  |
  |
  |
    
  
   |
 | |||
|
|
|
|
| |||
(2) When a party is seeking to revoke a plan of reorganization, Bankruptcy Rule 9024 expressly limits the availability of Rule 60(b) to 180 days after the entry of the order confirming the plan.
Holding: The Lansons have failed to establish any part of the five-part test and therefore their motion is denied in all respects.
Reasoning: The removal of the Clause actually benefited the Lansons (as opposed to the Attorneys) by removing provisions that could have protected the Attorneys from claims against them. The evidence - the removal of the Clause - was not newly discovered as it was a matter of public record since the confirmation of the Plan and could have been discovered if the Lansons had been diligent in their search for evidence. Moreover, as noted, the removal of the Clause would not have led to a different result in the original claim that the Attorneys committed fraud. As for revocation or voidance of the Plan, the Lansons have likewise failed to meet their burden: the motion is untimely, they received notice of the plan and the removal of the Clause did not harm their rights.
Additionally, even if Baron's did not consent to the removal of the Clause, this did not rise to the level of fraud on the court.
Facts: The Federal Trade Commission (the "FTC") sought a determination under § 523(a)(2)(A) that its prepetition judgment - on summary judgment - against Abeyta for violations of Section 5 of the Federal Trade Commission Act (the "FTC Act") was non-dischargeable. The FTC filed a motion in this adversary proceeding requesting summary judgment in its favor on the basis that Abeyta is collaterally estopped from relitigating issues in this dischargeability action that have already been resolved in the earlier pre-petition litigation in the District Court for the District of Nevada that resulted in Abeyta's liability to the FTC.
Issues: Whether Abeyta is collaterally estopped from litigating whether the FTC claim is dischargeable under § 523(a)(2)(A) based on the pre-petition district court's finding of liability.
Holding: Abeyta is collaterally estopped and the FTC's claim is non-dischargeable.
Rules: "Collateral estoppel or issue preclusion, is a doctrine that prohibits the relitigation between the same parties of issues of ultimate fact that have been determined by a valid and final judgment... the doctrine of collateral estoppel applies to discharcheagibility actions." In determining the preclusive effect of a judgment of a federal court, a court should apply federal rules of collateral estoppel, which requires a showing of the following elements: "(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." A judgment on summary judgment can satisfy the requirement that an issue be actually and fully litigated. Moreover, there is no requirement that a party fully testify - if, for instance, a party invokes his or her Fifth Amendment rights - for the issue to have been fully litigated.
Reasoning: The bankruptcy court initially found that the FTC has standing to sue under § 523(a)(2)(A) since the only requirement for standing is a right to payment. The bankruptcy court went on to discuss the fact that the elements under § 523(a)(2)(A) had all been met in the previous summary judgment ruling by the Nevada District Court and, thus, Abeyta was collaterally estopped
