Central District Consumer Bankruptcy Attorney's Association

Sent from my iPhone
On Apr 8, 2012, at 1:09 PM, "Mark J. Markus" wrote:
> Sorry...which of my questions are you answering "no" to?
>
>
> On 4/8/2012 11:36 AM, Dennis wrote:
>
>> No. No more than you could say that about the loss of a 523 complaint.
>>
>> Sent from my iPhone
>>
>> On Apr 7, 2012, at 8:55 PM, "Mark J. Markus" wrote:
>>
>>> Thanks Nick and Dennis. Let me change the facts a bit to better highlight my question.
>>>
>>> Let's say there was no breach of promise action. The creditor filed solely a fraud action in state court. Then let's say creditor loses on the fraud action. Is (was) that clearly a violation of 524 for which the debtor then do an OSC for contempt in the Bk court? Or, is the creditor protected merely because it was a fraud allegation?
>>>
>>> *************************
>>> 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)
>>> web: http://www.bklaw.com/
>>> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
>>> ________________________________________________
>>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, 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 in this communication.
>>>
>>> On 4/7/2012 4:21 PM, Nicholas Gebelt wrote:
>>>>
>>>> Dear Mark,
>>>>
>>>>
>>>>
>>>> If the unscheduled debt was incurred through fraud, then the holding in Beezley is that it was not discharged. However, it seems to me that there are three options you should consider as a way to perhaps make the debt dischargeable, and therefore discharged.
>>>>
>>>>
>>>>
>>>> First, the debtor could file a complaint under a combination of 523(a)(3)(B) and Fed. R. Bankr. Proc. 4007(b) to get a determination of dischargeability. Nothing in Rule 4007(b) restricts the filing of such a complaint to the creditor. If you win, the debt is discharged. Of course, you have to incur the costs and attorneys fees to get the determination, so a cost/benefit analysis is necessary before proceeding down this path. Moreover, there is no a priori guarantee of victory, so you might end up throwing money into the wind.
>>>>
>>>>
>>>>
>>>> Second, you could fight the state court action. If you win, then there is no debt to discharge. Moreover, if the creditors action was genuinely without merit, after winning you could sue the creditor for filing a frivolous suit in the first place. This approach also has the drawback of upfront costs and attorneys fees, without any guarantee of recovering them if there is a subsequent suit for frivolous prosecution. And once again, you might lose. In addition, this approach may take much more time to resolve, as the state courts are very backed up these days.
>>>>
>>>>
>>>>
>>>> Third, you could file the OSC motion without mentioning the specific state court causes of action - a sort of generic OSC motion - and hope that it dissuades the creditor from continuing the state court action. Best case scenario: you settle before the hearing on the OSC motion. Worst case scenario: the creditor correctly appeals to the holding in Beezley, or the judge, sua sponte, applies Beezley and sanctions you for filing a meritless OSC motion. The success of this third approach obviously depends on the bankruptcy law sophistication, or lack thereof, of the state court action attorney. The fact that the pending state court action has a breach of promise cause of action thrown in suggests that your opponent is unaware of Beezley, since under Beezleys holding that debt was discharged.
>>>>
>>>>
>>>>
>>>> I had a case a few years ago in which a state court attorney blew the 60-day bar (inapplicable in your case, of course) by staying a state court action without filing a 523(c) action in the bankruptcy court. The attorney had a serious lack of bankruptcy law knowledge, which worked to my clients advantage.
>>>>
>>>>
>>>>
>>>> Let me know how things pan out.
>>>>
>>>>
>>>>
>>>> Nick
>>>>
>>>>
>>>>
>>>> Nicholas Gebelt, Ph.D., J.D.
>>>>
>>>> Certified Bankruptcy Specialist
>>>>
>>>>
>>>>
>>>>
>>>>
>>>
>>
>
>
>
>
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Sent from my iPhoneOn Apr 8, 2012, at 1:09 PM, "Mark J. Markus" <bklawr@yahoo.com> wrote:

Sorry...which of my questions are you answering "no" to?


On 4/8/2012 11:36 AM, Dennis wrote:

No. No more than you could say that about the loss of a 523
complaint.

