MEMORANDUM DECISION ON MOTION FOR RECONSIDERATION1

MIKE K. NAKAGAWA, Bankruptcy Judge.

On September 7, 2016, the court heard the Motion for Reconsideration ("Motion") brought by Clark County Treasurer ("County Treasurer"). The appearances of counsel were noted on the record. After arguments were presented, the matter was taken under submission.

BACKGROUND

On December 18, 2015, a voluntary Chapter 11 petition was filed by TAWK Development, LLC ("Debtor").2 (ECF No. 1). On the same date, the Clerk of the Court issued a Notice of Chapter 11 Bankruptcy Case ("Chapter 11 Notice") that included, inter alia, a deadline of April 20, 2016, for creditors to file proofs of claims. (ECF No. 3).

On December 21, 2015, Debtor filed its Disclosure Statement to Accompany Debtor's Plan of Reorganization ("Disclosure Statement"). (ECF No. 19). Attached as Exhibit "1" to the Disclosure Statement was a copy of the proposed Debtor's Plan of Reorganization ("Plan").

On December 24, 2015, a Certificate of Notice was filed attesting that a copy of the Chapter 11 Notice had been sent by first class mail that date to the parties listed in the creditor mailing matrix, including the County Treasurer. (ECF No. 39).

On January 4, 2016, an order was entered conditionally approving the Disclosure Statement that scheduled a combined hearing on confirmation of the proposed Plan as well as final approval of the Disclosure Statement ("Combined Hearing"). (ECF No. 45).

On January 6, 2016, Debtor filed its schedules of assets and liabilities ("Schedules") as well as its statement of financial affairs ("SOFA"). (ECF No. 51). The County Treasurer was included on the Debtor's list of twenty largest unsecured claims as well as its Schedule E/F of unsecured creditors having priority and non-priority unsecured claims. The City also was included in the list of twenty largest unsecured claims as well as in Schedule E/F. Additionally, both the County Treasurer and the City were included in the SOFA disclosing the creditors who had received payments from the Debtor within 90 days before the commencement of the Chapter 11 proceeding.

On January 6, 2016, notice of the Combined Hearing was filed ("Combined Hearing Notice"). (ECF No. 53).

On January 6, 2016, the City filed a proof of claim ("City POC"), assigned claim No. 1, in the unsecured amount of $10,066.74, ostensibly for unpaid sewer services.

On January 8, 2016, a Certificate of Service was filed attesting that the Combined Hearing Notice, as well as the Disclosure Statement and proposed Plan had been served by United States Mail ("Combined Hearing COS") on the County Treasurer at the address previously set forth in the Schedules and SOFA. (ECF No. 56).

On January 13, 2016, the County Treasurer filed an initial proof of claim ("Initial County POC"), assigned claim No. 2, in the secured amount of $121,408.04, which included a mailing address for notices to be sent that matched the address included in the Schedules, SOFA, and Combined Hearing COS. The Initial County POC also included email addresses for the County Treasurer and its counsel, but there is no indication on the court's docket that the County Treasurer and its counsel ever filed a request for special notice in the case. Attached to the Initial County POC is a two-page document entitled "Real Property and Special Tax Statement for Fiscal Year 2015-2016" ("Initial Tax Statement"). The second page of that Initial Tax Statement includes a "Detail of Amount Due" that presumably reflects how the County Treasurer arrived at the $121,408.04 figure for the balance due under its Initial County POC. Included in that calculation is a Property Tax Distribution Principal amount of $139,042.33, a Las Vegas Artesian Basin amount of $76.45, a Las Vegas Sewer Delinquency amount of $47,541.31, and a Property Tax Penalty amount of $4,345.56. The total of all those amounts is $191,005.65 as the total tax amount for the 2016 fiscal tax year. The difference between the total tax amount and the $121,408.04 balance figure asserted in the Initial County POC is $69,597.61.

On March 14, 2016, Debtor filed an objection to the City POC ("City POC Objection"). (ECF No. 175). That objection was supported by the declaration of Steven Lyons (ECF No. 176) and was noticed to be heard on April 20, 2016. (ECF No. 177). Debtor asserted, inter alia, that the City had misapplied payments made under the Debtor's Initial Plan and the amount set forth in the City POC, i.e., $10,066.74, had been paid in full after commencement of the current Chapter 11 proceeding. The City POC Objection, supporting declaration of the Debtor's controller, and notice of hearing were timely served by U.S. mail on the City at the address set forth in the City POC. (ECF No. 178).

