United States District Court, E.D. Michigan, Southern Division
IN RE Anthony J. Dettore, Debtor.
JEM Real Estate Preferred Fund I, LLC, Defendant (Appellee). Anthony J. Dettore, Plaintiff (Appellant), Adv. Pro. No. 15-4409
Honorable Thomas J. Tucker, Judge
ORDER DENYING APPELLANT'S MOTION FOR
F. COX, UNITED STATES DISTRICT JUDGE
action involved an appeal from a Chapter 13 Adversary
Proceeding. On September 12, 2016, this Court entered an
Opinion & Order affirming the bankruptcy court's
decisions. (Doc. #18).
September 26, 2016, Appellant Anthony J. Dettore
(“Dettore”) filed a “Motion for
Reconsideration / Rehearing” pursuant to Federal Rule
of Bankruptcy Procedure 8022. (Doc. #23, Dettore's Br.).
Dettore seeks reconsideration of this Court's September
12, 2016 Opinion & Order. This Court ordered a response
to Dettore's motion, which Appellee JEM Real Estate
Preferred Fund I, LLC (“JEM”) filed on October
11, 2016. (Doc. #26, JEM's Resp.).
Rule of Bankruptcy Procedure 8022 provides that a motion for
rehearing must be filed within fourteen days after entry of
judgment. Fed. R. Bankr. Pro. 8022. It further provides that
the “motion must state with particularity each point of
law or fact that the movant believes the district court ...
has overlooked or misapprehended...” Id.
considering motions brought under Bankruptcy Rule 8022,
courts have also looked to Local Rule 7.1 of the Eastern
District of Michigan, which sets forth the grounds for
motions for rehearing or reconsideration. See Matter of
Coventry Commons Associates, 155 B.R. 446, 449 (E.D.
Mich. May 17, 1993). Rule 7.1 provides, in pertinent part,
(3) Grounds. Generally, and without restricting the
court's discretion, the court will not grant motions for
rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by
reasonable implication. The movant must not only demonstrate
a palpable defect by which the court and the parties and
other persons entitled to be heard on the motion have been
misled but also show that correcting the defect will result
in a different disposition of the case.
E.D. Mich. L.R. 7.1(h)(3).
reviewed the substance of Dettore's motion, this Court
shall DENY the Motion for Reconsideration/Rehearing, as the
arguments contained therein are without merit. Dettore has
therefore failed to satisfy the standards set forth above.
Dettore asserts that this Court erred when it determined that
Dettore had waived on appeal any argument against the
bankruptcy court's order denying Dettore's motion for
reconsideration. (Dettore's Br. at Pg ID 2007). In making
this argument, Dettore claims that “the issues raised
on appeal were nearly identical to the issues raised in
Dettore's Motion for Reconsideration.”
(Id. at Pg ID 2008). Thus, according to Dettore, he
did not waive any argument against the bankruptcy court's
decision to deny his motion for reconsideration.
argument completely misses the mark. This Court is fully
aware that Dettore's brief on appeal is essentially a
word-for-word recitation of the motion for reconsideration he
filed in the underlying Adversary Proceeding. This, however,
does not alter the fact that Dettore's appeal brief is
silent as to whether the bankruptcy court erred when it
denied his reconsideration motion. At no point in time did
Dettore seek relief in this regard. Instead, Dettore's
brief focused almost entirely on the bankruptcy court's
order granting summary judgment. In fact, Dettore's
appeal brief did not even provide the standard of review that
would apply to the bankruptcy court's denial of the
reconsideration motion. As such Dettore's first argument
fails to point to any law or fact that has been
misapprehended by this Court. Nor has Dettore demonstrated a
palpable defect by which this Court has been misled.
Dettore argues that this Court erred when it declined to
consider an affidavit that was untimely presented to the
bankruptcy court. (Id. at Pg ID 2008-09).
Specifically at issue here is Dettore's own affidavit,
which was not presented to the bankruptcy court at the
summary judgment stage. Instead, Dettore attached the
affidavit to his post-judgment motion for reconsideration and
the bankruptcy court determined that it was untimely.
appeal, Dettore offered the affidavit in support of why he
believed the bankruptcy court erred in granting summary
judgment. Because this affidavit was not presented to the
bankruptcy court at the time that it made its summary
judgment decision, this Court correctly refused to consider
it. See Am. Meat Inst. v. Pridgeon, 742 F.2d 45, 47
(6th Cir. 1984) (finding that an issue raised for the first
time in a motion to reconsider ... was untimely and thus
waived on appeal).
has not cited any applicable case law that stands for the
proposition that a court should consider affidavits and/or
arguments that are presented for the first time in a motion
for reconsideration. This is especially ...