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adversary question
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Best course of action would be to oppose reopening case since purpose is
waste of time. Even if you lose and the case is reopened, you will get an
early read on the Judge's view on the statute of limitations issue. I would
not wait for the case to be reopened and have to do a summary judgment
motion or a 12(b) motion, both of which are expensive, if I could handle it
more efficiently at an earlier stage. Of course this is a gamble for the
client - slightly more legal fees in the hopes of avoiding a bigger legal
bill down the road.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Jim Selth
Sent: Friday, March 27, 2009 7:16 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] adversary question
Bankruptcy Rule 4007 and the many cases interpreting it are all very
supportive to your client's position, that if the creditor received notice
of the filing and deadline to file complaints, they bound by that deadline,
no matter what new facts they discover at a later date. Based on the facts
you lay out, the creditor's Motion to Reopen Case should be denied. There
also wouldn't seem to have any basis to bring the Motion ex parte. I'd be
curious to read that Motion, if you'd like to send me the case number off
the CDCBAA site.
Jim
James R. Selth
Weintraub & Selth, APC
12121 Wilshire Boulevard, Suite 1300
Los Angeles, California 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
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Bankruptcy Rule 4007 and the many cases interpreting it are all very supportive to your client's position, that if the creditor received notice of the filing and deadline to file complaints, they bound by that deadline, no matter what new facts they discover at a later date. Based on the facts you lay out, the creditor's Motion to Reopen Case should be denied. There also wouldn't seem to have any basis to bring the Motion ex parte. I'd be curious to read that Motion, if you'd like to send me the case number off the CDCBAA site.
Jim
James R. Selth
Weintraub & Selth, APC
12121 Wilshire Boulevard, Suite 1300
Los Angeles, California 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN-E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION
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File a Motion to Dismiss in the adversary case based upon Section 523(c)(1), 523(a)(3)(b) and Bankruptcy Rule 4007(b). Presuming the creditor had actual notice, you may also wish to consider your client's rights under Bankruptcy Rule 9011 and notify the creditor of its abusive conduct and demand prompt dismissal of the adversary. Then along with the motion to dismiss pursue the 9011 sanctions motion if if that does not work.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Wed Mar 25 15:24 , 'lindseybgreen' sent:
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Just substituted in on adversarial case where I represent debtor in Ch. 7 case. Ch. 7 case was opened in October 2007 and discharged in early part of 2008. In 2007 unsecured Creditor was on Schedule F and on mailing matrix. Unsecured creditor had notice of original bankruptcy case in 2007. Now, in late February 2009 creditor files ex parte motion to re-open case and files adversarial action claiming 523(a)(2). Isn't creditor barred from filing adversarial action as creditor was noticed in original case in 2007 and statute has run in terms of deadline to file adversarial action? Would best procedure to file motion for summary judgment on this theory?
Thank you for responses in advance.
Lindsey B. Green
Gumm & Green, LLP, Attorneys at Law
5743 Corsa Ave., Suite 111
Westlake Village, CA 91362
phone: 818 707 4233
fax: 818 707 4262
e-mail- Lindsey@gummandgreen.com
website- gummandgreen.com
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