On April 20, 2016, a hearing on the City POC Objection was held. The City did not file an opposition or response disputing the facts alleged in the City POC Objection, nor the testimony of the Debtor's controller. On April 25, 2016, an order was entered sustaining the Debtor's objection to the City POC. (ECF No. 208). The order was not appealed.

On April 21, 2016, the County Treasurer filed an amended proof of claim ("Amended County POC"), assigned claim No. 14, in the secured amount of $141,514.20, which included a mailing address for notices to be sent that matched the address included in the Schedules, SOFA, and Combined Hearing COS. The Amended County POC also included email addresses for the County Treasurer and its counsel, but there is no indication on the court's docket that the County Treasurer and its counsel ever filed a request for special notice in the case. Attached to the Amended County POC is a two-page document entitled "Real Property and Special Tax Statement for Fiscal Year 2015-2016" ("Amended Tax Statement"). The second page of that Amended Tax Statement includes a "Detail of Amount Due" that presumably reflects how the County Treasurer arrived at the $141,514.20 figure for the balance due under its Amended County POC. Included in that calculation is a Property Tax Distribution Principal amount of $139,042.33, a Las Vegas Artesian Basin amount of $76.45, a Las Vegas Sewer Delinquency amount of $47,541.31, a Property Tax Penalty amount of $17,651.84, a Property Tax Interest amount of $6,797.88, and a Mailing Fee amount of $2.00. The total of all those amounts is $211,111.81 as the total tax amount for the 2016 fiscal tax year. The difference between the amended total tax amount and the $141,514.20 balance figure in the Amended County POC is $69,597.61.

On June 10, 2016, Debtor filed an objection to the Amended County POC ("Claim Objection"). (ECF No. 223). The Declaration of Steven Lyons, the Debtor's controller ("Lyons Declaration"), accompanied the Claim Objection, attesting that the Debtor had timely made its first and second real property tax installment payments of $34,837.03 and $34,760.58, totaling $69,597.61, but that the County Treasurer had misapplied the payments to the sewer claim of the City that had been disallowed. Additionally, the Debtor's controller attested that the Debtor had attempted to make another real property tax installment payment, but the payment was refused by the County Treasurer. A notice was filed stating that the hearing on Claim Objection would be held before this court on July 13, 2016 ("Claim Objection Notice"). (ECF No. 225). The Claim Objection Notice specifically outlined the requirements set forth in Local Rule 3007(b) for responding to a claim objection, and the possible outcomes under Local Rule 3007(c) in the event a response to a claim objection was not filed. The Claim Objection Notice also specified under Local Rule 9014(d) that any response to the Claim Objection had to be filed no later than fourteen days before the scheduled hearing, i.e., June 29, 2016.

On June 15, 2016, Debtor filed an amended plan of reorganization ("Amended Plan") (ECF No. 227) along with an amended disclosure statement ("Amended Disclosure Statement"). (ECF No. 228).

On June 17, 2016, a certificate of service was filed attesting that on June 10, 2016, the Claim Objection and Claim Objection Notice were served by United States Mail on the County Treasurer at the address indicated in the Schedules, SOFA, Combined Hearing Notice, Initial County POC, and Amended County POC ("Claim Objection COS"). (ECF No. 234).

On June 17, 2016, an order was entered conditionally approving the Amended Disclosure Statement that scheduled a combined hearing on confirmation of the proposed Amended Plan as well as final approval of the Amended Disclosure Statement for July 13, 2016 ("Amended Combined Hearing"). (ECF No. 230). On June 17, 2016, notice of the Amended Combined Hearing was filed ("Amended Combined Hearing Notice"). (ECF No. 232).

On June 17, 2016, a Certificate of Service was filed attesting that the Amended Combined Hearing Notice, as well as the Amended Disclosure Statement and proposed Amended Plan had been served by United States Mail ("Amended Combined Hearing COS") on the County Treasurer at the address previously set forth in the Schedules, SOFA, Combined Hearing Notice, Initial County POC, and Amended County POC. (ECF No. 233).

On July 12, 2016, the Amended Combined Hearing was held. The appearances of counsel and possible witnesses were noted on the record. No objections were filed and no appearance was made on behalf of the County Treasurer. The Amended Disclosure Statement was approved on a final basis and the Amended Plan was confirmed.

