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In re Boyce

June 16, 2009

IN RE: MARGARET M. BOYCE


The opinion of the court was delivered by: Kauffman, J.

MEMORANDUM

Now before the Court are the appeals of Margaret M. Boyce ("Debtor") to three Orders of the United States Bankruptcy Court for the Eastern District of Pennsylvania. Debtor first appeals the Bankruptcy Court's July 19, 2007 Order (the "July 19 Order"), which denied reconsideration of a previous Bankruptcy Court Order that awarded fees (the "Fee Order") to the trustee, Lawrence Lichtenstein ("Trustee"). Debtor also appeals the Bankruptcy Court's August 1, 2007 Order (the "August 1 Order"), which denied her leave to appeal the Fee Order. She further appeals the Bankruptcy Court's August 13, 2007 Order (the "August 13 Order"), which denied reconsideration of the August 1 Order.

I. BACKGROUND

Given the lengthy factual background, the Court will refer only to those facts relevant to the disposition of this appeal.*fn1 On January 4, 2000, Debtor, a Pennsylvania attorney since 1970, filed a pro se voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code in the Bankruptcy Court for the Eastern District of Pennsylvania. As Debtor's Chapter 7 bankruptcy case continued, most of her creditors' claims were either settled or disallowed. Eventually, the only claims that remained were a claim filed by the interim trustee and claims for the administrative expenses filed by the Trustee and Ciardi, Maschmeyer & Karalis, P.C. ("CMK"), the law firm retained by the Trustee.

On March 16, 2007, the Honorable Bruce Fox issued an Order scheduling a status hearing for April 11, 2007. The Order was served on Debtor at her address of record in Lafayette Hill, PA (the "Lafayette Hill address," "wrong address," or "old address") by the Clerk of Court, and a courtesy copy was sent to that address by Judge Fox's Chambers. R. at tab 3.*fn2 At some time before the scheduled status hearing date, Debtor sent an undated request for a continuance directly to Judge Fox's Chambers.*fn3 See Appellant Br. at Ex. B; R. at tab 4, n.1. In addition to her request for a continuance of the hearing, Debtor also explained that she had received the status hearing notice at an address where she no longer received mail and that the forwarding order to her new address had expired. See Appellant Br. at Ex. B. She further requested that "[m]ail should be forwarded" to her at an address in Conshohocken, PA ("Conshohocken address" or "correct address"). Id.

On April 4, 2007, Judge Fox issued an Order (the "April 4 Order") canceling the status hearing and providing that an audit hearing on the Trustee's final report would be scheduled. See R. at tab 10. Judge Fox then sent a courtesy copy of the April 4 Order to the Conshohocken address. R. at tab 8. However, Debtor's address of record, the Lafayette Hill address, remained unchanged, and the Clerk of Court served Debtor at her address of record. R. at tab 5, docket no. 239.

On May 23, 2007, the Trustee filed a "Final Audit Notice" (the "Notice") stating that a hearing on the final audit would be held June 27, 2007. The Notice was served on all creditors and parties in interest, including Debtor at her address of record.*fn4 R. at tab 5, docket no. 243. Debtor did not attend the June 27 hearing, nor did she file any objection to Trustee's proposed commissions and expenses. R. at tab 3. On June 28, 2007, Judge Fox entered a Fee Order granting Trustee's application for compensation. R. at tab 7. The Clerk of Court then served the Fee Order on Debtor at the Lafayette Hill address. Id.

On July 16, 2007, Debtor filed an objection to the Fee Order, claiming that she was unaware of any proceedings before the Bankruptcy Court and that she had not received a copy of the Fee Order until July 12, 2007. R. at tab 7. In his July 19 Order, Judge Fox denied Debtor's objections to the Fee Order as untimely. Id. He found that Debtor's address of record had been last changed to the Lafayette Hill address in 2003 and that no subsequent request to change her address had been made. Because Trustee served notice of the final audit hearing at Debtor's last address of record, and because Judge Fox had sent a courtesy copy of the April 4 Order to her Conshohocken address informing her that the Trustee had submitted his final report and a final audit hearing would be scheduled soon, Debtor knew or should have known that her bankruptcy case was active.

On July 27, 2007, Debtor filed both a Notice of Appeal to this Court, appealing the July 19 Order, R. at tab 1, as well as an addendum to her July 16 objection requesting leave to appeal nunc pro tunc on the grounds that she had "advised the Court that mail should be forwarded" to the Conshohocken address and that Trustee was aware of Debtor's Conshohocken address. R. at tab 8. In his August 1 Order, interpreting Debtor's request for leave to appeal nunc pro tunc as a motion to extend the time for filing a notice of appeal to the Fee Order, Judge Fox denied Debtor's addendum to her original objection. Judge Fox found that Debtor's motions did not establish the requisite showing of excusable neglect necessary for a bankruptcy judge to extend the ten-day deadline for filing a notice of appeal, on the grounds that Debtor failed to properly communicate her correct address to the Clerk of the Court and that a party's failure to receive notice of the entry of an order does not constitute excusable neglect. R. at tab 4.

On August 9, 2007, Debtor filed both an amendment to her Notice of Appeal to this Court to include the August 1 Order, R. at tab 2, and a motion to reconsider the August 1 Order in the Bankruptcy Court. R. at tab 11. In her motion to reconsider, Debtor asserted that in 2004 her typist sent a letter to the Clerk of Bankruptcy Court requesting that the Court's records be amended to reflect an updated address at a post office box in Lafayette Hill, PA ("P.O. Box address"), that the Clerk failed to make the requested change to her address of record, and that because she "did comply with the rules by advising the Clerk," her lack of notice of the hearing and the untimeliness of her appeal of the Fee Order were due to excusable neglect. Id. In his August 13 Order, Judge Fox denied Debtor's motion for reconsideration as untimely, and did not consider whether Debtor's new evidence of the 2004 letter to the Clerk constituted excusable neglect. R. at tab 12. On September 10, 2007, Debtor filed a second amendment to the Notice of Appeal to include all of Judge Fox's Orders.

II. LEGAL STANDARD

The Court has jurisdiction to hear an appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a). On appeal, a district court may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree; or remand with instructions for further proceedings. Fed. R. Bankr. P. 8013. A district court must accept the bankruptcy court's factual determinations unless they are clearly erroneous. In re Morrissey, 717 F.2d 100, 104 (3d Cir. 1983). A factual determination must be accepted unless it is either "completely devoid of minimum evidentiary support" or "bears no rational relationship to the supportive evidentiary data." Hoots v. Pennsylvania, 703 F.2d 722, 725 (3d Cir. 1983). The review of issues of law is plenary. See Jones v. Chemetron Corp., 212 F.3d 199, 204-05 (3d Cir. 2000). Decisions which involve the exercise of discretion are reviewed for abuse of discretion. See In re Myers, 334 B.R. 136, 142 (E.D. Pa. 2005).

A district court's review of a bankruptcy court's denial of motions for reconsideration pursuant to Fed. R. Civ. P. 59(e) and 60(b) are reviewed for abuse of discretion. See McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238 (3d Cir. 2005) (denial of Rule 59(e) motion); Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003) (denial of Rule 60(b) motion). "An abuse of discretion may occur as a result of an errant conclusion of law, an improper application of law to fact, or a clearly erroneous finding of fact." McDowell, 423 F.3d at 238. A decision ...


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