good (In re Good), 281 B.R. 689,
699 (10th Cir. BAP 2002). 	Although, when filed
[m]otions for “reconsideration” of a judgment should be
treated as motions to alter or amend judgment under
Rule 59(e) F.R.C.P., made applicable to bankruptcy by
Rule 9023 Fed.R.Bankr.P. 	Under those rules, a party
seeking to alter or vacate a judgment has 10 days from
entry of the judgment to file a motion for such relief.
Such motions will only be granted if there has been a
mistake of law or fact or there is newly discovered
evidence not previously available.
In re Bushman, 311 B.R. 91, 95 n.5 (Bankr. D. Utah 2004). 	Relief
may also be available under Rule 59(e) if there has been an
intervening change in the controlling law. 	Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). 	The
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 1 of 7

Page -2-
motion must demonstrate the “reason why the court should
reconsider its prior decision” and “must set forth facts or law
of a strongly convincing nature” to induce the court to reverse
its earlier decision. 	Dale & Selby Superette & Deli v. U.S.
Dept. of Agriculture, 838 F. Supp. 1346, 1347 (D. Minn.
1993)(citation omitted.) 	A party cannot use a Rule 59(e) motion
to cure its own procedural failures or to introduce new evidence
or advance arguments that could and should have been presented
originally to the court. 	Abyar v. Crispin-Reyes, 118 F.3d 10, 16
(1 st Cir. 1997), cert. denied, 522 U.S. 1078 (1998).
Debtors’ Motion does not allege mistake of fact or newly
discovered evidence or an intervening change in the law. 	Rather,
it is based on two claimed mistakes of law. 	The first is that
the Court erred by excluding unauthenticated exhibits attached to
the Debtors’ response to the Motion for Summary Judgment. 	The
second is that the Court should have based its summary judgment
ruling on the entire record of the case rather than just the
UST’s summary judgment motion and attached exhibits.
The first argument is that the exhibits Debtors submitted in
response to the motion for summary judgment were attached to a
pleading signed by the attorney and that this is the equivalent
of or better than an affidavit. 	Debtors cite no authority for
this proposition. 	And, the Court disagrees. 	First, this theory
contradicts the plain language of Bankruptcy Rule 7056(e)(2):
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 2 of 7

Page -3-
(2) Opposing Party's Obligation to Respond. 	When a
motion for summary judgment is properly made and
supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its
response must--by affidavits or as otherwise provided
in this rule--set out specific facts showing a genuine
issue for trial. 	If the opposing party does not so
respond, summary judgment should, if appropriate, be
entered against that party.
The rule requires a response, by affidavit “or as otherwise
provided” by the rule. 	Merely signing a pleading as the attorney
is not an alternative way provided by the rule.
Secondly, there are cases specifically to the contrary.
See, e.g. 	Exeter Bankcorporation, Inc. v. Kemper Securities
Group, Inc., 58 F.3d 1306, 1312 n.5 (8 th Cir. 1995)(Statements of
counsel are not evidence and do not create issues of fact.);
British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9 th Cir.
1978), cert. denied, 440 U.S. 981 (1979)(“The only statements we
can find in the record that the crash was caused by a defective
fin attachment fitting were made by counsel for BOAC. 	But legal
memoranda and oral argument are not evidence, and they cannot by
themselves create a factual dispute sufficient to defeat a
summary judgment motion where no dispute otherwise
exists.”)(Citation omitted.).
Finally, the general rule is that unauthenticated documents
cannot be considered in a motion for summary judgment.
It is well settled that only admissible evidence may be
considered by the trial court in ruling on a motion for
summary judgment. 	Fed.R.Civ.P. 56(e). 	Hollingsworth
Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 3 of 7

Page -4-
n. 9 (9th Cir.1980)(citing United States v. Dibble, 429
F.2d 598, 601-02 (9th Cir.1970). ... Federal Rule of
Evidence 901(a) requires “authentication or
identification as a condition precedent to
admissibility.” 	Thus, before evidence may be admitted,
a foundation must be laid “by evidence sufficient to
support a finding that the matter in question is what
its proponent claims.” 	Fed.R.Evid. 901(a). 	We have
repeatedly held that “documents which have not had a
proper foundation laid to authenticate them cannot
support a motion for summary judgment.” 	Canada v.
Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th
Cir.1987).
Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181-82
(9 th Cir. 1988). 	Therefore, the first claimed legal error does
not warrant reconsideration.
The second claimed error is that the Court should have based
its summary judgment ruling on the entire record of the case
rather than just the UST’s summary judgment motion and attached
exhibits. 	Debtors argument is as follows: after the UST filed
its Motion to Dismiss under § 707(b) the Debtors filed a response
that alleged certain facts; the UST did not file a reply, so the
facts alleged in the response should be deemed admitted; if the
Court had considered those facts as part of the entire record it
would have known that there was a genuine issue of material fact
such that the UST’s motion for summary judgment on the EAJA claim
should not have been granted.
The Court has several responses. 	First, the Court has no
duty to search the entire record to establish that it is bereft
of a genuine issue of material fact. 	Street v. J.C. Bradford &
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 4 of 7