Sent from my iPhone

On Apr 7, 2012, at 8:55 PM, "Mark J. Markus" <bklawr@yahoo.com>
wrote:



Thanks Nick and Dennis.
Let me change the facts a bit to better highlight my
question.

Let's say there was no breach of promise action. The
creditor filed solely a fraud action in state court. Then
let's say creditor loses on the fraud action. Is (was) that
clearly a violation of 524 for which the debtor then do an
OSC for contempt in the Bk court? Or, is the creditor
protected merely because it was a fraud allegation?



*************************
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)
web:
The post was migrated from Yahoo.

Sorry...which of my questions are you answering "no" to?
On 4/8/2012 11:36 AM, Dennis wrote:
>
>
> No. No more than you could say that about the loss of a 523
> complaint.
>
> Sent from my iPhone
>
> On Apr 7, 2012, at 8:55 PM, "Mark J. Markus" > wrote:
>
>> Thanks Nick and Dennis. Let me change the facts a bit to better
>> highlight my question.
>>
>> Let's say there was no breach of promise action. The creditor
>> filed solely a fraud action in state court. Then let's say
>> creditor loses on the fraud action. Is (was) that clearly a
>> violation of 524 for which the debtor then do an OSC for contempt
>> in the Bk court? Or, is the creditor protected merely because it
>> was a fraud allegation?
>>
>> *************************
>> 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)
>> web: http://www.bklaw.com/
>> This Firm is a Qualified Federal Debt Relief Agency (see what
>> this means at
>> http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
>> ________________________________________________
>> NOTICE: This Electronic Message contains information from the law
>> office of Mark J. Markus that may be privileged. The information
>> is intended for the use of the addressee only. If you are not the
>> addressee, note that any disclosure, copy, distribution or use of
>> the contents of this message is prohibited.
>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements
>> imposed by the IRS, we inform you that any U.S. tax advice
>> contained in this communication (or in any attachment) is not
>> intended or written to be used, and cannot be used, 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 in this communication.
>>
>> On 4/7/2012 4:21 PM, Nicholas Gebelt wrote:
>>>
>>> Dear Mark,
>>>
>>> If the unscheduled debt was incurred through fraud, then the
>>> holding in /Beezley /is that it was not discharged. However, it
>>> seems to me that there are three options you should consider as
>>> a way to perhaps make the debt dischargeable, and therefore
>>> discharged.
>>>
>>> First, the _debtor_ could file a complaint under a combination
>>> of 523(a)(3)(B) and Fed. R. Bankr. Proc. 4007(b) to get a
>>> determination of dischargeability. Nothing in Rule 4007(b)
>>> restricts the filing of such a complaint to the creditor. If
>>> you win, the debt is discharged. Of course, you have to incur
>>> the costs and attorney's fees to get the determination, so a
>>> cost/benefit analysis is necessary before proceeding down this
>>> path. Moreover, there is no /a priori /guarantee of victory, so
>>> you might end up throwing money into the wind.
>>>
>>> Second, you could fight the state court action. If you win,
>>> then there is no debt to discharge. Moreover, if the creditor's
>>> action was genuinely without merit, after winning you could sue
>>> the creditor for filing a frivolous suit in the first place.
>>> This approach also has the drawback of upfront costs and
>>> attorney's fees, without any guarantee of recovering them if
>>> there is a subsequent suit for frivolous prosecution. And once
>>> again, you might lose. In addition, this approach may take much
>>> more time to resolve, as the state courts are very backed up
>>> these days.
>>>
>>> Third, you could file the OSC motion without mentioning the
>>> specific state court causes of action - a sort of generic OSC
>>> motion - and hope that it dissuades the creditor from continuing
>>> the state court action. Best case scenario: you settle before
>>> the hearing on the OSC motion. Worst case scenario: the
>>> creditor correctly appeals to the holding in /Beezley/, or the
>>> judge, /sua sponte/, applies /Beezley**/and sanctions you for
>>> filing a meritless OSC motion. The success of this third
>>> approach obviously depends on the bankruptcy law sophistication,
>>> or lack thereof, of the state court action attorney. The fact
>>> that the pending state court action has a breach of promise
>>> cause of action thrown in suggests that your opponent is unaware
>>> of /Beezley/, since under /Beezley/'s holding that debt was
>>> discharged.
>>>
>>> I had a case a few years ago in which a state court attorney
>>> blew the 60-day bar (inapplicable in your case, of course) by
>>> staying a state court action without filing a 523(c) action in
>>> the bankruptcy court. The attorney had a serious lack of
>>> bankruptcy law knowledge, which worked to my client's advantage.
>>>
>>> Let me know how things pan out.
>>>
>>> Nick
>>>
>>> Nicholas Gebelt, Ph.D., J.D.
>>>
>>> Certified Bankruptcy Specialist
>>>
>
>
>

The post was migrated from Yahoo.

