Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez-Acevedo v. United States Department of Education

United States District Court, D. Massachusetts

March 30, 2018

VICENTE PEREZ-ACEVEDO, Debtor-Appellant,
v.
UNITED STATES DEPARTMENT OF EDUCATION, Creditor-Appellee.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This bankruptcy appeal emanates from the alleged repayment of student loans by the debtor-appellant, Vicente Perez-Acevedo (“Perez-Acevedo” or “appellant”). Those loans were incurred by Perez-Acevedo, beginning in 1993, to pursue his college education. At the time of the filing of the adversary proceeding in bankruptcy court, appellant states that he owed $3, 978 in student loans to the Department of Education (“the DOE”).

         I. Background and Procedural History

         On October 10, 2012, appellant filed for bankruptcy protection under Chapter 13 of the Bankruptcy Code. The plan was confirmed in November, 2012 and that plan was modified by order after confirmation. The Chapter 13 Trustee's final report and account was submitted in July, 2016. On May 14, 2017, appellant filed a motion to set aside discharge, revoke confirmation and modify his previously filed 36-month Chapter 13 plan, or, in the alternative, to set aside his discharge and allow him to convert to a Chapter 11 proceeding. The Bankruptcy Court denied that motion on May 18, 2017 and appellant timely filed the appeal in this Court.

         Prior to his filing of the motion to set aside his discharge, Perez-Acevedo contends that he received several telephone calls and dunning letters from collection agencies attempting to collect on behalf of the DOE. Appellant surmises that the DOE assigned claims against him to collection agencies for incorrect amounts. He asserts that the agencies have refused to provide original documentation or account No. for the student loans in question.

         In May, 2017, appellant filed in the Bankruptcy Court an emergency motion to reinstate the stay after discharge to address 11 U.S.C. § 524 violations. That motion was denied without prejudice to the filing of a motion for contempt for violating the discharge injunction. Appellant claims that he is unable to file such a motion because he cannot separate the particular entity that is violating the injunction from the several agencies that have attempted to collect the loans.

         Appellant filed a motion for a stay in this Court in May, 2017, seeking to preclude any collection efforts during the pendency of this appeal. This Court denied that motion in July, 2017, because appellant is entitled to pursue in the Bankruptcy Court a motion for contempt for any violation of his discharge.

         II. Analysis

         United States district courts have jurisdiction to hear appeals from final orders of bankruptcy courts. See 28 U.S.C. § 158. In reviewing an appeal from an order of a bankruptcy court, a district court reviews de novo conclusions of law but must accept the bankruptcy judge's findings of fact unless they are clearly erroneous. TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995). Appellant avers that the Bankruptcy Court abused its discretion when it denied appellant's motion to vacate his discharge. He contends that the Bankruptcy Court committed reversible error when it refused his request to set aside his discharge and to revoke his Chapter 13 plan confirmation in order to allow him to modify such a plan or, in the alternative, to revoke his discharge in order to be allowed to convert his bankruptcy to a Chapter 11 proceeding.

         A. Vacating the Confirmation Order Pursuant to Fed.R.Civ.P. 60(b)

         First, Perez-Acevedo contends that he is entitled to have the confirmation set aside under Fed.R.Civ.P. 60(b) as made applicable to the Bankruptcy Code through Fed.R.Bankr.P. 9024. Fed.R.Civ.P. 60(b) provides, in relevant part, that a court may relieve a party from a final judgment for any of six reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence; . . .
(3) fraud[, ] misrepresentation, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.