Central District Consumer Bankruptcy Attorney's Association

Please post the opinion.
Sent: Monday, September 20, 2004 8:42 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Late filing of 523 complaint
Jonathan Hayes writes:
>Dave is right. And I have been to the BAP over the interpretation
>of Rule 4007. A lawyer we all know filed a complaint 3 days late.
>He tried to argue that a pleading he filed earlier in the case was
>really the complaint and so this late filing should revert back.
>Even Greenwald said no way. The BAP agreed but one of the judges
>filed a concurring opinion saying he would have ruled the other way
>but the law is too clear. File it on time or the right is gone.
>Jon
>
>M. Jonathan Hayes
>jhayes@polarisnet.net
>21800 Oxnard St. Suite 840
>Woodland Hills, CA 91367
>(818) 710-3656
>(818) 710-3659
I have a contrary (unpublished) example. I represented a debtor in a
Chapter 7 case, filed just before commencement of a trial in state court on
litigation involving claims of fraud against the debtor.
The plaintiff in the case sought and obtained relief from stay. Before the
trial could re-commence in the state court, the time to file a 523
complaint expired. I asserted the discharge order as a bar to further
prosecution of the state court action.
The creditor filed his 523 complaint (late) and went back to Judge Robles
and sought "clarification" of the relief from stay order, claiming that his
motion for relief from stay should suffice as a complaint under 523. Judge
Robles denied the motion for "clarification."
On appeal, the BAP in an unpublished opinion held that the late-filed 523
complaint related back to the motion for relief from stay and was therefore
timely.
I will send a copy of the opinion to anyone who's interested. It could be
that the rather unique procedural context provided the BAP a way to justify
its decision, which clearly ignores the provisions of Rule 4007. It seemed
somewhat intellectually dishonest for the BAP to make this ruling and then
not publish it. I feel that they were concerned about making the "bright
line" of Rule 4007 not so bright (which is what I think of their analysis).
Silvio Nardoni
535 N. Brand Blvd. #501
Glendale, CA 91203
818-550-1800

The post was migrated from Yahoo.

Jonathan Hayes writes:
>Dave is right. And I have been to the BAP over the interpretation
>of Rule 4007. A lawyer we all know filed a complaint 3 days late.
>He tried to argue that a pleading he filed earlier in the case was
>really the complaint and so this late filing should revert back.
>Even Greenwald said no way. The BAP agreed but one of the judges
>filed a concurring opinion saying he would have ruled the other way
>but the law is too clear. File it on time or the right is gone.
>Jon
>
>M. Jonathan Hayes
>jhayes@polarisnet.net
>21800 Oxnard St. Suite 840
>Woodland Hills, CA 91367
>(818) 710-3656
>(818) 710-3659
I have a contrary (unpublished) example. I represented a debtor in a
Chapter 7 case, filed just before commencement of a trial in state court on
litigation involving claims of fraud against the debtor.
The plaintiff in the case sought and obtained relief from stay. Before the
trial could re-commence in the state court, the time to file a 523
complaint expired. I asserted the discharge order as a bar to further
prosecution of the state court action.
The creditor filed his 523 complaint (late) and went back to Judge Robles
and sought "clarification" of the relief from stay order, claiming that his
motion for relief from stay should suffice as a complaint under 523. Judge
Robles denied the motion for "clarification."
On appeal, the BAP in an unpublished opinion held that the late-filed 523
complaint related back to the motion for relief from stay and was therefore
timely.
I will send a copy of the opinion to anyone who's interested. It could be
that the rather unique procedural context provided the BAP a way to justify
its decision, which clearly ignores the provisions of Rule 4007. It seemed
somewhat intellectually dishonest for the BAP to make this ruling and then
not publish it. I feel that they were concerned about making the "bright
line" of Rule 4007 not so bright (which is what I think of their analysis).
Silvio Nardoni
535 N. Brand Blvd. #501
Glendale, CA 91203
818-550-1800

The post was migrated from Yahoo.