No. No more than you could say that about the loss of a 523 complaint.
Sent from my iPhone
On Apr 7, 2012, at 8:55 PM, "Mark J. Markus" wrote:
> Thanks Nick and Dennis. Let me change the facts a bit to better highlight my question.
>
> Let's say there was no breach of promise action. The creditor filed solely a fraud action in state court. Then let's say creditor loses on the fraud action. Is (was) that clearly a violation of 524 for which the debtor then do an OSC for contempt in the Bk court? Or, is the creditor protected merely because it was a fraud allegation?
>
> *************************
> 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)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, 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 in this communication.
>
> On 4/7/2012 4:21 PM, Nicholas Gebelt wrote:
>>
>> Dear Mark,
>>
>> If the unscheduled debt was incurred through fraud, then the holding in Beezley is that it was not discharged. However, it seems to me that there are three options you should consider as a way to perhaps make the debt dischargeable, and therefore discharged.
>>
>> First, the debtor could file a complaint under a combination of 523(a)(3)(B) and Fed. R. Bankr. Proc. 4007(b) to get a determination of dischargeability. Nothing in Rule 4007(b) restricts the filing of such a complaint to the creditor. If you win, the debt is discharged. Of course, you have to incur the costs and attorneys fees to get the determination, so a cost/benefit analysis is necessary before proceeding down this path. Moreover, there is no a priori guarantee of victory, so you might end up throwing money into the wind.
>>
>> Second, you could fight the state court action. If you win, then there is no debt to discharge. Moreover, if the creditors action was genuinely without merit, after winning you could sue the creditor for filing a frivolous suit in the first place. This approach also has the drawback of upfront costs and attorneys fees, without any guarantee of recovering them if there is a subsequent suit for frivolous prosecution. And once again, you might lose. In addition, this approach may take much more time to resolve, as the state courts are very backed up these days.
>>
>> Third, you could file the OSC motion without mentioning the specific state court causes of action - a sort of generic OSC motion - and hope that it dissuades the creditor from continuing the state court action. Best case scenario: you settle before the hearing on the OSC motion. Worst case scenario: the creditor correctly appeals to the holding in Beezley, or the judge, sua sponte, applies Beezley and sanctions you for filing a meritless OSC motion. The success of this third approach obviously depends on the bankruptcy law sophistication, or lack thereof, of the state court action attorney. The fact that the pending state court action has a breach of promise cause of action thrown in suggests that your opponent is unaware of Beezley, since under Beezleys holding that debt was discharged.
>>
>> I had a case a few years ago in which a state court attorney blew the 60-day bar (inapplicable in your case, of course) by staying a state court action without filing a 523(c) action in the bankruptcy court. The attorney had a serious lack of bankruptcy law knowledge, which worked to my clients advantage.
>>
>> Let me know how things pan out.
>>
>> Nick
>>
>> Nicholas Gebelt, Ph.D., J.D.
>> Certified Bankruptcy Specialist
>>
>>
No. No more than you could say that about the loss of a 523 complaint. Sent from my iPhoneOn Apr 7, 2012, at 8:55 PM, "Mark J. Markus" <bklawr@yahoo.com> wrote:
Thanks Nick and Dennis. Let me change
the facts a bit to better highlight my question.

Let's say there was no breach of promise action. The creditor
filed solely a fraud action in state court. Then let's say
creditor loses on the fraud action. Is (was) that clearly a
violation of 524 for which the debtor then do an OSC for contempt
in the Bk court? Or, is the creditor protected merely because it
was a fraud allegation?



*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what
this means at

The post was migrated from Yahoo.

