United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION AND DENYING AS MOOT DEFENDANT'S MOTION TO
CHRISTINE M. ARGUELLO United States District Judge.
matter is before the Court on Defendant Michael David
Wilhite's Motion to Reconsider (Doc. # 160), wherein he
requests that this Court reconsider its October 13, 2017,
Order addressing Mr. Wilhite's ownership interest in AFC
and the assets of the Yahab Foundation and permitting
garnishment of that interest. (Doc. # 159.) For the following
reasons, the Court denies the motion. This denial renders
moot the Mr. Wilhite's Motion to Stay (Doc. # 161).
to grant a motion for reconsideration is committed to the
Court's sound discretion. Hancock v. City of Oklahoma
City, 857 F.2d 1394, 1395 (10th Cir. 1988); see
United States v. Johnson, 12 F.3d 1540, 1544 (10th
Cir.1993) (a court should generally adhere to its own prior
rulings, but this rule guides the court's discretion; it
does not limit its power). “Relief under Rule 59(e)
should only be granted due to an intervening change in the
controlling law, new evidence previously unavailable, or the
need to correct clear error or prevent manifest
injustice.” Figueroa v. American Bankers Ins. Co.
of Florida, 517 F.Supp.2d 1266, 1270 (D. Colo. 2006)
(citing Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000)). Because the conditions that
justify granting a motion to reconsider are rarely present,
such motions are disfavored and should be equally rare.
See Whittington v. Taco Bell of Am., Inc., No.
10-CV-01884-KMT-MEH, 2012 WL 3705046, at *2 (D. Colo. Aug.
Wilhite requests that the Court reconsider its order for
three primary reasons. The Court addresses each reason in
NEWLY AVAILABLE EVIDENCE
Mr. Wilhite argues that “newly available
evidence” in the form of Mr. Wilhite's tax returns
demonstrate that, contrary to this Court's conclusion
otherwise, Mr. Wilhite was not intending to defraud his
creditors in anticipation of a lawsuit or other liability
under Colorado Revised Statute § 38-8-105(2)(d), (j) and
Holman v. United States, 505 F.3d 1060, 1065 n.1.
(10th Cir. 2007). (Doc. # 160 at 2.) The Court concludes that
reconsideration on this basis is unwarranted.
Wilhite's tax returns do not constitute “new
evidence previously unavailable” to him.
Figueroa, 517 F.Supp.2d at 1270. To the contrary,
Mr. Wilhite's present motion cites to his own hearing
exhibits when discussing this “new” evidence - a
hearing that occurred two years ago. Indeed, it can hardly be
argued that Mr. Wilhite's own tax returns were ever
unavailable to him.
the parties have extensively argued and briefed the
application of the CUFTA and Holman factors to this
case, and due consideration has been given the Wilhite's
argument that he did not intend to defraud his creditors in
anticipation of a lawsuit or other liability. That Mr.
Wilhite did not present his tax returns in support of his
argument in the first instance does not entitle him to a
second chance through a motion to reconsider. United
States v. D'Armond, 80 F.Supp.2d 1157, 1170 (D. Kan.
1999). Indeed, a motion to reconsider may not be used as a
vehicle for a losing party merely to rehash arguments
previously considered and rejected. Id.
STATUTE OF LIMITATIONS UNDER THE COLORADO UNIFORM
FRAUDULENT TRANSFER ACT (CUFTA) AND THE FEDERAL DEBT
COLLECTION PROCEDURES ACT (FDCPA)
Mr. Wilhite argues that “this Court's finding that
Mr. Wilhite fraudulently transferred his interest in AFC to
defraud his present and future creditors is barred by the
four-year statute of limitations under CUFTA, or
alternatively, is barred by the six-year statute of
limitations under the FDCPA.” Mr. Wilhite argues that
the Court, although it was never previously alerted to any
statute-of-limitations concerns, clearly erred in not addressing
these limitations periods and should reconsider its order to
prevent manifest injustice. The Court disagrees.
begin, the statute of limitations provision in CUFTA does not
apply here. “When the United States becomes entitled to
a claim, acting in its governmental capacity and asserts its
claim in that right, it cannot be deemed to have abdicated
its governmental authority so as to become subject to a state
statute putting a time limit upon enforcement.”
United States v. Summerlin, 310 U.S. 414, 417
(1940); United States v. Holmes, 727 F.3d 1230, 1235
(10th Cir. 2013). As this Court has already concluded, the
Government is enforcing Mr. Wilhite's restitution
obligation, which was imposed under the Mandatory
Victim's Restitution Act (MVRA) and created a lien in
favor of the Government “on all property or rights to
property” belonging to Mr. Wilhite. 18 U.S.C. 3613(a).
The Government may enforce that lien “as if the
liability of the person fined were a liability for a tax
assessed under the Internal Revenue Code of 1986, ” 18
U.S.C. § 3613(c), (f). The restitution order may be also
enforced “in accordance with the practices and
procedures for the enforcement of a civil judgment under
Federal law, ” 18 U.S.C. § 3613(a), and “by
all other available and reasonable means, ” 18 U.S.C.
§ 3664(m)(1)(A)(ii). Indeed, the United States is
enforcing Mr. Wilhite's order of restitution under the
FDCPA and the tax lien statute. Thus, the Government's
action here is “in every real sense a proceeding in
court to collect a tax, ” and the Government is
“acting in its sovereign capacity in an effort to
enforce rights ultimately grounded on federal law, ”
United States v. Holmes, 727 F.3d 1230, 1235 (10th
Cir. 2013). Therefore, the Government's claim is not
subject to the state statute-of-limitation provision in the
CUFTA. Summerlin, 310 U.S. at 414.
the six-year statute of limitations provision in the FDCPA,
28 U.S.C. § 3306(b), is also not applicable. Section
3003(b) of the FDCPA's Rules of Construction provides,
“This chapter shall not be construed to curtail or
limit the right of the United States under any Federal law or
any State law (1) to collect taxes or to collect any other
amount collectible in the same manner as a tax; [or] (2) to
collect any fine, penalty, assessment, restitution, or
forfeiture arising in a criminal case.” Applying the
six-year limitations period in 28 U.S.C. 3306(b) to this case
could clearly “curtail or limit” the
Government's right to enforce Mr. Wilhite's criminal
restitution obligation - an obligation that was imposed in
2001 and that continues for twenty years thereafter.
See 18 U.S.C. 3613(c). Indeed, the MVRA
“broadly permits the United States,
“[n]otwithstanding any other Federal law, ” ...