MEMORANDUM in Support re [8] MOTION for Reconsideration re [6] Memorandum & ORDER, [7] Order Dismissing Case with certificate of service filed by Danh T. Nguyen. (Filo, Jennifer)
No tags have been applied so far. Sign in to add some.
There was a problem locating the requested document.
Page 1 Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 21 of
of 43
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
In re:
Danh T. Nguyen
A/k/a Lisa Le
Docket No.: 03-12887-WCH
Chapter 7
Debtor
Danh. T. Nguyen,
Appellant
v.
BANKRUPTCY APPEAL
Joseph Braunstein as Chapter 7 Trustee
Civil Action No. 04-12107-NG
Appellee
MEMORANDUM IN SUPPORT OF
APPELLANT’S MOTION FOR REHEARING
In support of her motion for rehearing pursuant to FRBP 8015, appellant Danh T.
Nguyen states as follows:
I.
Standard for decision
There appears to be only a few decisions setting forth the standard for deciding whether
to grant a motion for rehearing under FRBP 8015. The Bankruptcy Appellate Panel for the
Ninth Circuit said this: Rule 8015 does not set forth standards for granting rehearing, but as that rule was
derived from FRAP 40, it is appropriate to look there for guidance. Olson v. United
States, 162 B.R. 831, 834 (D.Neb. 1993). Under FRAP 40, a party seeking rehearing
must "state with particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended and must argue in support of the petition."
Petitions for rehearing are designed to ensure that the appellate court properly
considered all relevant information in rendering its decision. Armster v. U.S. District
Court, C.D. Cal., 806 F.2d 1347, 1356 (9th Cir.1986). A petition for rehearing is not a
means by which to reargue a party's case. Anderson v. Knox, 300 F.2d 296, 297 (9th
Cir.1962).
In re Hessco Industries, 295 B.R. 372 (9th Cir. BAP, 2003). See also The Shawnee State Bank,
v. First National Bank of Olathe (In re Winders), 202 B.R. 512 (D.Kan. 1996). In the present
case, Nguyen believes that the Court has misunderstood the law applicable to this case, and that
rehearing is warranted accordingly.
2Page 2 Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 32 of
of 43
ARGUMENT
This court stated on page three of the decision that the appellant “asks this Court to
ignore controlling First Circuit jurisprudence…” This is incorrect because there is no
“controlling” First Circuit jurisprudence, in any sense of the word. The First Circuit Court of
Appeals has not published a decision on this issue, at least as of this date1. Decisions of the
Bankruptcy Appellate Panel and/or of another judge of the District Court are not “controlling
authority”. JPMorgan Chase Bank v. Cook, 322 F.Supp. 2d 353 (S.D.N.Y. 2004); In re Virden, 279 B.R. 401 (Bkrtcy.D.Mass. 2002), citing In re Carrozzella & Richardson, 255 B.R. 267
(Bkrtcy.D.Conn. 2000); In re Barakat, 173 B.R. 672 (Bkrtcy.C.D. Cal. 1994). However
persuasive such decisions may be, they do nothing more than establish the law of the case.
The court in Carrozella thoroughly explains the reasoning behind this, and the reasoning
will not be repeated. It is sufficient to say that the Bankruptcy Appellate Panel is composed of
bankruptcy judges from districts within the circuit, but who do not regularly sit in the district
whence the appeal originated. Bankruptcy judges are appointed pursuant to Article I of the
Constitution; they are not Article III judges, as is this Court, and they are unequivocally not
judges of the First Circuit Court of Appeals, as this Court seems to believe, see Decision at page
4 (“However, the First Circuit has held …”). It is only decisions of the First Circuit Court of
Appeals which establish “controlling authority”.
In the absence of such authority, therefore, it is incumbent on this Court to conduct its
own analysis of the law or, at a minimum, explain why it finds the decisions of the Bankruptcy
Appellate Panel to be persuasive, if only for purposes of further appeal to the First Circuit.
While the appellant does not desire to reargue the case, she feels confident that an impartial
analysis of the cases cited will disclose their defects. The BAP in In re Marrama, 313 B.R. 525
(1st Cir. BAP 2004) did not conduct any substantive statutory analysis aside from its conclusion
that 11 USC §105 does not grant bankruptcy courts authority to ignore the plain language of the
statute and the legislative history, and deny conversion; at the same time, however, there is no
explanation of where such authority does come from. By contrast, the BAP in In re Kuntz, 233
B.R. 580 (1st Cir. BAP 1999), explicitly followed cases which hold that 11 USC §105 does
provide such authority. The BAP decision in In re Cabral, 285 B.R. 563 (1st Cir. BAP 2002), is
distinguishable because in that case, the bankruptcy court had already converted the case to
Chapter 13 and was considering whether cause existed to convert the case back to Chapter 7.
