UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
TERRELL GLENN LOVING
KAREN BENNETT LOVING
DEBTORS CASE NO. 98-60247
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the debtors= Motion to Reconsider and to Set Aside Order, filed herein on March 23, 1999, and heard on May 6, 1999. The Order which the debtors seek to have set aside sustained the Motion of creditor Peoples Bank of Beattyville (Athe Bank@) for Allowance of Interest on Claim and Objection to Dismissal. That Motion had been heard on March 11, 1999, and only counsel for the Bank appeared. The Order sustaining the Motion was entered on March 16, 1999, and the debtors timely filed their Motion to Reconsider as set out above.
Motions to reconsider are provided for by FRBP 9024, which makes Federal Rule of Civil Procedure 60, Relief from Judgment or Order, applicable in bankruptcy. FRCP 60(b) provides in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party
The debtors= Motion to Reconsider alleges mistake. Apparently debtors= counsel had a conflict on the March 11, 1999 hearing date and thought that the Bank=s Motion would be renoticed for April 22, 1999. However, the Motion was never renoticed, and the hearing went on on March 11 as originally noticed. As set out above, debtors= counsel was not present to oppose the Motion.
Debtors contend that they have aAvalid and plausible defense@ to the Bank=s Motion, and ask the Court to reconsider the Motion and overrule it. This Court believes that there is sufficient reason to set aside the Order of March 16, 1999, and since the issues raised by the Bank=s Motion have not been briefed and the Court did not hear argument on behalf of the debtors, the Court will allow briefing time and take the matter under submission.
It is therefore ordered that the Order of March 16, 1999, sustaining the Bank=s Motion for Allowance of Interest on Claim and Objection to Dismissal is hereby set aside. It is further ordered that the debtors have fifteen (15) days from the date of entry of this Opinion and Order to brief their position on the Bank=s Motion; the Bank will have seven (7) days thereafter to reply. Upon completion of the briefing schedule, the parties are directed to tender an Order of Submission to the Court.
Entered this day of June, 1999.
By the Court -
W. Thomas Bunch, Esq.
John T. Hamilton, Esq.