Opinion
Bankruptcy No. 93-42765-172.
May 13, 1994. As Corrected Nunc Pro Tunc May 17, 1994.
Howard S. Smotkin, Riezman Blitz, P.C., St. Louis, MO, for trustee.
David L. Campbell, St. Louis, MO, for debtor.
ORDER
The matter being considered here is the Trustee's oral request to correct a clerical mistake or error arising from omission. This determination is based upon a consideration of the record as a whole. The Debtor has orally opposed the Trustee's motion. A summary of the documents that are the basis of this proceeding is set out below.
DOCUMENT NUMBER DATE FILED DESCRIPTION
Number 1 May 17, 1993 Debtor original claim of exemption
Number 10 July 19, 1993 Debtor First Amended Claim of Exemption
Number 15 August 4, 1993 Trustee Objection to documents 1 10
Number 20 August 19, 1993 Debtor response to Trustees objection
Number 21 September 30, 1993 Debtor Second Amendment to Exemptions
Number 22 October 12, 1993 Trustee Motion to Compel Turnover
Number 32 December 22, 1993 Debtor Third Amendment to Exemptions
Number 34 January 5, 1994 Order directing Debtor to turnover
Number 35 January 5, 1994 Trustee Objection to all claims of exemptions-all set for hearing on January 27, 1994
Number 38 January 13, 1994 Debtor Response to Trustee objection
Number 41 March 11, 1994 Trustee's objections set for trial on May 9, 1994.
Number 44 March 24, 1994 Order granting Trustee motion for turnover and sustaining objections to exemptions
Rule 60, Federal Rules of Civil Procedure ("FRCivP"), made applicable here by Rule 9024 of the Federal Rules of Bankruptcy Procedure ("FRBP") authorizes the Court to correct clerical mistakes or errors arising from omission at any time. The Debtor's appeal of the Bankruptcy Court Order at Document Number 44 has been docketed in the United States District Court. Pursuant to Rule 9024(a), this correction can be made only with leave of the Appellate Court. The specific correction here involves an inadvertent omission from the Court's Order that sustained the Trustee's objection to the Debtor's Amended Claim of Exemption filed on December 22, 1994 at Document Number 32.
Under Rule 60(a), a court has the power to correct omission in its judgment so as to reflect what was understood, intended and agreed upon by the parties and the court. U.S. v. Mansion House Center North Redevelopment, 855 F.2d 524, 527 (8th Cir. 1988).
The parties had submitted the Trustee's motion to compel turnover to the Court. In order that the issues concerning the right to an order of turnover be addressed, the Court was required to consider and determine one of the issues associated with the Trustee's objections to the Debtor's claims of exemption.
At page 3, paragraph 3 of the Court's Order entered on March 24, 1994, (Document Number 44) the Court addressed the Debtor's amendment to Schedule B, filed on December 22, 1993. The issues and questions with respect to this Amendment are identical to the issues and questions that were specifically referred to in later paragraphs of the Court's Order of March 24, 1994. A specific reference to the December 22, 1993 Amendment was inadvertently omitted from the Order. The parties had addressed these issues in their respective legal memoranda.
Therefore, if leave is granted by the District Court
IT IS ORDERED that this Court's Order entered on March 24, 1994 is corrected so that the following line is added as the second paragraph on page 10 of said Order, nunc pro tunc:
That the Trustee's objection to the Debtor's claim of exemption as set out in the Amendment to Schedules filed on December 22, 1993 is sustained; and
IT IS FURTHER ORDERED that said Order entered on March 24, 1993 is corrected to reflect that the Trustee's objections to exemptions are sustained only as to the claims of exemption in property referred to as the trust property, and that any remaining matters concerning the Debtor's claims of exemption will be considered at the hearings on July 12, 1994 at 10:00 a.m. in Bankruptcy Courtroom No. 1, U.S. Bankruptcy Court, Eastern District of Missouri, One Metropolitan Square, 211 North Broadway, 7th Floor, St. Louis, Missouri.