On July 13, 2016, the hearing on the Claim Objection was held. No response was filed and no appearance was made on behalf of the County Treasurer. The Claim Objection was sustained as unopposed.

On July 13, 2016, an order was entered approving the Amended Disclosure Statement and confirming the Amended Plan. (ECF No. 249). The confirmed Amended Plan included a July 28, 2016, deadline for repayment of Athene Annuity and Life Company ("Athene"), the Debtor's principal secured creditor ("Repayment Deadline").

On July 15, 2016, an order was entered sustaining the Claim Objection ("Claim Objection Order"). (ECF No. 252). The order provided, inter alia, that Clark County shall not have any claim against the Debtor, and, more important, that "any and all liens held by the Clark County Treasurer against Debtor's property (including the real property identified as APN 138-13-701-058) are hereby released in their entirety and the Clark County Treasurer shall have no lien against the Debtor's property." (Emphasis added).

On July 27, 2016, the County Treasurer filed the instant Motion to reconsider the Claim Objection Order pursuant to Section 502(j). It seeks to vacate the Claim Objection Order for cause, or that the order be modified to disallow only certain portions of the amounts claimed by Clark County. (ECF No. 254). The Declaration of Rebecca Coates ("Coates Declaration"), assistant treasurer for Clark County, was filed in support of the Motion. (ECF No. 256). The Motion was noticed to be heard on August 31, 2016. (ECF No. 255).

On August 1, 2016, Debtor filed an Emergency Application for Order to Show Cause Why Clark County Treasurer Should Not be Held in Contempt for Failure to Comply with Order Approving Objection to Clark County Treasurer POC 14 ("Emergency Application") (ECF No. 262), accompanied by the Declaration of Talitha Gray Kozlowski ("Kozlowski Declaration") (ECF No. 263). Debtor alleged that the title company, First American Title Co. ("FATCo"), was refusing to issue a title policy to complete the loan necessary to refinance the Debtor's property. See Kozlowski Declaration at ¶ 2. Instead, FATCo was insisting that Clark County remove its liens against the real property. Id.

On August 2, 2016, a Certificate of Service was filed attesting that the Emergency Application and related documents were served on the County Treasurer by personal delivery and by email to the person at the mailing address set forth in the Schedules, SOFA, Combined Hearing Notice, Initial County POC, Amended County POC, and Amended Combined Hearing Notice. (ECF No. 265). On the same date, an Order to Show Cause ("OSC") was entered directing the County Treasurer to appear on August 3, 2016, to show cause why it should not be held in contempt for failing to comply with the Claim Objection Order. (ECF No. 264).

On August 3, 2016, the County Treasurer filed a supplement to the Motion ("Supplement") (ECF No. 268), along with a response to the OSC. (ECF No. 270). Although the original Motion sought relief solely under Section 502(j), the County Treasurer's Supplement seeks relief from the Claim Objection Order pursuant to FRCP 59(e), or, alternatively under FRCP 60(b).

On August 4, 2016, an order was entered on the Emergency Application to facilitate the refinance of the Debtor's real property pursuant to the confirmed Amended Plan, without prejudice to the parties' arguments and claims in connection with the Motion ("Emergency Order"). (ECF No. 272). The Emergency Order expressly provided that the County Treasurer would notify FATCo that it "has no liens or delinquent taxes against" the Debtor's real property. See Emergency Order at 2:7-9. Additionally, the order provided that if the court determines that the County Treasurer has a claim against the Debtor, the claim shall be treated and paid as an administrative claim under the confirmed Amended Plan. Id. at 2:13-16.

On August 11, 2016, an amended order was entered extending the Repayment Deadline to August 15, 2016, subject to the Debtor's payment of additional amounts to Athene in exchange for the extension. (ECF No. 276).3

On August 12, 2016, Debtor filed a notice that the conditions precedent to the effectiveness of its confirmed Amended Plan, including the repayment of Athene's secured claim, had been met. (ECF No. 278).

On August 17, 2016, Debtor filed opposition to the Motion. (ECF No. 280).

On August 24, 2016, an order was entered approving the parties' stipulation to continue the hearing on the Motion to September 7, 2016. (ECF No. 283).

