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I go a slightly different route (since I like to push the envelope). I
believe Beezley says that debts of creditors who did not receive notice in
a no asset case are discharged whether they were scheduled or not. The
exception being if the debt was not dischargeable*.
Your situation is different. You don't care if it was discharged or not,
that only goes to post petition liability for the claims. Your position is
(or I think should be) that 1. these guys were aware of the bankruptcy; 2.
they were aware of the discharge and consequently discharge injunction; 3.
they knowingly violated the court's order and they should be punished under
105(a). At least for attorneys' fees and maybe some punitive.
I personally wouldn't mix in 362 because that just clouds the issue. In
particular where it's unclear whether the stay applies.
Standard Disclaimer: I have 2 years and 15 days experience as an attorney
and I made this up on a whim so please do some independent research. I've
also never done any of the above or seen anyone do it.
*Note: I don't know the difference between nondischargeable and
non-dischargeable so I used not dischargeable
Sincerely,
Michael Avanesian
On Mon, Dec 16, 2013 at 10:05 PM, Jason Wallach wrote:
>
>
> David is entirely right. Beezley is the case. In any event, you
> scheduled the creditor who received the notice that both the principal and
> the surety filed bankruptcy and were discharged. I would warn the creditor
> and counsel that they have violated the stay and proceed to reopen and seek
> osc re contempt. This isn't a close call, at least not once you warn them.
> Their position is just defensive scrambling; although an illiterate
> self-represented non-lawyer might claim that they were confused because the
> suretyship obligation to pay the scheduled judgment was not separately
> scheduled, so the contempt wasn't willful.
> Do you have grounds to avoid the judicial lien? You could add that to the
> reopening.
> My four cents.
> Jason
>
> Jason Wallach
> Gladstone Michel Weisberg Willner & Sloane, ALC
> 4551 Glencoe Avenue, Suite 300
> Marina del Rey CA 90292
> (310) 821-9000
> www.gladstonemichel.com
> jwallach@gladstonemichel.com
>
>
>
> On Dec 16, 2013, at 8:43 PM, David Jacob wrote:
>
>
>
> I am going to quote something from a ust opinion brief it might help, some
> of the more experienced in the group can correct me on it: no asset report
> is the key
>
> " In other words, reopening a closed no-asset case to add a
> creditor has no effect on whether the omitted debt is discharged. See
> Beezley v. California Land Title Co. (In re Beezley), 994 F.2d 1433, 1434
> (9th Cir. 1993) (per curiam); American Standard Ins. Co. v. Bakehorn, 147
> B.R. 480, 483-84 (N.D. Ind. 1992).
>
> In general, the debtor's only articulated reason for seeking to
> reopen the case is to add inadvertently omitted creditors, and she often
> files the motion to reopen "in the mistaken belief that adding the creditor
> to the schedules is necessary for the debt to be discharged." Lawrence P.
> King, 3 Collier on Bankruptcy 350.03[2], at 350-6 (15th ed. rev. 1999); In
> re Harmon, 213 B.R. 805, 807 (Bankr. D.Md. 1997). However, in a no-asset
> Chapter 7 case, in which creditors will not receive any distribution from
> the estate, "there would be no purpose served by reopening a case to add an
> omitted creditor to the bankrupt's schedules." Judd, 78 F.3d at 115.
> Indeed, reopening under these circumstances "is for all practical purposes
> a useless gesture." Madaj, 149 F.3d at 468 (quoting in re Hunter, 116 B.R.
> 3, 5 (Bankr. D.D.C. 1990))."
>
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>
> On Dec 16, 2013, at 8:20 PM, Bert Briones wrote:
>
>
>
> Chapter 7 Debtors filed case, under Chapter 7, in January 2012. Has a
> Judgment lien from state court action commenced October 2006. In November
> 2011 Joint Debtor signed as a Surety so that the debtors could pursue an
> appeal which they lost. Creditor, creditors counsel, the Clerk of Court,
> and the state court Judge are all given notice of bankruptcy case. The debt
> is scheduled in Sch. D because an Abstract has been filed. Debtors
> received a Discharge in May 2012. Creditor never filed for relief from
> Stay. The notice of Stay and Notice of Discharge are recorded in the state
> court docket
>
> Following the Discharge the creditor has filed a number of Motions in the
> state court action. Now creditor is seeking a Motion for Judgment against
> "Principal and Sureties" filed in October 2013.
>
> Creditor claims that the surety bond obligation was not discharged since
> it was not separately scheduled (not known to debtors counsel at the time).
> However, I am thinking that the Judgment was the debt and the surety
> obligation may not need to be separately scheduled. IF it was a separate
> debt then can it not be amended following a successful Motion to Reopen
> case?
> Does any one have a citation for the case which holds that non-scheduled
> debt may be nonetheless be discharged? I know I saw a case like that
> sometime back!
>
> Do not the actions of the creditor violate the Discharge Injunction?
>
> Chances of reopening case to 1. File AP for violations of the Injunctions
> 2. Amend Schedules if necessary
>
> Any input is appreciated!!!
>
>
>
>
>
I go a slightly different route (since I like to push the envelope). I believe Beezley says that debts of creditors who did not receive notice in a no asset case are discharged whether they were scheduled or not. The exception being if the debt was not dischargeable*.
Your situation is different. You don't care if it was discharged or not, that only goes to post petition liability for the claims. Your position is (or I think should be) that 1. these guys were aware of the bankruptcy; 2. they were aware of the discharge and consequently discharge injunction; 3. they knowingly violated the court's order and they should be punished under 105(a). At least for attorneys' fees and maybe some punitive.
I personally wouldn't mix in 362 because that just clouds the issue. In particular where it's unclear whether the stay applies.Standard Disclaimer: I have 2 years and 15 days experience as an attorney and I made this up on a whim so please do some independent research. I've also never done any of the above or seen anyone do it.
*Note: I don't know the difference between nondischargeable and non-dischargeable so I used not dischargeable :)Sincerely,
Michael AvanesianOn Mon, Dec 16, 2013 at 10:05 PM, Jason Wallach <jwallach@gladstonemichel.com> wrote:
David is entirely right. Beezley is the case. In any event, you scheduled the creditor who received the notice that both the principal and the surety filed bankruptcy and were discharged. I would warn the creditor and counsel that they have violated the stay and proceed to reopen and seek osc re contempt. This isn't a close call, at least not once you warn them. Their position is just defensive scrambling; although an illiterate self-represented non-lawyer might claim that they were confused because the suretyship obligation to pay the scheduled judgment was not separately scheduled, so the contempt wasn't willful.
Do you have grounds to avoid the judicial lien? You could add that to the reopening.My four cents.Jason
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