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late filing 523 complaint
In one of my cases, Judge Smith allowed a late-filed 523 complaint to remain
viable over my motion for SJ due to the prior filing of a non-related motion
(I think it was a proof of claim) where she allowed the creditor to "bootstrap"
the late filed complaint to the earlier filed claim (filed within the
statutory period).
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Dave is right. And I have been to the BAP over the interpretation
of Rule 4007. A lawyer we all know filed a complaint 3 days late.
He tried to argue that a pleading he filed earlier in the case was
really the complaint and so this late filing should revert back.
Even Greenwald said no way. The BAP agreed but one of the judges
filed a concurring opinion saying he would have ruled the other way
but the law is too clear. File it on time or the right is gone.
Jon
M. Jonathan Hayes
jhayes@polarisnet.net
21800 Oxnard St. Suite 840
Woodland Hills, CA 91367
(818) 710-3656
(818) 710-3659
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charset="windows-1251"
I think you could distinguish the cases if you could prove collusion, but
you still have a laches problem.
Patrick T. Green, Esq.
Fitzgerald and Green
Attorneys at Law
1010 E. Union Street #206
Pasadena, CA 91106
Ph: 626-449-8433
Fax: 626-449-0565
pg23@earthlink.net
_____
The post was migrated from Yahoo.
Look up a case Predovich vs. Staffer it may be a good starting point,
there were cases cited that said a 523 could be filed at anytime, I had
worked on the case, my memory is rusty, but I recall the issue,
depending on your judge a hurdle you could overcome.
CS
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
Sent: Wednesday, September 15, 2004 2:35 PM
To: BK Roundtable
Cc: cdcbaa@yahoogroups.com
Subject: [cdcbaa] late filing 523 complaint
I'm starting to do research on this and I'm not finding any cases on
point, so I thought I'd see if anyone in the group has direct experience
or knowledge:
Creditor was scheduled in debtor's Ch 7 bankruptcy case. Notice was
served on her business manager (who, it is believed, is part of a fraud
scheme with the debtor). Creditor was not given notice by the business
manager, the deadline under FRBP 4007 has passed (although discharge has
yet to be granted).
Creditor did ultimately find out about the Ch. 7 case via a 3rd party
about 9 months ago (yes, the case is still open for other
investigations) and now wants to bring a 523 complaint against the
debtor.
All the cases I'm finding deal with situations where the creditor was
NOT scheduled. What is the procedure in a case like this where the
creditor was scheduled but didn't receive notice until after the
deadline? (I understand there's a slim chance of prevailing, and
laches, but that's not my problem at the moment).
There are cases in the 9th circuit that say that in the situation where
the creditor was NOT scheduled, it's unnecessary to even seek court
approval to reopen the case or to file the complaint---the creditor can
merely file the complaint and the argument of laches, etc. would be an
affirmative defense.
Is it the same case here where the creditor WAS scheduled, or would a
motion need to be filed in advance to allow them to late file a
complaint? And/or is this a completely frivolous attempt?
***********************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
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Message
It doesn't really say that in 523(a)(3) but it would have to be true, otherwise it would be an absurd result.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 4:19 PM
Subject: RE: [cdcbaa] late filing 523 complaint
The address has to be correct, or 523(a)(3) applies. In your case, the address was correct. The guilty party who prejudiced your client's rights was the manager, i.e. the butler did it.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem
500 N. Brand Blvd., #460, Glendale, CA 91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of Certification
-----Original Message-----
Sent: Wednesday, September 15, 2004 4:03 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] late filing 523 complaint
Found it. Thanks. It's 61 BR 626 (9th Cir. BAP 1986). This is astonishing. All the cases seem to indicate that the deadline is very strict and the only time a late filed complaint will be allowed is if it was the court that screwed up the notice somehow (i.e. the date was wrong, etc.). Query then what is to stop an unscrupulous debtor's counsel (or the debtor) from putting down an incorrect address of a problem creditor? Perhaps leaving off a digit? They schedule the debt, so they overcome that hurdle. Notice was sent out. Creditor never receives notice. Creditor is out of luck. I mean, I'm a debtor's attorney, but that strikes me as outrageous!
