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Rule 9027 removal - can I?
Michael, some of the actions were prepetition and some of them were
postpetition. That's why this is complicated.
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
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
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Sun, Oct 5, 2014 at 9:29 PM, Michael Avanesian michael@avanesianlaw.com
[cdcbaa] wrote:
>
>
> You don't need the case to be open to file for nondischargeability. Also,
> last time this issue came before Judge Bluebond, she said there is no
> controlling authority in this circuit on the matter and that there is no
> concurrent jurisdiction. She said bankruptcy court is the appropriate
> venue.
>
> You would be proving that 523(a)(4) has been satisfied. Once that has been
> shown, 523(a)(3)(B) is what would make it nondischargeable.
>
> I'm not really a litigator so I don't know if your situation can be
> completely decided by the bk Court. Your causes of action can be split into
> prepetition events that are covered by the bk and hence, 523(a)(4) and (3)
> are applicable to them and postpetition causes of action where 523 does not
> apply.
>
> How does a bankruptcy court have jurisdiction over a cause of action when
> the nucleus of operative facts occurred after the petition date of a
> Chapter 7 bankruptcy? Maybe I am looking at this wrong, but if a Debtor
> commits fraud the day after he files for Chapter 7 bankruptcy, I don't
> think I can sue him in bk court. One may even argue that there is a
> mandatory abstention requirement. Of course, if the other party does not
> move for remand, you can do anything you want?
>
> Sincerely,
> Michael Avanesian
>
> On Sun, Oct 5, 2014 at 7:56 PM, 'Steven B. Lever' sblever@leverlaw.com
> [cdcbaa] wrote:
>
>>
>>
>> Holly;
>>
>>
>>
>> If I recall, per Beezley you can just add a 523(a)(4) action in the state
>> court. Bankruptcy is an affirmative defense in a state court matter, and
>> apparently he hasnt brought it up, so I take it that the defendant is not
>> asserting a bankruptcy discharge.
>>
>>
>>
>> If you were to reopen the case (and he/she might not), the bankruptcy
>> judge would just give relief from stay and tell you to go try it in state
>> court, and then do an MSJ with the findings of fact and conclusions of law
>> from the state court. The bankruptcy judge will not conduct a trial if one
>> has been pending in state court and the bankruptcy case is closed.
>>
>>
>>
>> I know when the bankruptcy case is still open you do need to get a
>> bankruptcy court judgment of nondischargeability even if its litigated in
>> state court, but I dont think the bankruptcy court has exclusive
>> jurisdiction if the bankruptcy case is closed.
>>
>>
>>
>> Steve Lever
>>
>>
>>
>> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
>> *Sent:* Saturday, October 04, 2014 7:19 PM
>> *To:* Strictly Bankruptcy Issues; cdcbaa
>> *Subject:* [cdcbaa] Rule 9027 removal - can I?
>>
>>
>>
>>
>>
>> I need to reopen a defendant's BK to file a 523/727 action against him.
>> He received a discharge. Plaintiff was not listed and had no actual
>> knowledge of the BK.
>>
>>
>>
>> Plaintiff filed breach of fiduciary duty claim in state court (among
>> other claims). Then plaintiff discovered defendant's prior BK chapter
>> 7 which may have discharged this claim over a year ago. (But it's
>> complicated because some of the breach happened prepetition and some
>> happened postpetition.)
>>
>>
>>
>> If I reopen BK case and file 523(a)(4), can I remove the state court
>> action to the BK court under FRBP 9027 and incorporate it into my AP?
>>
>>
>>
>> These facts do not seem to fit neatly within that rule which seems to say
>> we would have had to removed it within 30 days after the complaint was
>> served. We are past that.