1
The BAP decision in In re Marrama, 313 B.R. 525 (1st Cir. BAP 2004) was appealed to the First Circuit, and oral
argument was held in March. No decision has yet been handed down.
3Page 3 Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 43 of
of 43
The BAP’s discussion of whether the right to convert is absolute is mere dicta since the issue
presented was whether the bankruptcy court erred in finding cause to reconvert.
As this discussion makes clear, the decisions of the Bankruptcy Appellate Panel for the
First Circuit and inconsistent and contradictory; Marrama and Cabral clearly conflict in their
approach to 11 USC §105. Nonetheless, it is well within this Court’s prerogative to adopt the
reasoning of the BAP, however flawed the appellant may believe it to be. Given that the Court
appears to have proceeded from an erroneous belief that the BAP decisions are “controlling
authority”, the appellant requests that the Court grant a rehearing or reconsideration of this
appeal, and that the Court issue an amended memorandum of decision which sets forth its
analysis of the applicable law. The appellant is confident that upon doing so, it will find that the
BAP decisions are incorrect and that the bankruptcy court in the present case should be reversed.
WHEREFORE the appellant requests that the Court grant a rehearing and that the
bankruptcy court be reversed.
Dated:
October 9, 2005
Respectfully submitted,
Danh T. Nguyen
By her attorney,
/s/
David G. Baker
David G. Baker, Esq. (BBO# 634889)
105 Union Wharf
Boston, MA 02109
(617) 367-2460
CERTIFICATE OF SERVICE
The undersigned hereby states upon information and belief that the within Motion For
Rehearing and Memorandum of Law in support was served upon the appellee by the Court’s
CM/ECF system
October 9, 2005
/s/
David G. Baker
David G. Baker, Esq.
4
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 21 of
of 43
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
In re:
Danh T. Nguyen
A/k/a Lisa Le
Docket No.: 03-12887-WCH
Chapter 7
Debtor
Danh. T. Nguyen,
Appellant
v.
BANKRUPTCY APPEAL
Joseph Braunstein as Chapter 7 Trustee
Civil Action No. 04-12107-NG
Appellee
MEMORANDUM IN SUPPORT OF
APPELLANT’S MOTION FOR REHEARING
In support of her motion for rehearing pursuant to FRBP 8015, appellant Danh T.
Nguyen states as follows:
I.
Standard for decision
There appears to be only a few decisions setting forth the standard for deciding whether
to grant a motion for rehearing under FRBP 8015. The Bankruptcy Appellate Panel for the
Ninth Circuit said this:
Rule 8015 does not set forth standards for granting rehearing, but as that rule was
derived from FRAP 40, it is appropriate to look there for guidance. Olson v. United
States, 162 B.R. 831, 834 (D.Neb. 1993). Under FRAP 40, a party seeking rehearing
must "state with particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended and must argue in support of the petition."
Petitions for rehearing are designed to ensure that the appellate court properly
considered all relevant information in rendering its decision. Armster v. U.S. District
Court, C.D. Cal., 806 F.2d 1347, 1356 (9th Cir.1986). A petition for rehearing is not a
means by which to reargue a party's case. Anderson v. Knox, 300 F.2d 296, 297 (9th
Cir.1962).
In re Hessco Industries, 295 B.R. 372 (9th Cir. BAP, 2003). See also The Shawnee State Bank,
v. First National Bank of Olathe (In re Winders), 202 B.R. 512 (D.Kan. 1996). In the present
case, Nguyen believes that the Court has misunderstood the law applicable to this case, and that
rehearing is warranted accordingly.
