Rule 9027 removal - can I?
Posted: Mon Oct 06, 2014 9:40 am
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
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