In re Local Communications Network, Inc., Case No. 07-12433-SSM, Januarary 2nd, 2008
This matter was before the court on a Motion to Reconsider an order dismissing an involuntary petition. The motion was filed by the petitioning creditors. In denying the motion to reconsider, the court cited the relevant Fourth Circuit precedent regarding a Motion to Reconsider (FRCP 59(e) & Bankruptcy Rule 9023), which states that relief is proper (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent a manifest injustice. citing Hutchinson v. Slaton, 9947 F.2d 1076, 1081 (4th Cir. 1993). The court further state a Rule 59(e) motion is not proper. . .if it simply reiterates arguments already made and considered. Durkin v. Taylor, 444 F.Supp. 879, 889 (E.D. Va. 1977) (a Rule 59(e) motion is not “intended to give an unhappy litigant one additional chance to sway a judge.”) Because the present motion did not raise any new issues or meet any of the elements just cited, the court nonetheless, addressed some of the arguments again.
A debtor may be put into bankruptcy involuntarily on a petition filed by three or more creditors, “each of whom is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount . . . ., if such noncontingent, undisputed claims aggregate at least [$14,425] more than the value of any lien on the property of the debtor securing such claims.” Bankruptcy Code § 303(b)(1). The contingent nature of the creditors’ claims ultimately caused the court to rule against the petitioning creditors, but in doing so, the court cited the definition of contingent liability used in the Southern District of Texas, which stated that “a claim is contingent as to liability if the debtor’s legal duty to pay does not come in to existence until triggered by the occurrence of a future event and such future occurrence was within the actual or presumed contemplation of the parties at the time the original relationship of the parties was created. The court further distinguished a contingent claim from an avoidable claim by explaining that if a legal obligation to pay arose at the time of the original relationship, but that obligation is subject to being avoided by some future event or occurrence, the claim is not contingent as to liability.