***********************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
Confidentiality Note: This e-mail is intended only for the person or
entity to which it is addressed and may contain information that is privileged,
confidential, or otherwise protected from disclosure. Dissemination,
distribution, or copying of this e-mail or the information herein by anyone
other than the intended recipient, or an employee or agent responsible for
delivering the message to the intended recipient, is prohibited. If you
have received this e-mail in error, please notify us immediately at (818)
509-1173 or e-mail us at bklawr@bklaw.com and destroy the
original message and all copies.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 3:52 PM
Subject: Re: [cdcbaa] late filing 523 complaint
--- "Mark J. Markus" wrote:
> start with In re Rhoads, maybe Rhoades.
Rhoads was a lawyer, scheduled creditor, creditor
filed late, no dice, dismissed.
There was another case in the last year or two, so
shepardize. Don't recall the exact holding of the new
case, but it cites Rhoads, so you can trace through
Rhoades.
dennis
__________________________________
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Message
It doesn't really say that in 523(a)(3) but it
would have to be true, otherwise it would be an absurd result.
----- Original Message -----
From:
David
A. Tilem
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 4:19
PM
Subject: RE: [cdcbaa] late filing 523
complaint
The address has to
be correct, or 523(a)(3) applies. In your case, the address was
correct. The guilty party who prejudiced your client's rights was the
manager, i.e. the butler did it.
David A. Tilem
Certified Bankruptcy
Specialist*
Law Offices of David A.
Tilem
500 N. Brand Blvd., #460, Glendale, CA
91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business
bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of
Certification
-----Original Message-----From: Mark J. Markus
[mailto:bklawr@bklaw.com] Sent: Wednesday, September 15, 2004 4:03
PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] late
filing 523 complaint
Found it. Thanks. It's 61 BR 626 (9th
Cir. BAP 1986). This is astonishing. All the cases seem to
indicate that the deadline is very strict and the only time a late filed complaint will be allowed is if it was the court that screwed up the notice
somehow (i.e. the date was wrong, etc.). Query then what is to
stop an unscrupulous debtor's counsel (or the debtor) from putting down an
incorrect address of a problem creditor? Perhaps leaving off a
digit? They schedule the debt, so they overcome that hurdle.
Notice was sent out. Creditor never receives notice. Creditor is
out of luck. I mean, I'm a debtor's attorney, but that strikes me
as outrageous!
***********************************************Mark J.
MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB
#403Studio City, CA 91604-2652(818)509-1173(818)509-1460
(fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.
Message
They intend to do that but want to explore every possible option.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 3:55 PM
Subject: RE: [cdcbaa] late filing 523 complaint
Don't waste your time with 523. Instead, sue the business manager for fraud, breach of fiduciary duty, etc.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem
500 N. Brand Blvd., #460, Glendale, CA 91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of Certification
-----Original Message-----
Sent: Wednesday, September 15, 2004 3:35 PM
To: BK Roundtable
Cc: cdcbaa@yahoogroups.com
Subject: [cdcbaa] late filing 523 complaint
I'm starting to do research on this and I'm not finding any cases on point, so I thought I'd see if anyone in the group has direct experience or knowledge:
Creditor was scheduled in debtor's Ch 7 bankruptcy case. Notice was served on her business manager (who, it is believed, is part of a fraud scheme with the debtor). Creditor was not given notice by the business manager, the deadline under FRBP 4007 has passed (although discharge has yet to be granted).
Creditor did ultimately find out about the Ch. 7 case via a 3rd party about 9 months ago (yes, the case is still open for other investigations) and now wants to bring a 523 complaint against the debtor.
All the cases I'm finding deal with situations where the creditor was NOT scheduled. What is the procedure in a case like this where the creditor was scheduled but didn't receive notice until after the deadline? (I understand there's a slim chance of prevailing, and laches, but that's not my problem at the moment).
There are cases in the 9th circuit that say that in the situation where the creditor was NOT scheduled, it's unnecessary to even seek court approval to reopen the case or to file the complaint---the creditor can merely file the complaint and the argument of laches, etc. would be an affirmative defense.
Is it the same case here where the creditor WAS scheduled, or would a motion need to be filed in advance to allow them to late file a complaint? And/or is this a completely frivolous attempt?
