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Motion to Dismiss Corporate Chapter 7
OK, that makes sense. More to your specific question, I would suggest taking a look at Collier's discussion of "for cause" dismissal under Sec. 707(a). I just took a quick look at it myself, and there are several case footnotes which address "two party dispute" cases. Unfortunately, my review of those notes indicates that your facts may need to be a bit stronger, but you may not be too far off; perhaps the 341(a) can be used to obtain some additional facts.
Gary
Gary R. Wallace
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Ave., Suite 300
Marina del Rey, CA 90292
Tel. (310) 821-9000
Fax (310) 775-8775
Email: gwallace@gladstonemichel.com
Web: www.gladstonemichel.com
NOTE: The information contained in this email may contain attorney-client privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by email and delete the original message.
On May 11, 2011, at 4:32 PM, jbsesq1965 wrote:
> Good points Gary and normally I would agree. But the creditor here believes the individuals behind the company are well heeled and can pay the judgment, or a chunk of it. Yes, if the BK goes forward PC will be asking the trustee to look for preferences from the Debtor to its owners. But, PC is betting that the prospect of the owners being unable to move forward with new projects while their PERSONAL license is suspended will bring them to the table.
>
> Still looking for the authority to bring a Motion to Dismiss on these facts, thanks.
>
> Jeff Smith
>
> --- In cdcbaa@yahoogroups.com, Gary Wallace wrote:
> >
> > While it may be a good thing from a public policy standpoint if the corporate and individual debtor's license remain suspended, from the judgment creditor's standpoint, it may be better if the bk case goes ahead and the suspension is lifted. I doubt that the contractor board's mistaken reasoning for re-issuing the license is relevant to the issue of whether the corporate debt is actually discharged; it isn't, as a matter of bk law. The corporate debtor will then be free to resume operations (i.e., making money) because the entity is not automatically dissolved by the filing, and the judgment creditor will be in a position to enforce the judgment. Getting the bk dismissed will not (from your facts) get the suspension lifted and, unless there are existing assets (apparently there are none in the corp at this time), the judgment creditor will get nothing b/c the corporate debtor will not be permitted to do further business as a contractor.
> >
> > In addition, if the corporate bk continues, you can request a 2004 exam of the individual owner/principal to discover possibly recoverable transfers for the benefit of the corporation's creditors. If you are fortunate enough to have a pro-active trustee and if there are some good facts re transfers/preferences, your client may get something back through the bankruptcy (although probably nothing thereafter), and you can still write the contractor's board, thus also achieving a seemingly desirable public policy objective.
> >
> > Gary
> >
> >
> > Gary R. Wallace
> > Gladstone Michel Weisberg Willner & Sloane, ALC
> > 4551 Glencoe Ave., Suite 300
> > Marina del Rey, CA 90292
> > Tel. (310) 821-9000
> > Fax (310) 775-8775
> > Email: gwallace@...
> > Web: www.gladstonemichel.com
> > ---------
> > NOTE: The information contained in this email may contain attorney-client privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by email and delete the original message.
> >
> > On May 11, 2011, at 11:07 AM, jbsesq1965 wrote:
> >
> > > Debtor Filed a Corporate Chapter 7 and listed "none" to every question in schedule A,B,C,D,and E and no relevant information in SFA. The debtor listed one creditor, PC who has a judgment against the debtor related to a construction project gone bad.
> > >
> > > Corps get no discharge in a 7, and there are no assets listed in the petition. What's really going on here is that the Debtor has a State Contractor's licence which is supended (along with the associated individual license) as a result of the unpaid judgmnent. The state contractor's board will lift a suspension if the debt is discharged in BK. The state contractor's board, based upon my personal experience, can be duped into lifting the license suspension upon the FILING of a BK even though the debtor doesn't qualify for a discharge to begin with. I've done it myself for a corporate debtor.
> > >
> > > Besides writing to the board which may not be effective, PC is considering a motion to dismiss the BK as a bad faith filing. I seem to recall some law on the subject. No assets, no discharge available to the debtor and a two party dispute...I don't know where to start the search. Section 105? Any advice? Better yet, a form brief on similar facts?
> > >
> > > Thanks
> > >
> > > -Jeffrey B. Smith**
> > > CURD, GALINDO & SMITH, L.L.P.
> > > 301 East Ocean Blvd. #1700
> > > Long Beach, CA 90802
> > > (562) 624-1177
> > > (562) 624-1178 fax
> > > (310) 993-6560 cellular
> > > www.expertbk.com
> > > **Certified By The State Bar
> > > Of California As A Specialist
> > > In Bankruptcy Law
> > >
> > >
> >
>
>
The post was migrated from Yahoo.
