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Burden of proof on the issue of date of breach of written=
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
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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
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@gmail.com
310-362-6157
California Central District
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