***********************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
Confidentiality Note: This e-mail is intended only for the person or
entity to which it is addressed and may contain information that is privileged,
confidential, or otherwise protected from disclosure. Dissemination,
distribution, or copying of this e-mail or the information herein by anyone
other than the intended recipient, or an employee or agent responsible for
delivering the message to the intended recipient, is prohibited. If you
have received this e-mail in error, please notify us immediately at (818)
509-1173 or e-mail us at bklawr@bklaw.com and destroy the
original message and all copies.
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ADVERTISEMENT
Yahoo! Groups Links
a.. To visit your group on the web, go to:
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b.. To unsubscribe from this group, send an email to:
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c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
Message
They intend to do that but want to explore every
possible option.
----- Original Message -----
From:
David
A. Tilem
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 3:55
PM
Subject: RE: [cdcbaa] late filing 523
complaint
Don't waste your
time with 523. Instead, sue the business manager for fraud, breach of
fiduciary duty, etc.
David A. Tilem
Certified Bankruptcy
Specialist*
Law Offices of David A.
Tilem
500 N. Brand Blvd., #460, Glendale, CA
91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business
bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of
Certification
-----Original Message-----From: Mark J. Markus
[mailto:bklawr@bklaw.com] Sent: Wednesday, September 15, 2004 3:35
PMTo: BK RoundtableCc:
cdcbaa@yahoogroups.comSubject: [cdcbaa] late filing 523
complaint
I'm starting to do research on this and I'm not
finding any cases on point, so I thought I'd see if anyone in the group has
direct experience or knowledge:
Creditor was scheduled in debtor's Ch 7 bankruptcy case. Notice was served on her business manager (who, it is
believed, is part of a fraud scheme with the debtor). Creditor was not
given notice by the business manager, the deadline under FRBP 4007 has passed
(although discharge has yet to be granted).
Creditor did ultimately find out about the Ch. 7
case via a 3rd party about 9 months ago (yes, the case is still open for other
investigations) and now wants to bring a 523 complaint against the
debtor.
All the cases I'm finding deal with situations
where the creditor was NOT scheduled. What is the procedure in a case
like this where the creditor was scheduled but didn't receive notice until
after the deadline? (I understand there's a slim chance of prevailing,
and laches, but that's not my problem at the moment).
There are cases in the 9th circuit that say that
in the situation where the creditor was NOT scheduled, it's unnecessary to
even seek court approval to reopen the case or to file the complaint---the
creditor can merely file the complaint and the argument of laches, etc. would
be an affirmative defense.
Is it the same case here where the creditor WAS
scheduled, or would a motion need to be filed in advance to allow them to late
file a complaint? And/or is this a completely frivolous
attempt?
***********************************************Mark J.
MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB
#403Studio City, CA 91604-2652(818)509-1173(818)509-1460
(fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.
Found it. Thanks. It's 61 BR 626 (9th Cir. BAP 1986). This is astonishing. All the cases seem to indicate that the deadline is very strict and the only time a late filed complaint will be allowed is if it was the court that screwed up the notice somehow (i.e. the date was wrong, etc.). Query then what is to stop an unscrupulous debtor's counsel (or the debtor) from putting down an incorrect address of a problem creditor? Perhaps leaving off a digit? They schedule the debt, so they overcome that hurdle. Notice was sent out. Creditor never receives notice. Creditor is out of luck. I mean, I'm a debtor's attorney, but that strikes me as outrageous!
***********************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
Confidentiality Note: This e-mail is intended only for the person or
entity to which it is addressed and may contain information that is privileged,
confidential, or otherwise protected from disclosure. Dissemination,
distribution, or copying of this e-mail or the information herein by anyone
other than the intended recipient, or an employee or agent responsible for
delivering the message to the intended recipient, is prohibited. If you
have received this e-mail in error, please notify us immediately at (818)
509-1173 or e-mail us at bklawr@bklaw.com and destroy the
original message and all copies.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, September 15, 2004 3:52 PM
Subject: Re: [cdcbaa] late filing 523 complaint
--- "Mark J. Markus" wrote:
> start with In re Rhoads, maybe Rhoades.
Rhoads was a lawyer, scheduled creditor, creditor
filed late, no dice, dismissed.