Good points Gary and normally I would agree. But the creditor here believes the individuals behind the company are well heeled and can pay the judgment, or a chunk of it. Yes, if the BK goes forward PC will be asking the trustee to look for preferences from the Debtor to its owners. But, PC is betting that the prospect of the owners being unable to move forward with new projects while their PERSONAL license is suspended will bring them to the table.
Still looking for the authority to bring a Motion to Dismiss on these facts, thanks.
Jeff Smith
>
> While it may be a good thing from a public policy standpoint if the corporate and individual debtor's license remain suspended, from the judgment creditor's standpoint, it may be better if the bk case goes ahead and the suspension is lifted. I doubt that the contractor board's mistaken reasoning for re-issuing the license is relevant to the issue of whether the corporate debt is actually discharged; it isn't, as a matter of bk law. The corporate debtor will then be free to resume operations (i.e., making money) because the entity is not automatically dissolved by the filing, and the judgment creditor will be in a position to enforce the judgment. Getting the bk dismissed will not (from your facts) get the suspension lifted and, unless there are existing assets (apparently there are none in the corp at this time), the judgment creditor will get nothing b/c the corporate debtor will not be permitted to do further business as a contractor.
>
> In addition, if the corporate bk continues, you can request a 2004 exam of the individual owner/principal to discover possibly recoverable transfers for the benefit of the corporation's creditors. If you are fortunate enough to have a pro-active trustee and if there are some good facts re transfers/preferences, your client may get something back through the bankruptcy (although probably nothing thereafter), and you can still write the contractor's board, thus also achieving a seemingly desirable public policy objective.
>
> Gary
>
>
> Gary R. Wallace
> Gladstone Michel Weisberg Willner & Sloane, ALC
> 4551 Glencoe Ave., Suite 300
> Marina del Rey, CA 90292
> Tel. (310) 821-9000
> Fax (310) 775-8775
> Email: gwallace@...
> Web: www.gladstonemichel.com
> ---------
> NOTE: The information contained in this email may contain attorney-client privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by email and delete the original message.
>
> On May 11, 2011, at 11:07 AM, jbsesq1965 wrote:
>
> > Debtor Filed a Corporate Chapter 7 and listed "none" to every question in schedule A,B,C,D,and E and no relevant information in SFA. The debtor listed one creditor, PC who has a judgment against the debtor related to a construction project gone bad.
> >
> > Corps get no discharge in a 7, and there are no assets listed in the petition. What's really going on here is that the Debtor has a State Contractor's licence which is supended (along with the associated individual license) as a result of the unpaid judgmnent. The state contractor's board will lift a suspension if the debt is discharged in BK. The state contractor's board, based upon my personal experience, can be duped into lifting the license suspension upon the FILING of a BK even though the debtor doesn't qualify for a discharge to begin with. I've done it myself for a corporate debtor.
> >
> > Besides writing to the board which may not be effective, PC is considering a motion to dismiss the BK as a bad faith filing. I seem to recall some law on the subject. No assets, no discharge available to the debtor and a two party dispute...I don't know where to start the search. Section 105? Any advice? Better yet, a form brief on similar facts?
> >
> > Thanks
> >
> > -Jeffrey B. Smith**
> > CURD, GALINDO & SMITH, L.L.P.
> > 301 East Ocean Blvd. #1700
> > Long Beach, CA 90802
> > (562) 624-1177
> > (562) 624-1178 fax
> > (310) 993-6560 cellular
> > www.expertbk.com
> > **Certified By The State Bar
> > Of California As A Specialist
> > In Bankruptcy Law
> >
> >
>
The post was migrated from Yahoo.
While it may be a good thing from a public policy standpoint if the corporate and individual debtor's license remain suspended, from the judgment creditor's standpoint, it may be better if the bk case goes ahead and the suspension is lifted. I doubt that the contractor board's mistaken reasoning for re-issuing the license is relevant to the issue of whether the corporate debt is actually discharged; it isn't, as a matter of bk law. The corporate debtor will then be free to resume operations (i.e., making money) because the entity is not automatically dissolved by the filing, and the judgment creditor will be in a position to enforce the judgment. Getting the bk dismissed will not (from your facts) get the suspension lifted and, unless there are existing assets (apparently there are none in the corp at this time), the judgment creditor will get nothing b/c the corporate debtor will not be permitted to do further business as a contractor.
In addition, if the corporate bk continues, you can request a 2004 exam of the individual owner/principal to discover possibly recoverable transfers for the benefit of the corporation's creditors. If you are fortunate enough to have a pro-active trustee and if there are some good facts re transfers/preferences, your client may get something back through the bankruptcy (although probably nothing thereafter), and you can still write the contractor's board, thus also achieving a seemingly desirable public policy objective.
Gary
Gary R. Wallace
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Ave., Suite 300
Marina del Rey, CA 90292
Tel. (310) 821-9000
Fax (310) 775-8775
Email: gwallace@gladstonemichel.com
Web: www.gladstonemichel.com
NOTE: The information contained in this email may contain attorney-client privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by email and delete the original message.
