                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

In Re Secivanovic
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2381




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Recommended Citation
"In Re Secivanovic " (2005). 2005 Decisions. Paper 890.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/890


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                                                     NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                       NOS. 04-2381 & 04-2466
                         ________________

                   IN RE: PETER SECIVANOVIC,

                                   Debtor


                GARY S. JACOBSON, CHAPTER 7
               TRUSTEE FOR PETER SECIVANOVIC

                                    v.

                    PETER SECIVANOVIC AND
                      ZORA SECIVANOVIC


                             Zora Secivanovic,

                                  Appellant
              ____________________________________

            On Appeal From the United States District Court
                       For the District of New Jersey
                       (D.C. Civ. No. 04-cv-00797)
             District Judge: Honorable Garrett E. Brown, Jr.
            _______________________________________


              Submitted Under Third Circuit LAR 34.1(a)
                            July 6, 2005

Before: NYGAARD, VAN ANTWERPEN AND GREENBERG, CIRCUIT JUDGES

                       (Filed   July 7, 2005   )
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

        Zora Secivanovic appeals from the District Court’s order affirming the Bankruptcy

Court’s order that denied her motion to vacate a default judgment. For the reasons set

forth below, we will affirm.

        The parties are familiar with the facts, so we will only briefly revisit them here. In

1998, Peter Secivanovic filed a voluntary petition for personal bankruptcy protection

under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the

District of New Jersey. After the case was converted to a Chapter 7 case, Gary S.

Jacobson was appointed as the trustee. Jacobson filed a complaint against Peter

Secivanovic and Zora Secivanovic, his mother, and alleged that Peter transferred a

property to Zora for less than reasonably equivalent value. Jacobson filed a request for

entry of default judgment and a judgment was entered against both defendants in the

amount of $32,000.00. Zora Secivanovic filed a motion to vacate the default judgment; a

consent order was entered vacating the default judgment as to Zora only.1

        Approximately a year later, the Bankruptcy Court entered an order to compel

discovery. Jacobson filed a motion to strike Secivanovic’s answer for failure to comply

with the discovery order. The motion was granted and a second default judgment was


   1
       Any reference hereafter to “Secivanovic” is to Zora Secivanovic.

                                               2
entered. Secivanovic filed another motion to vacate the default judgment, which was

granted. As a condition of vacating the default judgment, the order required Secivanovic

to pay Jacobson’s counsel fees, in the amount of $5,000.00, within 30 days. When

payment was not remitted, Jacobson filed a third motion for entry of default judgment,

which was granted. Secivanovic filed another motion to vacate the default judgment; the

Bankruptcy Court denied the motion. Secivanovic then filed a notice of appeal to the

United States District Court for the District of New Jersey. The District Court affirmed

the Bankruptcy Court’s order denying the motion to vacate the default judgment.

       The District Court had jurisdiction to review the Bankruptcy Court’s orders

pursuant to 28 U.S.C. § 158(a), and we have appellate jurisdiction over the District

Court’s order under 28 U.S.C. §§ 158(d) and 1291. The entry of default and default

judgment will only be set aside if we determine that the trial court abused its discretion.

See United States v. $55,518.05 in U.S. Currency, 728 F.2d 192,195 (3d Cir. 1984); see

also Fed. R. Bankr. P. 7055, 9024; Argentaria v. Family Rests., Inc. (In re Home Rests.,

Inc.), 285 F.3d 111, 113 (1st Cir. 2002).

       In exercising its discretion, the Bankruptcy Court addressed the necessary factors

for reviewing a motion to vacate a default judgment; the Bankruptcy Court properly

denied Secivanovic’s Fed. R. Civ. P. 60(b)2 motion after concluding that (1) Jacobson

would be prejudiced if the motion was granted; (2) Secivanovic did not present a


   2
    Rule 60(b) is made applicable here by Rule 9024 of the Federal Rules of Bankruptcy
Procedure.

                                              3
meritorious defense; and (3) her conduct, which led to the default, was culpable. See

U.S. Currency, 728 F.2d at 195. We discern no abuse of discretion here. To the extent

Secivanovic attempted to raise new arguments on appeal to the District Court or is

attempting to present new arguments in this appeal, she is precluded from doing so. See

Srein v. Frankford Trust Co., 323 F.3d 214, 224 n.8 (3d Cir. 2003).

      For the reasons set forth above, we will affirm the judgment of the District Court.




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