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2004 Exam
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Not correct. Rule 2004 requires a Court Order - always.
Rule 2004 is not applicable and NOT AVAILABLE when there is either:
1) an ADVERSARY PROCEEDING or
2) CONTESTED MATTER
pending. When you have an adversary proceeding OR a contested matter YOU
CANNOT USE RULE 2004. Instead, you MUST use Rule 7030. Rule 7030 DOES NOT
REQUIRE a Court order.
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.
Nancy Clark
Sent: Friday, April 24, 2009 10:20 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 2004 Exam
The objection serves as a matter and controversy but the creditor must apply
to the court for permission to depose the debtors under the Bankruptcy Rules
and Fed. R. Civ. Pro. The creditor can file the objection but must seek
approval from the court to conduct discovery and must give the Debtor notice
and an opportunity to object to the request for the 2004 exam and any
discovery related to the 2004 exam. Correct?
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I believe that the creditor and our attorney have spoken but our
attorney finds the request for documents burdensome and does not want to
submit to another 2004 exam unless ordered to by the court.
________________________________
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If the court treats the objection to plan as a contested matter, the FRCP
(and the FRBP) allow the creditor to notice the deposition of the debtor.
No need to apply to the court to take a deposition or propound discovery.
If the debtor believes the written discovery (rogs, rfa or rfp) are
burdensome, you should apply to the court for a protective order. Be aware
that you must meet and confer first and that court's hate to become involved
in discovery disputes.
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The objection serves as a matter and controversy but the creditor must
apply to the court for permission to depose the debtors under the
Bankruptcy Rules and Fed. R. Civ. Pro. The creditor can file the
objection but must seek approval from the court to conduct discovery and
must give the Debtor notice and an opportunity to object to the request
for the 2004 exam and any discovery related to the 2004 exam. Correct?
________________________________
The post was migrated from Yahoo.
Dear Fellow Members!
Please be aware that Judge Ellen Carroll?will have a DOUBLE Chapter 13 Cf calendar
on Thursday, May 7th:?1 set of hrgs at 9:30 am and another at 1:30 pm.
Keith Alan Higginbotham
THE LAW OFFICES OF KEITH ALAN HIGGINBOTHAM
255 S. Grand Avenue, Suite #2109
Los Angeles, CA 90012-3045
213.620.0176 (Office)
213.613.1200 (Fax)
Higginbothamlaw@aol.com
To: cdcbaa@yahoogroups.com
Sent: Thu, 23 Apr 2009 6:21 pm
Subject: Re: [cdcbaa] 2004 Exam
2 points. First, under the revise local rules, parties need to meet an confer prior to seeking an rule 2004 app with the court. Second, a 2004 exam is only appropriate in the absence of an adversary proceeding or contested matter. If an objection to plan has been filed, it should be treated as a contested matter (rule 9024 or 9014) and parties may utilize all discovery under rule 7001 et seq. None of this obviates the need to timely file a complaint objecting to discharge or seek extension of the deadline to file such a complaint.
Larry
Sent via BlackBerry by AT&T
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Can a creditor claim that they do not need court approval to do a 2004 exam when they have filed an Objection to chapter 13 confirmation?
The creditor has not filed an adversary and has one week before the deadline to file expires. The creditor is claiming that the debt is non-dischargeable due to the fact that the loan documents did not list the amount the debtors owed to other creditors. However, all the questions at the 2004 exam are related to the debtors current income and expenses. The creditor is asking for proof of every expense.
If the debtors, under the misunderstanding that the creditor received approval from the court to conduct the 2004 exam, show up to the 2004 exam with counsel waive their right to object to a stipulated continued 2004 exam? Can the debtor rescind the stipulation between counsel (not signed by the judge)?
Nancy B. Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
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