2
PDF Page 3
Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 32 of
of 43
ARGUMENT
This court stated on page three of the decision that the appellant “asks this Court to
ignore controlling First Circuit jurisprudence…” This is incorrect because there is no
“controlling” First Circuit jurisprudence, in any sense of the word. The First Circuit Court of
Appeals has not published a decision on this issue, at least as of this date1. Decisions of the
Bankruptcy Appellate Panel and/or of another judge of the District Court are not “controlling
authority”. JPMorgan Chase Bank v. Cook, 322 F.Supp. 2d 353 (S.D.N.Y. 2004); In re Virden,
279 B.R. 401 (Bkrtcy.D.Mass. 2002), citing In re Carrozzella & Richardson, 255 B.R. 267
(Bkrtcy.D.Conn. 2000); In re Barakat, 173 B.R. 672 (Bkrtcy.C.D. Cal. 1994). However
persuasive such decisions may be, they do nothing more than establish the law of the case.
The court in Carrozella thoroughly explains the reasoning behind this, and the reasoning
will not be repeated. It is sufficient to say that the Bankruptcy Appellate Panel is composed of
bankruptcy judges from districts within the circuit, but who do not regularly sit in the district
whence the appeal originated. Bankruptcy judges are appointed pursuant to Article I of the
Constitution; they are not Article III judges, as is this Court, and they are unequivocally not
judges of the First Circuit Court of Appeals, as this Court seems to believe, see Decision at page
4 (“However, the First Circuit has held …”). It is only decisions of the First Circuit Court of
Appeals which establish “controlling authority”.
In the absence of such authority, therefore, it is incumbent on this Court to conduct its
own analysis of the law or, at a minimum, explain why it finds the decisions of the Bankruptcy
Appellate Panel to be persuasive, if only for purposes of further appeal to the First Circuit.
While the appellant does not desire to reargue the case, she feels confident that an impartial
analysis of the cases cited will disclose their defects. The BAP in In re Marrama, 313 B.R. 525
(1st Cir. BAP 2004) did not conduct any substantive statutory analysis aside from its conclusion
that 11 USC §105 does not grant bankruptcy courts authority to ignore the plain language of the
statute and the legislative history, and deny conversion; at the same time, however, there is no
explanation of where such authority does come from. By contrast, the BAP in In re Kuntz, 233
B.R. 580 (1st Cir. BAP 1999), explicitly followed cases which hold that 11 USC §105 does
provide such authority. The BAP decision in In re Cabral, 285 B.R. 563 (1st Cir. BAP 2002), is
distinguishable because in that case, the bankruptcy court had already converted the case to
Chapter 13 and was considering whether cause existed to convert the case back to Chapter 7.
1
The BAP decision in In re Marrama, 313 B.R. 525 (1st Cir. BAP 2004) was appealed to the First Circuit, and oral
argument was held in March. No decision has yet been handed down.
3
PDF Page 4
Case
Case 1:04-cv-12107-NG
1:04-cv-12107-NG
Document
Document 98
Filed
Filed 10/10/2005
10/10/2005
Page
Page 43 of
of 43
The BAP’s discussion of whether the right to convert is absolute is mere dicta since the issue
presented was whether the bankruptcy court erred in finding cause to reconvert.
As this discussion makes clear, the decisions of the Bankruptcy Appellate Panel for the
First Circuit and inconsistent and contradictory; Marrama and Cabral clearly conflict in their
approach to 11 USC §105. Nonetheless, it is well within this Court’s prerogative to adopt the
reasoning of the BAP, however flawed the appellant may believe it to be. Given that the Court
appears to have proceeded from an erroneous belief that the BAP decisions are “controlling
authority”, the appellant requests that the Court grant a rehearing or reconsideration of this
appeal, and that the Court issue an amended memorandum of decision which sets forth its
analysis of the applicable law. The appellant is confident that upon doing so, it will find that the
BAP decisions are incorrect and that the bankruptcy court in the present case should be reversed.
WHEREFORE the appellant requests that the Court grant a rehearing and that the
bankruptcy court be reversed.
Dated:
October 9, 2005
Respectfully submitted,
Danh T. Nguyen
By her attorney,
/s/
David G. Baker
David G. Baker, Esq. (BBO# 634889)
105 Union Wharf
Boston, MA 02109
(617) 367-2460
CERTIFICATE OF SERVICE
The undersigned hereby states upon information and belief that the within Motion For
Rehearing and Memorandum of Law in support was served upon the appellee by the Court’s
CM/ECF system
October 9, 2005
/s/
David G. Baker
David G. Baker, Esq.
4
Third party AI contribution in government documents
Possible
Document content is reproduced directly from government sources. Some filings in our database may themselves contain AI-generated content submitted by third parties to government agencies.
Back to 
