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Debtor with Multiple Pending Cases
it amazes me that this is a completely undecided question. i saw a very
incredible debate between a debtor's attorney and Judge Maureen Tighe on
this topic.
it convinced me that you can have two cases open so long as there is
substantially nothing left to do in the first case...
in this Vokshori example, why not re-file the second case instead of trying
to re-open it? i am guessing that the judge threw it out because you were
about to lose the motion for relief from automatic stay...
On Mon, Dec 17, 2012 at 10:05 AM, Stephen Vokshori wrote:
> **
>
>
> Debtor filed Chapter 7 in 2010 mainly to discharge liability incurred from
> a breached lease agreement. Trustee filed report of no distribution but
> landlord initiated a 727 action against the debtor and won at trial. Debtor
> then filed an appeal with the BAP but did not file a motion for stay
> pending appeal. Briefs have not been filed. ****
>
> Meanwhile, Landlord resumed its state court action for damages. We
> recently filed a C13 to discharge the debt and stay the state court action.
> Landlord filed for relief fr stay but before adjudicating the mfrs our
> judge dismissed the case sua sponte and checked the box debtor with
> multiple cases pending that have not been dismissed. ****
>
> ** **
>
> So, Ive filed a motion to vacate dismissal to proceed with the C13. The
> hearing is set for later this week and I wanted to see if anyone has had a
> similar situation.****
>
> ** **
>
> My argument is that there is no explicit prohibition in the code against
> multiple pending cases. Case law doesnt support a per se bar against
> multiple pending cases either. The analysis should instead be based on good
> faith and the single estate rule. After discussing debtors satisfaction of
> good faith, I also argue that the single estate rule is not violated
> because if property has not revested then its not possible for a single
> asset to simultaneously be included in two different bankruptcy estates. On
> the other hand, if property did revest because trustee filed report of no
> distribution in addition to the fact the deadline for objecting to
> exemptions has passed then there is no property left in C7 estate and it
> will all be part of the C13 estate. Also, the contingent on getting a
> discharge rule from *In re Grimes* doesnt solve the single estate
> problem because in that case the assets were not abandoned and the case was
> not closed so technically assets still part of C7 estate. So Im arguing
> that receiving a discharge in the C7 is not a necessary condition.****
>
> ** **
>
> Am I missing something?****
>
> ** **
>
> Stephen Vokshori****
>
> Vokshori Law Group ****
>
> 1010 Wilshire Blvd. Ste. 1404****
>
> Los Angeles, CA 90017****
>
> ****
>
> main: (213) 986-4323****
>
> fax: (310) 881-6996****
>
> email: stephen@voklaw.com****
>
> web: www.VokLaw.com ****
>
> ** **
>
>
>
it amazes me that this is a completely undecided question. i saw a very incredible debate between a debtor's attorney and Judge Maureen Tighe on this topic.it convinced me that you can have two cases open so long as there is substantially nothing left to do in the first case...
in this Vokshori example, why not re-file the second case instead of trying to re-open it? i am guessing that the judge threw it out because you were about to lose the motion for relief from automatic stay...
On Mon, Dec 17, 2012 at 10:05 AM, Stephen Vokshori <stephen@voklaw.com> wrote:
Debtor filed Chapter 7 in 2010 mainly to discharge liability incurred from a breached lease agreement. Trustee filed report of no distribution but landlord initiated a 727 action against the debtor and won at trial. Debtor then filed an appeal with the BAP but did not file a motion for stay pending appeal. Briefs have not been filed.
Meanwhile, Landlord resumed its state court action for damages. We recently filed a C13 to discharge the debt and stay the state court action. Landlord filed for relief fr stay but before adjudicating the mfrs our judge dismissed the case sua sponte and checked the box debtor with multiple cases pending that have not been dismissed.
So, Ive filed a motion to vacate dismissal to proceed with the C13. The hearing is set for later this week and I wanted to see if anyone has had a similar situation.
My argument is that there is no explicit prohibition in the code against multiple pending cases. Case law doesnt support a per se bar against multiple pending cases either. The analysis should instead be based on good faith and the single estate rule. After discussing debtors satisfaction of good faith, I also argue that the single estate rule is not violated because if property has not revested then its not possible for a single asset to simultaneously be included in two different bankruptcy estates. On the other hand, if property did revest because trustee filed report of no distribution in addition to the fact the deadline for objecting to exemptions has passed then there is no property left in C7 estate and it will all be part of the C13 estate. Also, the contingent on getting a discharge rule from In re Grimes doesnt solve the single estate problem because in that case the assets were not abandoned and the case was not closed so technically assets still part of C7 estate. So Im arguing that receiving a discharge in the C7 is not a necessary condition.
Am I missing something?Stephen Vokshori
Vokshori Law Group 1010 Wilshire Blvd. Ste. 1404
Los Angeles, CA 90017
main:(213) 986-4323
fax: (310) 881-6996
email: stephen@voklaw.com
web: www.VokLaw.com
The post was migrated from Yahoo.
Debtor filed Chapter 7 in 2010 mainly to discharge liability incurred from a
breached lease agreement. Trustee filed report of no distribution but
landlord initiated a 727 action against the debtor and won at trial. Debtor
then filed an appeal with the BAP but did not file a motion for stay pending
appeal. Briefs have not been filed.
Meanwhile, Landlord resumed its state court action for damages. We recently
filed a C13 to discharge the debt and stay the state court action. Landlord
filed for relief fr stay but before adjudicating the mfrs our judge
dismissed the case sua sponte and checked the box "debtor with multiple
cases pending that have not been dismissed."
So, I've filed a motion to vacate dismissal to proceed with the C13. The
hearing is set for later this week and I wanted to see if anyone has had a
similar situation.
My argument is that there is no explicit prohibition in the code against
multiple pending cases. Case law doesn't support a per se bar against
multiple pending cases either. The analysis should instead be based on good
faith and the single estate rule. After discussing debtor's satisfaction of
good faith, I also argue that the single estate rule is not violated because
if property has not revested then it's not possible for a single asset to
simultaneously be included in two different bankruptcy estates. On the other
hand, if property did revest because trustee filed report of no distribution
in addition to the fact the deadline for objecting to exemptions has passed
then there is no property left in C7 estate and it will all be part of the
C13 estate. Also, the contingent on getting a discharge rule from In re
Grimes doesn't solve the single estate problem because in that case the
assets were not abandoned and the case was not closed so technically assets
still part of C7 estate. So I'm arguing that receiving a discharge in the C7
is not a necessary condition.
Am I missing something?
Stephen Vokshori
Vokshori Law Group
1010 Wilshire Blvd. Ste. 1404
Los Angeles, CA 90017
main: (213) 986-4323
fax: (310) 881-6996
email: stephen@voklaw.com
web: www.VokLaw.com
The post was migrated from Yahoo.