On September 1, 2016, the County Treasurer filed its reply in support of the Motion that includes the additional Declaration of Rebecca Coates ("Second Coates Declaration"). (ECF No. 294).

DISCUSSION

The court initially will address whether the County Treasurer has established that it did not receive proper notice of the Claim Objection. If it did not receive proper notice, then the Motion must be granted. If it did receive proper notice, however, the court must consider whether the County Treasurer has met its burden of establishing that it is entitled to relief from the Claim Objection Order.

I. Receipt of Notice.

Under Section 502(a), a claim encompassed by a proof of claim is deemed allowed unless a party in interest objects. Under FRBP 3001(f), a properly filed proof of claim constitutes prima facie evidence of the validity and amount of the claim. If a claim is given prima facie validity, the initial burden falls on the objector to rebut the presumption of validity. See Litton Loan Servicing, LP v. Garvida (In re Garvida), 347 B.R. 697, 706-07 (B.A.P. 9th Cir. 2006). If the objecting party provides evidence sufficient to rebut the presumption, the burden shifts to the claimant to provide further evidence to support validity and amount of claim. Id. at 707. However, "[t]he ultimate burden of proof as to the claim's validity and amount" always remains with the claimant. Id. Under FRBP 3007(a), a written objection to a claim must be filed, and a copy of the objection and notice of hearing must be mailed to the claimant at least 30 days before the hearing.

In the instant case, the County Treasurer filed the Amended County POC on April 21, 2016. Debtor filed the Claim Objection on June 10, 2016, and scheduled a hearing for July 13, 2016. The Claim Objection was accompanied by the Lyons Declaration under penalty of perjury disputing the validity and amount of the Amended County POC, thereby rebutting the presumption of validity. The Claim Objection COS attests that the Claim Objection and Claim Objection Notice were mailed to the County Treasurer on June 10, 2016, more than 28 days before the hearing date. In short, the Debtor properly objected to the Amended County POC and overcame the prima facie evidence of its validity.

Also in this case, however, the County Treasurer seeks relief from the Claim Objection Order by asserting that it did not receive the Claim Objection nor the Claim Objection Notice. It asserts that it only became aware of the Claim Objection Order when it received a copy from a title company on July 19, 2016. See Coates Declaration at ¶ 4; Second Coates Declaration at ¶ 7. The County Treasurer maintains that it conducted a search of its office and is unable to locate a copy of the Claim Objection or Claim Objection Notice. See Coates Declaration at ¶ 3; Second Coates Declaration at ¶¶ 7-8. Because it cannot locate a copy of the Claim Objection or Claim Objection Notice, the County Treasurer maintains that it never received notice. See Second Coates Declaration at ¶ 10.4

When a legal document is accompanied by a certificate of service, proof of service, certificate of mailing, or similar statement attesting under penalty of perjury, that the document has been deposited into the United States mail, that attestation creates an evidentiary presumption that the document was delivered to the addressee. Known as the "mailbox rule," a proof of timely and proper mailing creates a rebuttable presumption that the mailed document was received by the addressee. See Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1202 (9th Cir. 1999); Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 206-07 (9th Cir. 1991).5 See also Nev.Rev.Stat. 47.250(13) (rebuttable presumption of receipt by mail).6

The presumption is not rebutted simply by submitting an affidavit denying receipt of the document; rather, the presumption must be overcome by clear and convincing evidence. See In re Bucknum, 951 F.2d at 206-07. Evidence to buttress such denial must be included, such as, for example, testimony from an employee that the document was not sent, or proof that other listed parties did not receive the document. Id. at 207 n.1, citing Osborn v. Ricketts (In re Ricketts), 80 B.R. 495, 498-99 (B.A.P. 9th Cir. 1987). "[C]lear and convincing evidence `indicat[es] that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, . . . but less than evidence beyond a reasonable doubt.'" United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001), quoting Black's Law Dictionary 577 (7th ed. 1999).

