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Impediment to Settling 523(a)(2) claim?
Ask Maggie about this issue, she had a similar issue arise in a case of hers recently.
Peter M. Lively, J.D., M.B.A.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Monday, September 22, 2014 1:49 AM, "Holly Roark hollyroark22@gmail.com [cdcbaa]" wrote:
No one responded to this thread. I am curious.
I have a case where we have stipulated to exception from discharge, with no admission of liability. We do not want the statute mentioned in the judgment, but the creditor is arguing it has to be in there (523(a)(2)). I have had stipulated judgments entered before that just say the debt is nondischargeable, period, with no reference to the statute, but that was back in 2007.
Perhaps things have changed.
I am curious to hear your experience since Cacciatori.
Holly Roark
Certified Bankruptcy Specialist*
and Sports Lawyer
holly@roarklawoffices.com **primary email address**
http://www.roarklawoffices.com/
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Fri, Jul 18, 2014 at 5:40 PM, Jason Wallach jwallach@gladstonemichel.com [cdcbaa] wrote:
>
>Has anyone, (in attempting to settle a nondischargeability claim, including 523(a)(2)) been confronted with In re Cacciatori, 465 BR 545, a Judge Mark Wallace decision in 2012 (affirmed by the District Court, Judge Wu), that denied approval of a stipulation for a nondischargeable judgment, stating,>"Second, the Court cannot and should not approve a settlement stipulation in a section 523(a)(2) matter that does not stipulate that fraud has been committed." and citing MBNA
Amer. Bank, 352 B.R. at 278; FIA Card Services v. Moore (In re Moore), 2008 Bankr. LEXIS 4292,
2008 WL 2874368 (Bankr. E.D. Ky. 2008). ??
>
>
>In his opinion, Judge Wallace made it clear that he did not think a fraud had been committed much less proven, and Debtor was pro se. Bad facts and a sympathetic judge doing the right thing.
>But this opinion seems to broadly get in the way of well-informed debtors with good counsel, in or outside a mediated setting, agreeing to a nondischargeable judgment in a compromised amount that is either entered now or only on default. The debtor rarely wants to admit that he or she committed a fraud.
>
>
>Has this come up in your cases? Anyone aware of contrary authority?
>
>
>Jason
>
>--
>JASON WALLACH, ESQ.
>Gladstone Michel Weisberg Willner & Sloane, ALC
>4551 Glencoe Avenue, Suite 300
>Marina del Rey CA 90292-7925
>Tel: (310) 821-9000
>Direct: (310) 775-8725
>Fax: (310) 775-8775
>Email: jwallach@ gladstonemichel.com
>www. gladstonemichel.com
>
The post was migrated from Yahoo.
No one responded to this thread. I am curious.
I have a case where we have stipulated to exception from discharge, with no
admission of liability. We do not want the statute mentioned in the
judgment, but the creditor is arguing it has to be in there (523(a)(2)). I
have had stipulated judgments entered before that just say the debt is
nondischargeable, period, with no reference to the statute, but that was
back in 2007.
Perhaps things have changed.
I am curious to hear your experience since *Cacciatori.*
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Fri, Jul 18, 2014 at 5:40 PM, Jason Wallach jwallach@gladstonemichel.com
[cdcbaa] wrote:
>
>
> Has anyone, (in attempting to settle a nondischargeability claim,
> including 523(a)(2)) been confronted with In re Cacciatori, 465 BR 545, a
> Judge Mark Wallace decision in 2012 (affirmed by the District Court, Judge
> Wu), that denied approval of a stipulation for a nondischargeable judgment,
> stating,
> "Second, the Court cannot and should not approve a settlement stipulation
> in a section 523(a)(2) matter that does not stipulate that fraud has been
> committed." and citing MBNA Amer. Bank, 352 B.R. at 278; FIA Card
> Services v. Moore (In re Moore), 2008 Bankr. LEXIS 4292, 2008 WL 2874368
> (Bankr. E.D. Ky. 2008). ??
>
> In his opinion, Judge Wallace made it clear that he did not think a fraud
> had been committed much less proven, and Debtor was pro se. Bad facts and
> a sympathetic judge doing the right thing.
> But this opinion seems to broadly get in the way of well-informed debtors
> with good counsel, in or outside a mediated setting, agreeing to a
> nondischargeable judgment in a compromised amount that is either entered
> now or only on default. The debtor rarely wants to admit that he or she
> committed a fraud.
>
> Has this come up in your cases? Anyone aware of contrary authority?
>
> Jason
> --
> JASON WALLACH, ESQ.
> Gladstone Michel Weisberg Willner & Sloane, ALC
> 4551 Glencoe Avenue, Suite 300
> Marina del Rey CA 90292-7925
> Tel: (310) 821-9000
> Direct: (310) 775-8725
> Fax: (310) 775-8775
> Email: jwallach@ gladstonemichel.com
> www. gladstonemichel.com
>
>
>
No one responded to this thread. I am curious.I have a case where we have stipulated to exception from discharge, with no admission of liability. We do not want the statute mentioned in the judgment, but the creditor is arguing it has to be in there (523(a)(2)). I have had stipulated judgments entered before that just say the debt is nondischargeable, period, with no reference to the statute, but that was back in 2007. Perhaps things have changed. I am curious to hear your experience since Cacciatori.Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.
charset-ascii
Has anyone, (in attempting to settle a nondischargeability claim, including 523(a)(2)) been confronted with In re Cacciatori, 465 BR 545, a Judge Mark Wallace decision in 2012 (affirmed by the District Court, Judge Wu), that denied approval of a stipulation for a nondischargeable judgment, stating,"Second, the Court cannot and should not approve a settlement stipulation in a section 523(a)(2) matter that does not stipulate that fraud has been committed." and citing MBNA Amer. Bank, 352 B.R. at 278; FIA Card Services v. Moore (In re Moore), 2008 Bankr. LEXIS 4292, 2008 WL 2874368 (Bankr. E.D. Ky. 2008). ??
In his opinion, Judge Wallace made it clear that he did not think a fraud had been committed much less proven, and Debtor was pro se. Bad facts and a sympathetic judge doing the right thing.
But this opinion seems to broadly get in the way of well-informed debtors with good counsel, in or outside a mediated setting, agreeing to a nondischargeable judgment in a compromised amount that is either entered now or only on default. The debtor rarely wants to admit that he or she committed a fraud.
Has this come up in your cases? Anyone aware of contrary authority?
Jason
JASON WALLACH, ESQ.
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Avenue, Suite 300
Marina del Rey CA 90292-7925
Tel: (310) 821-9000
Direct: (310) 775-8725
Fax: (310) 775-8775
Email: jwallach@ gladstonemichel.com
www. gladstonemichel.com
charset-ascii
Has anyone, (in attempting to settle a nondischargeability claim, including 523(a)(2)) been confronted with In re Cacciatori, 465 BR 545, a Judge Mark Wallace decision in 2012 (affirmed by the District Court, Judge Wu), that denied approval of a stipulation for a nondischargeable judgment, stating, "Second, the Court cannot and should not approve a settlement stipulation in a section 523(a)(2) matter that does not stipulate that fraud has been committed." and citing
The post was migrated from Yahoo.