Is a declaratory relief action for life estate
Posted: Mon Jan 14, 2013 5:14 pm
my gut tells me that Plaintiff will have to re-open the C7 to determine his
rights to the Debtor's real property.
your case research should probably start with Johnson v Home State Bank, in
which the Supreme Court (Justice Thurgood Marshall even) discusses how an
In Rem claim survives a C7 discharge... Home State Bank is about
mortgages, but the logic should apply to your argument...
On Mon, Jan 14, 2013 at 3:16 PM, Holly Roark wrote:
> **
>
>
> Plaintiff sued debtor for a declaratory judgment that he has a life estate
> with respect to certain real property the Debtor owns. Debtor filed Chapter
> 7 and received a discharge. Plaintiff never filed an adversary action to
> determine dischargeability. Debtor wants to evict Plaintiff from the
> property. Plaintiff wants to proceed with his dec relief action. Debtor
> contends Plaintiff is barred by discharge injunction on the dec relief
> action. Plaintiff's claim appears to be against the property (in rem) -
> to determine that he has a life estate, and not against the debtor
> personally, so my thought is that Plaintiff should be able to proceed with
> his action although it arose prepetition. My case research so far has not
> yielded any case directly on point.
>
> (Additional facts: Plaintiff does not have a recorded document for the
> life estate. Unfortunately the agreement was oral, but Plaintiff fully
> performed Plaintiff's side of the deal, which is an exception to the
> statute of frauds.)
> Any guidance is appreciated.
>
> Holly Roark
> holly@roarklawoffices.com
> www.roarklawoffices.com
> Central District of California
> Consumer Bankruptcy Attorney
> 1875 Century Park East, Suite 600
> Los Angeles, CA 90067
> T (310) 553-2600
> F (310) 553-2601
>
>
>
my gut tells me that Plaintiff will have to re-open the C7 to determine his rights to the Debtor's real property.your case research should probably start with Johnson v Home State Bank, in which the Supreme Court (Justice Thurgood Marshall even) discusses how an In Rem claim survives a C7 discharge... Home State Bank is about mortgages, but the logic should apply to your argument...
On Mon, Jan 14, 2013 at 3:16 PM, Holly Roark <hollyroark22@gmail.com> wrote:
Plaintiff sued debtor for a declaratory judgment that he has a life estate with respect to certain real property the Debtor owns. Debtor filed Chapter 7 and received a discharge.Plaintiff never filed an adversary action to determine dischargeability. Debtor wants to evict Plaintiff from the property. Plaintiff wants to proceed with his dec relief action. Debtor contends Plaintiff is barred by discharge injunction on the dec relief action. Plaintiff's claim appears to beagainst the property (in rem) - to determine that he has a life estate, and not againstthe debtor personally, so my thought is that Plaintiff should be able to proceed with his action although it arose prepetition. My case research so far has not yielded any case directly on point.
(Additional facts: Plaintiff does not have a recorded document for the life estate. Unfortunately the agreement was oral, but Plaintiff fully performed Plaintiff's side of the deal, which is an exception to the statute of frauds.)
Any guidance is appreciated.
The post was migrated from Yahoo.