Thanks Nick and Dennis. Let me change the facts a bit to better
highlight my question.
Let's say there was no breach of promise action. The creditor filed
solely a fraud action in state court. Then let's say creditor loses
on the fraud action. Is (was) that clearly a violation of 524 for
which the debtor then do an OSC for contempt in the Bk court? Or,
is the creditor protected merely because it was a fraud allegation?
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.

No. State Court must find a fraud that is nondischargeable. You can litigate this in the Bk court after the state court makes findings.
Sent from my iPhone
On Apr 7, 2012, at 3:26 PM, "Mark J. Markus" wrote:
> So if the debt on the fraud claim is not scheduled, then it is automatically non-dischargeable without ever filing a 523 action?
>
> Sent from my iPhone 4s
>
> On Apr 7, 2012, at 2:55 PM, Nicholas Gebelt wrote:
>
>> Dear Joseph and Mark,
>>
>>
>>
>> I offer my thoughts with a suggestion on Marks OSC motion.
>>
>>
>>
>> I. In Re Staffer
>>
>>
>>
>> In re Staffer, 306 F. 3d 967 (9th Cir. 2002), is interesting because the original debt in question was alleged to have been incurred through fraud. This fact would appear to implicate 523(a)(2), and thus, through >>
>>
>>
>> However, the debtors failure to schedule the debt put it into Fed. R. Bankr. Proc. 4007(b)s provision (with emphasis added): .
>>
>>
>>
>> Moreover, the Ninth Circuit held that: [A] separate motion to reopen is not necessary when commencing an action for nondischargeability of a debt under Rule 4007(b) . . . Staffer, at 969, so the creditor could have filed the adversary complaint without even reopening the case.
>>
>>
>>
>> Finally, one minor quibble with Josephs comment. The Court didnt reject the laches argument: [W]e agree with the BAP that the debtor may assert laches as a defense when Predovichs complaint is filed. Id. The Courts focus on chronology dealt with the inapplicability of Fed. R. Bankr. Proc. 4007(c) rather than laches.
>>
>>
>>
>> Next, to Marks question.
>>
>>
>>
>> II. In Re Beezley
>>
>>
>>
>> The Beezley Court held: If the debt is of a type covered by 11 U.S.C. 523(a)(3)(B), it has not been discharged, and is non-dischargeable. In re Beezley, 994 F. 2d 1433, 1434 (9th Cir. 1993) (emphasis added).
>>
>>
>>
>> Section 523(a)(3)(B) (with emphasis added) excepts from discharge any debt
>>
>>
>>
>> neither listed nor scheduled under section 521 (a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit . . . if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, . . . timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request . . .
>>
>>
>>
>> The Beezley Courts holding is expanded on in the concurrent opinion:
>>
>>
>>
>> If the debt flows from an intentional tort "of a kind specified" in the relevant paragraphs [i.e., 523(a)(2), (4), and (6)], the debtor's failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive (at least in the absence of actual knowledge of the bankruptcy on the part of the creditor). The debt is not discharged.
>>
>>
>>
>> Beezley, at 1437 (emphasis added).
>>
>>
>>
>> In sum, an unscheduled fraud debt is not discharged, and amending the schedules after the 60-day bar date will not change that fact:
>>
>>
>>
>> Reopening a case does not extend the time to file complaints to determine dischargeability. Either the creditor had actual, timely notice of the [case] or he didn't. Amending the schedules will not change that.
>>
>>
>>
>> Beezley, at 1437 (internal quotes omitted).
>>
>>
>>
>> Therefore, your clients amending of the schedules had no effect on the question of discharge. If the debt was a fraud debt it was not discharged.
>>
>>
>>
>> III. Limit Your OSC Motion To The Breach Of Promise Action
>>
>>
>>
>> In light of the above discussion, I do not think that the creditor action clearly is - because the fraud portion of the debt was not discharged. Therefore, the state court fraud action may be characterized as the legitimate vehicle for determining the liquidated value of the debt. Consequently, I suggest that you limit your OSC motion to the impropriety of the breach of promise action and exclude the fraud action from its ambit.
>>
>>
>>
>> Good luck,
>>
>>
>>
>> Nick
>>
>>
>>
>> Nicholas Gebelt, Ph.D., J.D.
>>
>> Certified Bankruptcy Specialist
>>
>>
>>
>>
>>
>>
>>
>> Law Offices of Nicholas Gebelt
>>
>> 15150 Hornell Street
>>
>> Whittier, CA 90604
>>
>> Phone: 562.777.9159
>>
>> FAX: 562.946.1365
>>
>> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
>>
>> Web: www.goodbye2debt.com
>>
>> Blog: www.southerncaliforniabankruptcylawblog.com/
>>
>>
>>
>> We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>>
>>
>>
>> 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 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
>>
>>
>>
>> Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
>>
>>
>>
>> IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, 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.
>>
>>
>>
>>
>>
f Joseph E. Caceres
No. State Court must find a fraud that is nondischargeable. You can litigate this in the Bk court after the state court makes findings. Sent from my iPhoneOn Apr 7, 2012, at 3:26 PM, "Mark J. Markus" <bklawr@yahoo.com> wrote:

So if the debt on the fraud claim is not scheduled, then it is automatically non-dischargeable without ever filing a 523 action?Sent from my iPhone 4sOn Apr 7, 2012, at 2:55 PM, Nicholas Gebelt <ngebelt@gebeltlaw.com> wrote:

The post was migrated from Yahoo.

So if the debt on the fraud claim is not scheduled, then it is automatically non-dischargeable without ever filing a 523 action?
Sent from my iPhone 4s
On Apr 7, 2012, at 2:55 PM, Nicholas Gebelt wrote:
>
>
> Dear Joseph and Mark,
>
> I offer my thoughts with a suggestion on Marks OSC motion.
>
> I. In Re Staffer
>
> In re Staffer, 306 F. 3d 967 (9th Cir. 2002), is interesting because the original debt in question was alleged to have been incurred through fraud. This fact would appear to implicate 523(a)(2), and thus, through >
> However, the debtors failure to schedule the debt put it into Fed. R. Bankr. Proc. 4007(b)s provision (with emphasis added): .
>
> Moreover, the Ninth Circuit held that: [A] separate motion to reopen is not necessary when commencing an action for nondischargeability of a debt under Rule 4007(b) . . . Staffer, at 969, so the creditor could have filed the adversary complaint without even reopening the case.
>
> Finally, one minor quibble with Josephs comment. The Court didnat the debtor may assert laches as a defense when Predovichs complaint is filed. Id. The Courts focus on chronology dealt with the inapplicability of Fed. R. Bankr. Proc. 4007(c) rather than laches.
>
> Next, to Marks question.
>
> II. In Re Beezley
>
> The Beezley Court held: If the debt is of a type covered by 11 U.S.C. 523(a)(3)(B), it has not been discharged, and is non-dischargeable. In re Beezley, 994 F. 2d 1433, 1434 (9th Cir. 1993) (emphasis added).
>
> Section 523(a)(3)(B) (with emphasis added) excepts from discharge any debt
>
> neither listed nor scheduled under section 521 (a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit . . . if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, . . . timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request . . .
>
> The Beezley Courts holding is expanded on in the concurrent opinion:
>
> If the debt flows from an intentional tort "of a kind specified" in the relevant paragraphs [i.e., 523(a)(2), (4), and (6)], the debtor's failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive (at least in the absence of actual knowledge of the bankruptcy on the part of the creditor). The debt is not discharged.
>
> Beezley, at 1437 (emphasis added).
>
> In sum, an unscheduled fraud debt is not discharged, and amending the schedules after the 60-day bar date will not change that fact:
>
> Reopening a case does not extend the time to file complaints to determine dischargeability. Either the creditor had actual, timely notice of the [case] or he didn't. Amending the schedules will not change that.
>
> Beezley, at 1437 (internal quotes omitted).
>
> Therefore, your clients amending of the schedules had no effect on the question of discharge. If the debt was a fraud debt it was not discharged.
>
> III. Limit Your OSC Motion To The Breach Of Promise Action
>
> In light of the above discussion, I do not think that the creditor action clearly is - because the fraud portion of the debt was not discharged. Therefore, the state court fraud action may be characterized as the legitimate vehicle for determining the liquidated value of the debt. Consequently, I suggest that you limit your OSC motion to the impropriety of the breach of promise action and exclude the fraud action from its ambit.
>
> Good luck,
>
> Nick
>
> Nicholas Gebelt, Ph.D., J.D.
> Certified Bankruptcy Specialist
>
>
>
> Law Offices of Nicholas Gebelt
> 15150 Hornell Street
> Whittier, CA 90604
> Phone: 562.777.9159
> FAX: 562.946.1365
> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
> Web: www.goodbye2debt.com
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
> We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
> 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 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
>
> Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
>
> IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, 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.