In this instance, the evidence submitted by the County Treasurer is insufficient to meet its burden. The Claim Objection COS states under penalty of perjury that the documents were sent by U.S. mail to the County Treasurer at the address set forth in the Amended County POC, including the reference number corresponding to the parcel number for the Debtor's property. Although the County Treasurer maintains that it had created a file regarding the Debtor's bankruptcy proceeding, see Second Coates Declaration at ¶ 7, it does not assert that no documents concerning the case were ever received. This is significant because the same mailing address for the County Treasurer was used by the Debtor for other documents served by mail in the case, including the Disclosure Statement, Plan, Combined Hearing Notice, Amended Disclosure Statement, Amended Plan, and Amended Combined Hearing Notice. Therefore, the two declarations of the assistant treasurer raise an equal inference that the Claim Objection and Claim Objection Notice were misplaced by the treasurer's office rather than that they were not received.7 Thus, the absence of documents in the County Treasurer's file contesting the County POC does not establish a high probability or reasonable certainty that the Claim Objection and Notice of Claim Objection were never received.8

Under these circumstances, the court concludes that the County Treasurer simply has not overcome the evidentiary presumption of its receipt of the Claim Objection and Claim Objection Notice by U.S. mail.9 Service having been proper under FRBP 3007(a), relief from the Claim Objection Order is not warranted on the basis of lack of notice.

II. Relief under FRCP 59(e).

FRBP 9023 provides in pertinent part that "Except as provided in this rule . . ., [FRCP 59] applies in cases under the Code. A motion for a new trial or to alter or amend a judgment shall be filed, and a court may on its own order a new trial, no later than 14 days after entry of judgment." FED.R.BANKR.P. 9023. If a "motion for reconsideration" is brought within 14 days of an order or judgment, then it is appropriate to treat it as one to alter or amend a judgment under FRCP 59(e) rather than for relief from a judgment or order under FRCP 60. See American Ironworks v. North American Const., 248 F.3d 892, 898-99 (9th Cir. 2001); Heritage Pac. Fin., LLC v. Montano (In re Montano), 501 B.R. 96, 112 (B.A.P. 9th Cir. 2013).

FRCP 59(e) permits a timely motion to alter or amend judgment, but does not specify the grounds upon which a motion to alter or amend judgment may be granted. Because FRCP 59(e) does not specify the grounds for granting relief, the court has discretion in deciding such motions. See McDowell v. Calderon, 197 F.3d 1253, 1255n.1 (9th Cir. 1999). However, relief is generally granted under FRCP 59(e) when the movant demonstrates (1) the existence of newly discovered evidence that could not have been presented at the original hearing, (2) that the court committed clear error or the court's original decision was manifestly unjust, or (3) there has been an intervening change in controlling law. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011), citing Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); see also Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013), citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). The Ninth Circuit has indicated that FRCP 59(e) "offers an `extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'" Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000), quoting 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 59.30[4] (3d ed. 2000).

In this instance, the County Treasurer's request for relief under FRCP 59(e) is timely inasmuch as the Claim Objection Order was entered on July 15, 2016, and the Motion was filed on July 27, 2016. None of the usual grounds for relief under FRCP 59(e), however, are applicable in this case. The Claim Objection was properly noticed and any evidence in support of the County POC could have been presented in a response. Thus, there is no "newly discovered" evidence that could have been presented at the scheduled hearing. Moreover, the County Treasurer's two declarations from the assistant treasurer do not present dispositive proof of the validity of the County Claim. Thus, the County Treasurer has not demonstrated clear error or manifest injustice in the Claim Objection Order.10 Finally, there is no intervening change in controlling law even suggested in this matter.

Under these circumstances, the court concludes that relief under FRCP 59(e) is not available to the County Treasurer.

III. Relief under Section 502(j) and FRCP 60(b).

Section 502(j) provides in pertinent part that a disallowed claim "may be reconsidered for cause." It further provides that "A reconsidered claim may be allowed or disallowed according to the equities of the case." Section 502(j) is implemented through Bankruptcy Rule 3008 which permits reconsideration to be obtained by motion. Where a motion under Section 502(j) is brought within the appeal period for a claim objection order, the request for relief should be analyzed under FRCP 59(e); where the motion is brought after the period, the relief requested should be analyzed under FRCP 60(b). See United Student Funds v. Wylie (In re Wylie), 349 B.R. 204, 209 (B.A.P. 9th Cir. 2006). In this case, the Motion was filed on July 27, 2016, which was within the 14-day appeal period under FRBP 8002(a)(1) that is applicable to the Claim Objection Order that was entered on July 15, 2016. Based on Wylie, the County Treasurer's Motion arguably should be considered solely under FRCP 59(e). Section 502(j), however, appears to be a broader grant of statutory authority to reconsider a claim objection order based on the particular equities of the case. For this reason, the court concludes that relief is not limited to that available under FRCP 59(e), but may be considered under FRCP 60(b).

