Excerpted from a
Brief in Support of a Motion
to Vacate
Partial Summary Judgment
Introduction
Three and half
years ago, Plaintiff filed a Motion for Partial Summary Judgment seeking
findings of fact, conclusions of law and judgment against Defendant Vandelay
Industries and Jerry Seinfeld. This
Court and the sitting Judge at the time (Judge Dredd) granted Plaintiff’s
motion in its entirety.[1] Before the proposed order was presented to
the judge for review and execution, before it was filed and entered, Vandelay
filed for bankruptcy and removed this matter to bankruptcy court. Plaintiff sought remand and secured from the
bankruptcy court an order remanding the case back to this Court on the express condition
that any and all claims against Vandelay (now a bankruptcy debtor) be
relinquished and dismissed (the “Bankruptcy Order”). Indeed, the Bankruptcy Order modified the
automatic stay for the express and singular purpose of allowing Plaintiff to
amend her complaint accordingly.
After a two-year
hiatus[2]
subsequent to securing remand, Plaintiff revisited this case and in an effort
to salvage partial summary judgment as to Seinfeld as rendered by this Court
against Vandelay and Seinfeld, fashioned an order that: (1) fails to reflect
the motion for judgment that she actually filed and the relief requested
therein; (2) mischaracterizes the nature and subject of the proceedings at the
hearing on the motion; and (3) fails to reflect the actual decision of the
Court resulting from the motion, opposition, affidavits, evidence, exhibits,
oral argument, and deliberation on the matter.
Instead,
Plaintiff endeavored to whitewash the Order in a futile effort to avoid running
afoul of the provisions of §362 and the automatic stay. Plaintiff did not succeed. Indeed, the Order as filed and entered,
directly violates the mandate of the Bankruptcy Court’s Order for Remand and is
void ab initio pursuant to NRCP
60(b)(4). It is an impermissible continuance of a proceeding against Debtor.
If
the Belated order stands in its present form, despite Plaintiff’s superficial
efforts to avoid affecting the Debtor and its estate, the net result would be
that the Deed of Trust on the Pueblo Property must be revised and rerecorded rescinding
Plaintiff’s pro rata interest in same.
As a result the Debtor’s Note in favor of Plaintiff must be reinstated
and reflected by the Debtor obliging it to amend Debtor’s bankruptcy schedules
to the detriment of Debtor’s estate and Plaintiff would be obliged to return to
the Debtor’s estate the $61,033.01 she received as part of the transaction she now claims she rescinded. Such a result is not consistent with the
Bankruptcy Order on Remand which presumed that any and all claims against
Debtor were to be dismissed prior to
Plaintiff proceeding on remand in state court.[3]
Moreover,
Plaintiff’s efforts to re-characterize the nature of her motion for partial
summary judgment, the proceedings at the hearing and the Judge’s decision,
result in plain misstatements of facts not otherwise in dispute, and as a
consequence, must be vacated pursuant to NRCP 60(b)(1). Plaintiff’s contortion of findings in an
effort to superficially comply with the Bankruptcy Court Order does not comport
with the facts and constitutes fraud, misrepresentation or other misconduct as
contemplated by NRCP 60(b)(3).