Page -5-
Co., 886 F.2d 1472, 1479-80 (6 th Cir. 1989)(citing Frito-Lay,
Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)); Downes
v. Beach, 587 F.2d 469, 472 (10 th Cir. 1978):
While the trial court has discretion to conduct an
assiduous review of the record in an effort to weigh
the propriety of granting a summary judgment motion, it
is not required to consider what the parties fail to
point out.
We simply decline to place upon the court the
litigant's burden of bringing to the court's attention
the existence of a factual dispute. 	The party who has
the most to lose if no genuine factual controversy is
found is in the best position to demonstrate the
existence of a dispute. 	If the party opposing the
motion decides to forego submitting proof that a
relevant factual dispute exists, he does so at his
peril.
The method by which the relevant facts are called
to the court's attention is not rigid. 	It may be done
by affidavit, reference to particular sworn testimony
in a trial transcript, or by similar procedures.
Whatever procedure is employed, it is the responding
party's burden to ensure that the factual dispute is
portrayed with particularity, without relying on the
trial court's memory of prior proceedings and without
depending on the trial court to conduct its own search
of the record.
(Footnote omitted.) 	Furthermore, NM LBR 7056-1 squarely puts the
burden on the objecting party to identify disputed facts with
specificity and “refer with particularity to those portions of
the record upon which the opposing party relies.”
Second, Debtors argument is, essentially, that they were
relying on their response to establish a fact issue. 	This is
specifically prohibited by Rule 56(e)(2):
When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 5 of 7

1“Rule 8(b)(6), formerly Rule 8(d), makes it clear that an
admission by failure to deny only applies to averments in those
pleadings to which a responsive pleading is required....
[A]verments contained in a pleading to which no response is
required or permitted are deemed denied and at issue
automatically without the necessity of a denial.” 	5 Wright &
Miller, Fed. Prac. & Proc. Civ. § 1279 (3d ed.). 	See also, e.g.,
Xiong v. State of Wisconsin Dept. of Employee Trust Fund, 2007 WL
5658908 at *1 (W.D. Wis. 2007)(“[I]t is not necessary for
plaintiff to respond to defendant’s answer. 	Indeed, Fed.R.Civ.P.
(continued...)
Page -6-
response must--by affidavits or as otherwise provided
in this rule--set out specific facts showing a genuine
issue for trial. If the opposing party does not so
respond, summary judgment should, if appropriate, be
entered against that party.
Finally, Debtors have provided no legal support for the
proposition that facts alleged in a response to a motion will be
deemed admitted unless the movant files a reply. 	The Court has
also found no support for this proposition.
A motion to dismiss a case under Section 707(b) is a
contested matter governed by Bankruptcy Rule 9014. 	See
Bankruptcy Rule 1017(f)(1); In re Khachikyan, 335 B.R. 121, 125
(9 th Cir. BAP 2005). 	Under Bankruptcy Rule 9014(a), no response
to the motion commencing the contested matter is required unless
the Court so orders. 	Bankruptcy Rule 9014(c) contains a list of
other rules that apply to contested matters. 	Notably, Bankruptcy
Rule 7008 does not apply. 	Bankruptcy Rule 7008 states that
Federal Rule of Civil Procedure 8 applies in adversary
proceedings. 	Federal Rule of Civil Procedure 8(b)(6) deals with
the effect of failing to deny an allegation 1. 	But, that rule is
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 6 of 7

1(...continued)
7(a) forbids a plaintiff to submit a reply to an answer unless
the court directs a reply to be filed. ... According to
Fed.R.Civ.P. 8(d), averments in pleadings to which a response is
not allowed are assumed to be denied.”
Page -7-
not applicable in this case. 	And, there is no other rule that
requires the movant to file a reply to a response to a motion.
Therefore, the Court will not deem the facts alleged in Debtors’
response to the Section 707(b) motion to be deemed admitted.
CONCLUSION
The Court finds that it committed no error of law in
granting the UST’s Motion for Summary Judgment. 	The Motion for
Reconsideration is not well taken and will be denied.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	March 22, 2010
Copies to:
Dennis M Feld
PO Box 45116
Rio Rancho, NM 87174-5116
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Case 07-11092-s7 Doc 84 Filed 03/22/10 Entered 03/22/10 16:48:34 Page 7 of 7