The Debtor also appealed the denial of its motion to reconsider the order. The BAP citied to Duarte v. Bardales 526 F.3d. 563, 567 (9th Cir. 2008) for the proposition that:
In order to justify relief under Rule 9023, the movant must show: “(a) newly discovered evidence,(b) the court committed clear error or made an initial decision that was manifestly unjust, or (c) an intervening change in controlling law.” Id. (citing Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008)).
The BK Court determined that it was not duly discovered evidence because the Debtor should have exercised reasonable diligence in obtaining the testimony about a potential issue as to the time of the sale.
The BAP Affirmed.
Query - Why didn't he file the day before?
Wackerman v. BofA et al