>>
>>
>>
>> It seems to me that we would have duplicate claims for breach of
>> fiduciary duty: one in state court and one in BK court. I want this in BK
>> court. Can someone provide some guidance as to whether I can still remove
>> the state court case to the BK forum if I reopen the BK case and file an
>> AP? (I think the court will allow the reopening of the BK case based on no
>> actual notice of the BK.) I don't think there would be a laches argument
>> since it's only been a little over a year since discharge.
>>
>>
>>
>> --
>>
>> Holly Roark
>>
>> Certified Bankruptcy Specialist*
>>
>> *and Sports Lawyer*
>>
>> holly@roarklawoffices.com **primary email address**
>>
>> 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
>>
>> *By State Bar of California Board of Legal Specialization
>>
>>
>>
>> **For a quicker response, email me at holly@roarklawoffices.com.
>>
>> I only use gmail for my listservs, and am likely to miss private emails
>>
>> directed to my gmail account.**
>>
>>
>>
>>
>>
>>
>
>
Michael, some of the actions were prepetition and some of them were postpetition. That's why this is complicated.Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
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
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.
You don't need the case to be open to file for nondischargeability. Also,
last time this issue came before Judge Bluebond, she said there is no
controlling authority in this circuit on the matter and that there is no
concurrent jurisdiction. She said bankruptcy court is the appropriate
venue.
You would be proving that 523(a)(4) has been satisfied. Once that has been
shown, 523(a)(3)(B) is what would make it nondischargeable.
I'm not really a litigator so I don't know if your situation can be
completely decided by the bk Court. Your causes of action can be split into
prepetition events that are covered by the bk and hence, 523(a)(4) and (3)
are applicable to them and postpetition causes of action where 523 does not
apply.
How does a bankruptcy court have jurisdiction over a cause of action when
the nucleus of operative facts occurred after the petition date of a
Chapter 7 bankruptcy? Maybe I am looking at this wrong, but if a Debtor
commits fraud the day after he files for Chapter 7 bankruptcy, I don't
think I can sue him in bk court. One may even argue that there is a
mandatory abstention requirement. Of course, if the other party does not
move for remand, you can do anything you want?
Sincerely,
Michael Avanesian
On Sun, Oct 5, 2014 at 7:56 PM, 'Steven B. Lever' sblever@leverlaw.com
[cdcbaa] wrote:
>
>
> Holly;
>
>
>
> If I recall, per Beezley you can just add a 523(a)(4) action in the state
> court. Bankruptcy is an affirmative defense in a state court matter, and
> apparently he hasnt brought it up, so I take it that the defendant is not
> asserting a bankruptcy discharge.
>
>
>
> If you were to reopen the case (and he/she might not), the bankruptcy
> judge would just give relief from stay and tell you to go try it in state
> court, and then do an MSJ with the findings of fact and conclusions of law
> from the state court. The bankruptcy judge will not conduct a trial if one
> has been pending in state court and the bankruptcy case is closed.
>
>
>
> I know when the bankruptcy case is still open you do need to get a
> bankruptcy court judgment of nondischargeability even if its litigated in
> state court, but I dont think the bankruptcy court has exclusive
> jurisdiction if the bankruptcy case is closed.
>
>
>
> Steve Lever
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Saturday, October 04, 2014 7:19 PM
> *To:* Strictly Bankruptcy Issues; cdcbaa
> *Subject:* [cdcbaa] Rule 9027 removal - can I?
>
>
>
>
>
> I need to reopen a defendant's BK to file a 523/727 action against him. He
> received a discharge. Plaintiff was not listed and had no actual knowledge
> of the BK.
>
>
>
> Plaintiff filed breach of fiduciary duty claim in state court (among other
> claims). Then plaintiff discovered defendant's prior BK chapter 7 which may
> have discharged this claim over a year ago. (But it's complicated because
> some of the breach happened prepetition and some happened postpetition.)
>
>
>
> If I reopen BK case and file 523(a)(4), can I remove the state court
> action to the BK court under FRBP 9027 and incorporate it into my AP?
