United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
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”).
Background and Procedural History
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.
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.
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
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
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.
Vacating the Confirmation Order Pursuant to Fed.R.Civ.P.
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
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence; . . .
(3) fraud[, ] misrepresentation, or ...