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Burden of proof on the issue of date of breach of written contract
So I would say that the burden then remains on the debtor who is asserting the affirmative defense. I don't think the "proof of a negative" is a problem, since the debtor can testify that his last payment was made on "such and such" a date, and that no payments were made thereafter. Discovery if necessary from the creditor account will also show the last payment the creditor has booked. ,,,
>
> Once debtor presents some evidence(at least her declaration) supportingher 502(b)(1) motion, theburden isdetermined under nonbankruptcy law.
>
> Peter M. Lively, JD, MBA
> The Personal Financial Law Center
> A-Bankruptcy-Attorney.com
> Culver City (310) 391-2400
>
>
> ________________________________
> To: NACBA BK ; CDCBAA Listserv
> Sent: Monday, January 9, 2012 3:06 AM
> Subject: [cdcbaa] Burden of proof on the issue of date of breach of written contract
>
>
>
>
>
> In a motion objecting to a creditor's proof of claim, who has the burden of proof of the date of breach of a written contract?
>
> Is it the creditor because breach is an element of the cause of action?>
> Is it the creditor because, where the objecting party presents sufficientf a proofof claim, the presumption disappears, and the creditor has the burden of provingits claim.
>
> Is it the debtor because the party asserting a affirmative defense (here--statute of limitations) has the burden of proof for that defense.
>
> Is it the creditor because the limitation period runs from the breach, and debtor can never prove a negative (i.e. that no payment was made).>
> Has anyone encountered this issue?
>
> --
> Alik Segal
> Alik.Segal@...
> 310-362-6157
> California Central District
>
The post was migrated from Yahoo.
In a motion objecting to a creditor's proof of claim, who has the burden of
proof of the date of breach of a written contract?
Is it the creditor because breach is an element of the cause of action?
Is it the creditor because, where the objecting party presents
sufficient evidence to rebut the presumption of validity created by the
filing of a proof of claim, the presumption disappears, and the creditor
has the burden of proving its claim.
Is it the debtor because the party asserting a affirmative defense
(here--statute of limitations) has the burden of proof for that defense.
Is it the creditor because the limitation period runs from the breach, and
debtor can never prove a negative (i.e. that no payment was made).
Has anyone encountered this issue?
Alik Segal
Alik.Segal@gmail.com
310-362-6157
California Central District
In a motion objecting to a creditor's proof of claim, who has the burden of proof of the date of breach of a written contract? Is it the creditor because breach is an element of the cause of action?
Is it the creditor because, where the objecting party presents sufficientevidence to rebut the presumption of validity created by the filing of a proofof claim, the presumption disappears, and the creditor has the burden of provingits claim.
Is it the debtor because the party asserting a affirmative defense (here--statute of limitations) has the burden of proof for that defense. Is it the creditor because the limitation period runs from the breach, and debtor can never prove a negative (i.e. that no payment was made).
Has anyone encountered this issue?-- Alik SegalAlik.Segal@gmail.com310-362-6157California Central District
The post was migrated from Yahoo.