Although FRCP 60(b) sets forth six separate grounds for relief from an order or judgment, the County Treasurer apparently relies on the "catch-all" language in FRCP 60(b)(6). See Supplement at 3:13 to 4:4. FRCP 60(b)(6) provides that the court may relieve a party from a final judgment or order for "any other reason that justifies relief." Because the language refers to "other" reasons, however, relief is not available under FRCP 60(b)(6) if the factual basis for relief would have been encompassed by the other provisions of FRCP 60(b), i.e., 60(b)(1) through 60(b)(5). See Dental Services v. Tani, 282 F.3d 1164, 1168 & n.8 (9th Cir. 2002); Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981). Thus, even though the County Treasurer apparently prefers to look only to FRCP 60(b)(6) for relief, the court must consider whether the County Treasured has ignored or failed to demonstrate it is entitled to relief under the other provisions of FRCP 60(b).

A. FRCP 60(b)(1).

FRCP 60(b)(1) permits relief from a judgment or order on the basis of "mistake, inadvertence, surprise, or excusable neglect." FED.R.CIV.P. 60(b)(1). In the instant case, no clear argument is made by the County Treasurer that relief is sought or should be granted under this provision. Rather than acknowledging the remotest of possibilities that it might have made a mistake, the County Treasurer points the finger at the U.S. Postal Service:

Reply at 2:14-21 (emphasis added). Beyond simply asserting that the post office, and apparently only the post office occasionally makes mistakes, the County Treasurer offers the equivalent of a presumption of infallibility: if the County Treasurer cannot find a document, it did not receive the document.

Not unexpectedly, the burden under FRCP 60(b)(1) rests on the moving party to show justification for its oversight, error or omission. See B. Russell, Bankruptcy Evidence Manual § 301:94 (2015 Edition). To obtain such relief, the movant must justify its actions or show that the mistake was unexpected and unavoidable rather than just careless. See Maudlin v. M/V Peacock (In re M/V Peacock), 809 F.2d 1403, 1405 (9th Cir. 1987); In re Staff Inv. Co., 146 B.R. 256, 263 (Bankr. E.D. Cal. 1993). Where a party is blameless, negligence by the party's attorney may qualify as a mistake authorizing relief under FRCP 60(b)(1). See Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988) (relief granted where debtor's attorney mistakenly believed that no answer needed to be filed, meritorious defenses existed, and prompt relief was sought). Cf., Heyman v. M.L. Mktg. Co. (In re Heyman), 116 F.3d 91, 94-96 (4th Cir. 1997) (relief denied where bankruptcy trustee was not blameless in permitting dismissal of collection action).

In this instance, the County Treasurer does not even concede the possibility that it made a mistake or inadvertently misplaced the Claim Objection and Claim Objection Notice, and therefore offers no evidence to justify its actions. It does not fault its own attorneys. And while it asserts that the U.S. Postal Service must have made a mistake or inadvertently mis-delivered the Claim Objection and Claim Objection Notice, it has offered zero evidence to support that assertion even if the alleged mistake or inadvertence of a third party is relevant under FRCP 60(b)(1). Moreover, because it will not acknowledge that the Claim Objection and Claim Objection Notice might have been received, it does not even make perhaps its best argument that the County Treasurer's failure to respond to the Claim Objection or to appear at the hearing was the result of excusable neglect.11

Under these circumstances, the County Treasurer has failed to meet its burden of demonstrating it is entitled to relief under FRCP 60(b)(1).

B. FRCP 60(b)(2).

FRCP 60(b)(2) permits relief from a judgment or order on the basis of "newly discovered evidence." FED.R.CIV.P. 60(b)(2). The moving party must show that it discovered material evidence after the order was entered that would have produced a different result. See Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003). The standard governing a request for a new trial under FRCP 59 based on newly discovered evidence also applies to motions under FRCP 60(b)(2). See Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990). The moving party must show that due diligence was exercised to discover the new evidence before the end of trial. See Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 998 (9th Cir. 2001).

As previously discussed at 13, supra, there is no new evidence discovered by the County Treasurer that could not have been presented if it had responded to the Claim Objection. Relief under FRCP 60(b)(2) therefore is unavailable.