On May 11, 2011, at 11:07 AM, jbsesq1965 wrote:
> Debtor Filed a Corporate Chapter 7 and listed "none" to every question in schedule A,B,C,D,and E and no relevant information in SFA. The debtor listed one creditor, PC who has a judgment against the debtor related to a construction project gone bad.
>
> Corps get no discharge in a 7, and there are no assets listed in the petition. What's really going on here is that the Debtor has a State Contractor's licence which is supended (along with the associated individual license) as a result of the unpaid judgmnent. The state contractor's board will lift a suspension if the debt is discharged in BK. The state contractor's board, based upon my personal experience, can be duped into lifting the license suspension upon the FILING of a BK even though the debtor doesn't qualify for a discharge to begin with. I've done it myself for a corporate debtor.
>
> Besides writing to the board which may not be effective, PC is considering a motion to dismiss the BK as a bad faith filing. I seem to recall some law on the subject. No assets, no discharge available to the debtor and a two party dispute...I don't know where to start the search. Section 105? Any advice? Better yet, a form brief on similar facts?
>
> Thanks
>
> -Jeffrey B. Smith**
> CURD, GALINDO & SMITH, L.L.P.
> 301 East Ocean Blvd. #1700
> Long Beach, CA 90802
> (562) 624-1177
> (562) 624-1178 fax
> (310) 993-6560 cellular
> www.expertbk.com
> **Certified By The State Bar
> Of California As A Specialist
> In Bankruptcy Law
>
>
The post was migrated from Yahoo.
I need an attorney to appear at a continued Confirmation Hearing and a LAM
Motion tomorrow afternoon in Riverside?
Who can do it or refer me to a contract attorney?
Nicholas S. Nassif, Esq.
LAW OFFICES OF NICHOLAS S. NASSIF
3055 WILSHIRE BLVD.
SUITE 900
LOS ANGELES, CA 90010
TELEPHONE- 213-736-1899
FAX- 213-736-5656
WEB- www.nassif.com
E-MAIL- nsnassif@pacbell.net
jbsesq1965
Sent: Wednesday, May 11, 2011 11:07 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Motion to Dismiss Corporate Chapter 7
Debtor Filed a Corporate Chapter 7 and listed "none" to every question in
schedule A,B,C,D,and E and no relevant information in SFA. The debtor
listed one creditor, PC who has a judgment against the debtor related to a
construction project gone bad.
Corps get no discharge in a 7, and there are no assets listed in the
petition. What's really going on here is that the Debtor has a State
Contractor's licence which is supended (along with the associated individual
license) as a result of the unpaid judgmnent. The state contractor's board
will lift a suspension if the debt is discharged in BK. The state
contractor's board, based upon my personal experience, can be duped into
lifting the license suspension upon the FILING of a BK even though the
debtor doesn't qualify for a discharge to begin with. I've done it myself
for a corporate debtor.
Besides writing to the board which may not be effective, PC is considering a
motion to dismiss the BK as a bad faith filing. I seem to recall some law
on the subject. No assets, no discharge available to the debtor and a two
party dispute...I don't know where to start the search. Section 105? Any
advice? Better yet, a form brief on similar facts?
Thanks
-Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
301 East Ocean Blvd. #1700
Long Beach, CA 90802
(562) 624-1177
(562) 624-1178 fax
(310) 993-6560 cellular
www.expertbk.com
**Certified By The State Bar
Of California As A Specialist
In Bankruptcy Law
Yahoo! Groups Links
The post was migrated from Yahoo.
Debtor Filed a Corporate Chapter 7 and listed "none" to every question in schedule A,B,C,D,and E and no relevant information in SFA. The debtor listed one creditor, PC who has a judgment against the debtor related to a construction project gone bad.
Corps get no discharge in a 7, and there are no assets listed in the petition. What's really going on here is that the Debtor has a State Contractor's licence which is supended (along with the associated individual license) as a result of the unpaid judgmnent. The state contractor's board will lift a suspension if the debt is discharged in BK. The state contractor's board, based upon my personal experience, can be duped into lifting the license suspension upon the FILING of a BK even though the debtor doesn't qualify for a discharge to begin with. I've done it myself for a corporate debtor.
Besides writing to the board which may not be effective, PC is considering a motion to dismiss the BK as a bad faith filing. I seem to recall some law on the subject. No assets, no discharge available to the debtor and a two party dispute...I don't know where to start the search. Section 105? Any advice? Better yet, a form brief on similar facts?
Thanks
-Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
301 East Ocean Blvd. #1700
Long Beach, CA 90802
(562) 624-1177
(562) 624-1178 fax
(310) 993-6560 cellular
www.expertbk.com
**Certified By The State Bar
Of California As A Specialist
In Bankruptcy Law
The post was migrated from Yahoo.