Burden of proof on the issue of date of breach of written contract
Posted: Mon Jan 09, 2012 8:33 pm
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. ,,,
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> Once debtor presents some evidence(at least her declaration) supportingher 502(b)(1) motion, theburden isdetermined under nonbankruptcy law.
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> Peter M. Lively, JD, MBA
> The Personal Financial Law Center
> A-Bankruptcy-Attorney.com
> Culver City (310) 391-2400
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> ________________________________
> 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
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> 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?
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> 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.
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> Is it the debtor because the party asserting a affirmative defense (here--statute of limitations) has the burden of proof for that defense.
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> 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?
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> --
> Alik Segal
> Alik.Segal@...
> 310-362-6157
> California Central District
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