>
>
>
> These facts do not seem to fit neatly within that rule which seems to say
> we would have had to removed it within 30 days after the complaint was
> served. We are past that.
>
>
>
> It seems to me that we would have duplicate claims for breach of fiduciary
> duty: one in state court and one in BK court. I want this in BK court. Can
> someone provide some guidance as to whether I can still remove the state
> court case to the BK forum if I reopen the BK case and file an AP? (I think
> the court will allow the reopening of the BK case based on no actual notice
> of the BK.) I don't think there would be a laches argument since it's only
> been a little over a year since discharge.
>
>
>
> --
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com **primary email address**
>
> 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
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
>
> I only use gmail for my listservs, and am likely to miss private emails
>
> directed to my gmail account.**
>
>
>
>
>
>
>
You don't need the case to be open to file for nondischargeability. Also, last time this issue came before Judge Bluebond, she said there is no controlling authority in this circuit on the matter and that there is no concurrent jurisdiction. She said bankruptcy court is the appropriate venue.You would be proving that 523(a)(4) has been satisfied. Once that has been shown, 523(a)(3)(B) is what would make it nondischargeable.I'm not really a litigator so I don't know if your situation can be completely decided by the bk Court. Your causes of action can be split into prepetition events that are covered by the bk and hence, 523(a)(4) and (3) are applicable to them and postpetition causes of action where 523 does not apply.How does a bankruptcy court have jurisdiction over a cause of action when the nucleus of operative facts occurred after the petition date of a Chapter 7 bankruptcy? Maybe I am looking at this wrong, but if a Debtor commits fraud the day after he files for Chapter 7 bankruptcy, I don't think I can sue him in bk court. One may even argue that there is a mandatory abstention requirement. Of course, if the other party does not move for remand, you can do anything you want?Sincerely, Michael Avanesian
The post was migrated from Yahoo.
I need to reopen a defendant's BK to file a 523/727 action against him. He
received a discharge. Plaintiff was not listed and had no actual knowledge
of the BK.
Plaintiff filed breach of fiduciary duty claim in state court (among other
claims). Then plaintiff discovered defendant's prior BK chapter 7 which may
have discharged this claim over a year ago. (But it's complicated because
some of the breach happened prepetition and some happened postpetition.)
If I reopen BK case and file 523(a)(4), can I remove the state court action
to the BK court under FRBP 9027 and incorporate it into my AP?
These facts do not seem to fit neatly within that rule which seems to say
we would have had to removed it within 30 days after the complaint was
served. We are past that.
It seems to me that we would have duplicate claims for breach of fiduciary
duty: one in state court and one in BK court. I want this in BK court. Can
someone provide some guidance as to whether I can still remove the state
court case to the BK forum if I reopen the BK case and file an AP? (I think
the court will allow the reopening of the BK case based on no actual notice
of the BK.) I don't think there would be a laches argument since it's only
been a little over a year since discharge.
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
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
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
I need to reopen a defendant's BK to file a 523/727 action against him. He received a discharge. Plaintiff was not listed and had no actual knowledge of the BK.Plaintiff filed breach of fiduciary duty claim in state court (among other claims). Then plaintiff discovered defendant'sprior BK chapter 7which may have discharged this claim over a year ago. (But it's complicated because some of the breach happened prepetition and some happened postpetition.)If I reopen BKcase and file 523(a)(4), can I remove the state court action to the BK court under FRBP 9027 and incorporate it into my AP?n that rule which seems to say we would have had to removed it within 30 days after the complaint was served. We are past that.It seems to me that we would have duplicate claims for breach of fiduciary duty: one in state court and one in BK court. I want this in BK court.Can someone provide some guidance as to whether I can still remove the state court case to the BK forum if I reopen theBK caseand file an AP? (I think the court will allow the reopening of the BK case based on no actual notice of the BK.) I don't think there would be a laches argument since it's only been a little over a year since discharge. RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
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
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.