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546 Tolling?
Since 546(a) is not jurisdictional, you can bring the actions and let the
defendant raise the SOL issue.
Regarding equitable tolling, I do not believe it applies under the facts
because there is no bad actor. Debtor is simply complying with the Chapter
13 process and after 2+ years, the case is converted to 13.
Here is what I *believe*
If case was converted form 7 to 13, then the 1 year period begins to run
after the first meeting of creditors in the 7. If there was no moc in the
7, then the first moc in the 13.
If case was initially a 13, then the 1 year period begins to run after the
first moc in the 13.
So what you have is 546(a)(2)(A) which says "2 years after the entry of the
order for relief."
This leads to an ambiguity which may have already been resolved.
As Mark said, "Section 348 states there is no change in the date of the
order for relief, so I think the 2 year period continues to run during the
Chapter 13 in your hypo."
But that is only a partial reading of Section 348 which says, "Conversion
... constitutes an order for relief ... but ... does not effect a change in
the date of ... the order for relief."
So in a 7 to 13 to 7 conversion, there are three orders for relief. Which
order for relief's date is not changed here? Presumably, the original/first
order for relief. Fine. Which order for relief is 546(a)(2)(A) referring
to? The original order for relief or the most recent order for relief?
Compare these sections to note that Congress wrote them differently:
1129(a)(3)(C)(ii):
over a period ending not later than 5 years after the date of the *order
for relief under section 301, 302, or 303*
1141(d)(4):
The court may approve a written waiver of discharge executed by the debtor
after the *order for relief under this chapter.*
546(a)(1)(A)
2 years after the entry of the *order for relief*
Clearly 1129 is referring to the original order for relief and 1141 is
referring to the order for relief after conversion but 546 is not specific
as to which order for relief it is referring to. If I was you I would argue
546 applies to every order for relief.
I believe there may be cases out there that say what I have said is wrong
but I believe my point of view may have merit. Of course, I would argue
exactly the opposite if I was on the defense!
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
101 N. Brand Blvd. PH 1920
Glendale, CA 91203
Tel: 818.276.2477 | Fax: 818.208.4550
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On Tue, Nov 24, 2015 at 10:21 AM, Larry Simons larry@lsimonslaw.com
[cdcbaa] wrote:
>
>
> In a case converted from chapter 7 to chapter 13, is the statute of
> limitations found in section 546 tolled while the case is in an active
> chapter 13? If not and the debtor's plan fizzles out after the 2 year
> period runs, query if the chapter 7 trustee can still bring avoidance
> actions if the case is reconverted
>
> Sent from my iPhone
>
>
Since 546(a) is not jurisdictional, you can bring the actions and let the defendant raise the SOL issue.Regarding equitable tolling, I do not believe it applies under the facts because there is no bad actor. Debtor is simply complying with the Chapter 13 process and after 2+ years, the case is converted to 13.Here is what I *believe*If case was converted form 7 to 13, then the 1 year period begins to run after the first meeting of creditors in the 7. If there was no moc in the 7, then the first moc in the 13.If case was initially a 13, then the 1 year period begins to run after the first moc in the 13.So what you have is 546(a)(2)(A) which says "2 years after the entry of the order for relief."This leads to an ambiguity which may have already been resolved.As Mark said, "Section 348 states there is no change in the date of the order for relief, so I think the 2 year period continues to run during the Chapter 13 in your hypo."But that is only a partial reading of Section 348 which says, "Conversion ... constitutes an order for relief ... but ... does not effect a change in the date of ... the order for relief."So in a 7 to 13 to 7 conversion, there are three orders for relief. Which order for relief's date is not changed here? Presumably, the original/first order for relief. Fine. Which order for relief is 546(a)(2)(A) referring to? The original order for relief or the most recent order for relief?Compare these sections to note that Congress wrote them differently:1129(a)(3)(C)(ii):over a period ending not later than 5 years after the date of the order for relief under section 301, 302, or 3031141(d)(4):The court may approve a written waiver of discharge executed by the debtor after the order for relief under this chapter.546(a)(1)(A)2 years after the entry of the order for reliefClearly 1129 is referring to the original order for relief and 1141 is referring to the order for relief after conversion but 546 is not specific as to which order for relief it is referring to. If I was you I would argue 546 applies to every order for relief.I believe there may be cases out there that say what I have said is wrong but I believe my point of view may have merit. Of course, I would argue exactly the opposite if I was on the defense!Sincerely,Michael Avanesian, Esq.Avanesian Law Firm101 N. Brand Blvd. PH 1920Glendale, CA 91203Tel: 818.276.2477 | Fax:818.208.4550Confidentiality:This electronic transmission and its contents are legally privileged and confidential information and intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or other use of this message and its contents is strictly prohibited. If you have received this transmission in error, please reply to us immediately and delete this message from your directory.IRS Circular 230 Disclosure:To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
On Tue, Nov 24, 2015 at 10:21 AM, Larry Simons larry@lsimonslaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
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In a case converted from chapter 7 to chapter 13, is the statute of limitations found in section 546 tolled while the case is in an active chapter 13? If not and the debtor's plan fizzles out after the 2 year period runs, query if the chapter 7 trustee can still bring avoidance actions if the case is reconverted
Sent from my iPhone
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