C. FRCP 60(b)(3).

FRCP 60(b)(3) permits relief from a judgment or order on the basis of "fraud, misrepresentation, or misconduct" by the opposing party. See FED.R.CIV.P. 60(b)(3). The moving party must present clear and convincing evidence establishing that the adverse party's misconduct prevented the movant from fully and fairly presenting a defense. See Casey v. Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); In re Wylie, 349 B.R. 204, 213 (B.A.P. 9th Cir. 2006). The culpable conduct must be attributable to the adverse party rather than the moving party itself. See Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1102 (9th Cir. 2006). Relief under FRCP 60(b)(3) lies at the discretion of the trial court. See Dixon v. Commissioner of Internal Revenue, 316 F.3d 1041, 1046 (9th Cir. 2003), citing England v. Doyle, 281 F.2d 304, 310 (9th Cir. 1960).

In this instance, the County Treasurer does not suggest any misconduct by the Debtor in obtaining the Claim Objection Order. As previously discussed in note 10, supra, the representations in the Lyons Declaration in fact are consistent with the representations in the Coates Declaration. And as previously discussed at 8-9, supra, the Debtor complied with the requirements under FRBP 3007(a) to object to the Amended County POC. Relief under FRCP 60(b)(3) therefore is unavailable.

D. FRCP 60(b)(4).

FRCP 60(b)(4) permits relief from a judgment or order on the basis that the judgment or order is "void." FED.R.CIV.P. 60(b)(4). An order or judgment is not void even if it was entered in error. See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir. 1989), overruled on other grounds, Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009). Rather, an order or judgment is void only if the court that rendered it lacked personal jurisdiction or subject matter jurisdiction, see, e.g., Wages v. Internal Revenue Service, 915 F.2d 1230, 1234 (9th Cir. 1990), or if the order or judgment was rendered in a manner inconsistent with due process. See generally, 11 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 2862 (2008). If an order or judgment is void, relief under FRCP 60(b)(4) is mandatory. See Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1256 (9th Cir. 1980).

In this case, the County Treasurer does not suggest that the Claim Objection Order is void even though it alleges that it did not receive notice. This court has personal jurisdiction over the County Treasurer inasmuch as the Amended County POC was voluntarily filed in the case. Likewise, the court has subject matter jurisdiction over this Chapter 11 proceeding, including the Claim Objection. See 28 U.S.C. § 1334(a); 28 U.S.C. § 157(b)(2)(B). Debtor complied with the requirements under FRBP 3007(a) to object to the Amended County POC and the court has concluded that the County Treasurer has failed to overcome the presumption that the Claim Objection and Claim Objection Notice were received.

On this record, the court concludes that relief from the Claim Objection Order is not available under FRCP 60(b)(4).

E. FRCP 60(b)(5).

FRCP 60(b)(5) permits relief from a judgment or order on the basis that the judgment or order has been satisfied, released, discharged, or is based on an earlier judgment that has been reversed or otherwise should not be enforced. See FED.R.CIV.P. 60(b)(5). FRCP 60(b)(5) authorizes relief from a judgment or order where the order is (1) no longer equitable; and (2) prospective in application. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441 (2004); Cincinnati Ins. Co. v. Flanders Elec. Motor Service, Inc, 131 F.3d 625, 630 (7th Cir. 1997). By its terms, the "equity" provision applies only to judgments having "prospective application." See Agostini v. Felton, 521 U.S. 203, 239 (1997); Cincinnati Ins. Co., 131 F.3d at 630. Judgments are "prospective" when they are "executory" or "involve the supervision of changing conduct or conditions" (e.g., continuing injunctions, consent decrees, etc.). See Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th Cir. 1998) (money judgment may be "prospective" to extent judgment debtor failed to pay it in timely manner, but is not "prospective" for purposes of Rule 60(b)(5)). To be eligible for relief under the "equity" provision, parties must show: (1) a significant change in facts or law that warrants revision of the judgment or decree; and (2) the proposed modification is "suitably tailored to the changed circumstance." See Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999).

In this instance, there are no changed circumstances suggested by the County Treasurer, nor apparent from the record, that warrant relief from the Claim Objection Order. Relief under FRCP 60(b)(5) therefore is not available.