>
>
Joseph E. Caceres
> Sent: Friday, April 06, 2012 6:19 PM
> To: cdcbaa@yahoogroups.com
> Cc: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] semi Beezley-related interpretation question
>
>
> I believe there is a 9th circuit case called Staffer that says there is no deadline for an unscheduled creditor to seek to reopen for purposes of a 523 suit. Case dealt with a laches argument by a debtor where creditor tried to reopen many years later, court rejected the argument.
>
> As for being safe to file OSC re contempt, I think you are, as debt still discharged under Beezley absent a ruling of non-dischargeability, it's just that the creditor can still file a 523 action since no deadline. If anything, if they file a 523 maybe you can argue they had notice when schedules amended if they did nothing within 60 days of the amendment, but that seems like a weak argument.
>
> Joseph E. Caceres, Esq.
> Sent from my iPhone
>
> On Apr 6, 2012, at 5:51 PM, "Mark J. Markus" wrote:
>
>
> We all know that per In re Beezley that failure to schedule a creditor in a no-asset Chapter 7 case does not affect the dischargeability of any debts. This works both ways, in that debts that would be dischargeable (but for failure to schedule) are discharged, but also that debts that would NOT be dischargeable (such as DSO's, certain taxes, etc.) are not discharged.
>
> My question regards those types of non-dischargeable debts which are not self-executing, namely fraud claims (523(a)(2)). Since these aren't really non-dischargeable unless and until a court makes a finding of the requisite fraud, is there any time limit for a creditor to reopen the bankruptcy case to litigate the fraud claim if they weren't scheduled?
>
> The specific facts I'm dealing with are: Debtor filed Ch. 7 and got their discharge. Debtor failed to list a certain creditor. Debtor later seeks to reopen Chapter 7 case to amend schedules and add creditor. Court allows it for some reason, and debtor amends. Creditor files lawsuit in state court against debtor claiming breach of promise and fraud for prepetition debts.
>
> My bigger question is: Am I "safe" to file an OSC re: contempt for violating section 524 or, per Beezley, was this debt not discharged?
>
> Happy Passover and/or Easter depending on your dietary and other preferences.
>
>
>
> *************************
> 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)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
> ________________________________________________
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So if the debt on the fraud claim is not scheduled, then it is automatically non-dischargeable without ever filing a 523 action?Sent from my iPhone 4sOn Apr 7, 2012, at 2:55 PM, Nicholas Gebelt <ngebelt@gebeltlaw.com> wrote:

The post was migrated from Yahoo.

We all know that per In re Beezley that failure to schedule a
creditor in a no-asset Chapter 7 case does not affect the
dischargeability of any debts. This works both ways, in that debts
that would be dischargeable (but for failure to schedule) are
discharged, but also that debts that would NOT be dischargeable
(such as DSO's, certain taxes, etc.) are not discharged.
My question regards those types of non-dischargeable debts which are
not self-executing, namely fraud claims (523(a)(2)). Since these
aren't really non-dischargeable unless and until a court makes a
finding of the requisite fraud, is there any time limit for a
creditor to reopen the bankruptcy case to litigate the fraud claim
if they weren't scheduled?
*_The specific facts I'm dealing with are_*: Debtor filed Ch. 7 and
got their discharge. Debtor failed to list a certain creditor.
Debtor later seeks to reopen Chapter 7 case to amend schedules and
add creditor. Court allows it for some reason, and debtor amends.
Creditor files lawsuit in state court against debtor claiming breach
of promise and fraud for prepetition debts.
My bigger question is: Am I "safe" to file an OSC re: contempt for
violating section 524 or, per Beezley, was this debt not discharged?
Happy Passover and/or Easter depending on your dietary and other
preferences.
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.