In Re Spickelmier

469 B.R. 903 (2012)

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Nature of the Case

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Facts

Spickelmier (Ps) filed Chapter 13. Levinson, of Barry Levinson & Associates, was P's attorney. Bank of Nevada, a creditor, moved to dismiss or convert Ps' case to another chapter. On May 6, 2011, the court entered an order granting the motion. The order gave Ps time to convert or dismiss the case within thirty days. Ps voluntarily agreed to convert their case to one under Chapter 7 or voluntarily dismiss their case by June 9, 2011, and that, in the event Ps failed to pursue either of those alternatives, the Chapter 13 Trustee would have the option to submit an ex-parte request to dismiss the case. Ps did not comply and the Trustee dismissed the Chapter 13 case on June 27, 2011. On August 3, 2011, Levinson's office filed an 'Amended Motion to Vacate Order of Dismissal.' The two-page motion, consisting of a lengthy quotation of Civil Rule 60 and a statement of facts of about 10 lines, contained no legal or other analysis upon which this court could grant the relief sought. The hearing on the motion was set for September 1, 2011, at 2:30 p.m. The hearing was held as scheduled, but no one appeared for Ps. The court denied the motion on September 13, 2011. On September 20, 2011, Levinson's office filed an 'Amended Motion to Vacate Order of Dismissal on an Ordering [sic] Shortening Time' (the 'OST Motion') with respect to an 'Amended Motion to Vacate Order of Dismissal' (the 'Second Amended Motion'). The First Amended Motion, the Second Amended Motion, and the OST Motion differed only by their titles, dates, docket numbers, and hearing information. Their substance was virtually identical, indicating the use of word processing copying. Levinson's affidavit contained no reference to any other evidence in the record and added only hearsay to the cause. On September 23, 2011, the court denied the OST Motion because: it did not comply with Local Rule 9006(a); was not sufficiently supported by facts justifying the relief requested; and the relief requested had been previously requested and denied. The court's September 23, 2011 order also required Levinson's office to appear and show cause why the filing of the OST Motion did not violate Rule 9011. Mondejar, an attorney from Levinson's office, entered a late appearance. Mondejar was unprepared for the hearing. Mondejar was unable to present evidence demonstrating the existence of the prejudice nor was it able to explain how Levinson filed identical motions which have been denied by the court on prior occasions.