F. FRCP 60(b)(6).

Under FRCP 60(b)(6), the court is authorized to vacate a prior order whenever such action is appropriate to accomplish justice. See Klapprott v. United States, 335 U.S. 601, 614-615 (1949). Ordinarily, this requires proof of extraordinary circumstances that prevented a litigant from seeking earlier, more timely relief. See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). When there is a showing of a meritorious claim or defense that was not presented to the court, relief under FRCP 60(b)(6) may be granted. Id. Where there is delay in seeking relief, fault or lack of fault by the moving party should be considered. See Pioneer Inv. Services, 507 U.S. at 393-94. Extraordinary circumstances do not exist where the moving party made a deliberate litigation choice and subsequently sought relief from that choice. See Ackermann v. United States, 340 U.S. 193, 198 (1950). In the latter situation, the party should not be provided relief under Rule 60(b)(6). See United States v. Wyle (In re Pacific Far East Lines, Inc.), 889 F.2d at 250.

In this instance, the County Treasurer asserts that it first became aware of the Claim Objection on July 19, 2016, when it received a copy of the Claim Objection Order from the title company. Eight days after it received that order, the County Treasurer filed the instant Motion on July 27, 2016. Unfortunately, the Repayment Deadline under the confirmed Amended Plan was July 28, 2016. Apparently, the title company, FATCo, had refused to issue a title policy on the Debtor's real property, even though the language of the Claim Objection Order expressly provided that Clark County's lien against the real property was released. Because FATCo would not issue a title policy, the Debtor was prevented from completing the refinance needed to comply with the Repayment Deadline.

The court, having considered Lyons Declaration and the Amended County POC, sustained the Claim Objection when the County Treasurer did not respond. In connection with the instant Motion, however, the Country Treasurer has submitted two declarations from the assistant treasurer, only one of which addresses the basis for the Amended County POC. See Coates Declaration at ¶¶ 4, 5, 6, 7 and 8. While the assistant treasurer confirms the testimony of the Debtor's controller that the Debtor made prepetition payments of $34,837.03 and $34,760.58, compare Coates Declaration at ¶ 7 with Lyons Declaration at ¶¶ 3 and 4, she does not explain how the Amended County POC reflects those payments in its attached Amended Tax Statement. While the assistant treasurer further attests that as of the date of her declaration, the Debtor had not made the Installment 3 and Installment 4 payments for the tax year, which payments appear from page one of the Amended Tax Statement to total $79,369.99, she also concludes that "Debtor owes $69,521.17." Coates Declaration at ¶ 8.12 The court can find nothing in the Coates Declaration, Lyons Declaration, Initial County POC, or Amended County POC that actually explains how she arrived at this amount. Had the court been presented with this record at the July 13, 2016 hearing, the matter would have been continued pursuant to Local Rule 3007(c), for further evidence to be presented, including an accounting.13

On its face, the Claim Objection Order did not require the County Treasurer to take any affirmative action: the order determined that Clark County does not have a claim, and that any and all liens against the Debtor's real property are released. The Claim Objection Order was self-executing and did not require the County Treasurer to provide a release of its liens. Thus, it appears that FATCo could simply have relied on the Claim Objection Order itself to issue a title policy, but apparently insisted on some acknowledgment from the County Treasurer. Under these circumstances, it appears that it was FATCo's cautious approach not to issue the title policy that was the primary reason for the delay in meeting the July 28, 2016, Repayment Deadline.14

Ultimately, the County Treasurer provided the necessary assurance to FATCo so that the title policy was issued and the extended Repayment Deadline was met. In the meantime, however, the Debtor paid the $75,000 fee to Athene to obtain the extension. Neither FATCo's insistence on assurance from the County Treasurer, nor Athene's insistence on payment of an extension fee, appears to have been caused by the County Treasurer. Under these circumstances, it is inappropriate to shift to Clark County the Debtor's costs of obtaining the extension of the Repayment Deadline.

On balance, it appears that the County Treasurer may have a meritorious basis for the allowance of an administrative claim not exceeding $69,521.17. As the law disfavors the denial of potentially valid claims on a default basis, see NewGen, LLC v. Safe Cig, LLC, 2016 WL 4651406, at * 6 (9th Cir. Sep. 7, 2016), the court concludes that relief from the Claim Objection Order is appropriate under FRCP 60(b)(6).

CONCLUSION

For the reasons discussed above, the Motion will be granted and a scheduling conference on the Claim Objection will be held. A separate order has been entered contemporaneously with this Memorandum.