There was another case in the last year or two, so
shepardize. Don't recall the exact holding of the new
case, but it cites Rhoads, so you can trace through
Rhoades.
dennis
__________________________________
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a.. To visit your group on the web, go to:
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c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
Found it. Thanks. It's 61 BR 626 (9th
Cir. BAP 1986). This is astonishing. All the cases seem to
indicate that the deadline is very strict and the only time a late filed
complaint will be allowed is if it was the court that screwed up the noticesomehow (i.e. the date was wrong, etc.). Query then what is to stop
an unscrupulous debtor's counsel (or the debtor) from putting down an incorrect
address of a problem creditor? Perhaps leaving off a
digit? They schedule the debt, so they overcome that hurdle.
Notice was sent out. Creditor never receives notice. Creditor is out
of luck. I mean, I'm a debtor's attorney, but that strikes me as
outrageous!
***********************************************Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173(818)509-1460 (fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.
> start with In re Rhoads, maybe Rhoades.
Rhoads was a lawyer, scheduled creditor, creditor
filed late, no dice, dismissed.
There was another case in the last year or two, so
shepardize. Don't recall the exact holding of the new
case, but it cites Rhoads, so you can trace through
Rhoades.
dennis
__________________________________
Do you Yahoo!?
Yahoo! Mail is new and improved - Check it out!
http://promotions.yahoo.com/new_mail
The post was migrated from Yahoo.
I'm starting to do research on this and I'm not finding any cases on point, so I thought I'd see if anyone in the group has direct experience or knowledge:
Creditor was scheduled in debtor's Ch 7 bankruptcy case. Notice was served on her business manager (who, it is believed, is part of a fraud scheme with the debtor). Creditor was not given notice by the business manager, the deadline under FRBP 4007 has passed (although discharge has yet to be granted).
Creditor did ultimately find out about the Ch. 7 case via a 3rd party about 9 months ago (yes, the case is still open for other investigations) and now wants to bring a 523 complaint against the debtor.
All the cases I'm finding deal with situations where the creditor was NOT scheduled. What is the procedure in a case like this where the creditor was scheduled but didn't receive notice until after the deadline? (I understand there's a slim chance of prevailing, and laches, but that's not my problem at the moment).
There are cases in the 9th circuit that say that in the situation where the creditor was NOT scheduled, it's unnecessary to even seek court approval to reopen the case or to file the complaint---the creditor can merely file the complaint and the argument of laches, etc. would be an affirmative defense.
Is it the same case here where the creditor WAS scheduled, or would a motion need to be filed in advance to allow them to late file a complaint? And/or is this a completely frivolous attempt?
***********************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
Confidentiality Note: This e-mail is intended only for the person or
entity to which it is addressed and may contain information that is privileged,
confidential, or otherwise protected from disclosure. Dissemination,
distribution, or copying of this e-mail or the information herein by anyone
other than the intended recipient, or an employee or agent responsible for
delivering the message to the intended recipient, is prohibited. If you
have received this e-mail in error, please notify us immediately at (818)
509-1173 or e-mail us at bklawr@bklaw.com and destroy the
original message and all copies.
I'm starting to do research on this and I'm not
finding any cases on point, so I thought I'd see if anyone in the group hasdirect experience or knowledge:
Creditor was scheduled in debtor's Ch 7 bankruptcy
case. Notice was served on her business manager (who, it is believed, is
part of a fraud scheme with the debtor). Creditor was not given notice by
the business manager, the deadline under FRBP 4007 has passed (although
discharge has yet to be granted).
Creditor did ultimately find out about the Ch. 7
case via a 3rd party about 9 months ago (yes, the case is still open for other
investigations) and now wants to bring a 523 complaint against the
debtor.
All the cases I'm finding deal with situations
where the creditor was NOT scheduled. What is the procedure in a case like
this where the creditor was scheduled but didn't receive notice until after the
deadline? (I understand there's a slim chance of prevailing, and laches,
but that's not my problem at the moment).
There are cases in the 9th circuit that say that in
the situation where the creditor was NOT scheduled, it's unnecessary to even
seek court approval to reopen the case or to file the complaint---the creditor
can merely file the complaint and the argument of laches, etc. would be anaffirmative defense.
Is it the same case here where the creditor WAS
scheduled, or would a motion need to be filed in advance to allow them to late
file a complaint? And/or is this a completely frivolous
attempt?
***********************************************Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173(818)509-1460 (fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.