JTF Rose, Inc. v. Esquerra

Citation:
BAP No. CC-17-1356-TaLLs (9th Circuit, Aug 07,2018) Not Published
Case Status:
Reversed and Remanded
Ruling:
BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of...
Judge(s):
Taylor, Lafferty, Lastreto
Tag(s):

Stein v. Stubbs (In re Stubbs)

Citation:
File Name: 17b0003p.06; Case Nos. 16-8025/8027 (6th Circuit, Mar 09,2017) Published
Case Status:
Reversed and Remanded
Ruling:
Sixth Circuit Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's orders denying the Chapter 7 Trustee's motion for default judgment, dismissing the adversary proceeding and vacating...
Judge(s):
Humphrey, Opperman and Preston, Bankruptcy Appellate Panel Judges
Tag(s):

Vaughan v. Weinstein (In re Vaughan)

Citation:
BAP No. NV-15-1254-JuKiD (BAP 9th Cir. Feb. 29, 2016) (unpublished)
Ruling:
The BAP for the 9th Circuit affirmed summary judgment entered by the bankruptcy court (D. Nev.) revoking the discharge of a chapter 7 debtor for failing to appear at a 2004 exam. The BAP agreed...
Judge(s):
Jury, Kirscher, Dunn
Tag(s):

Lynch v. Malloy, III (In re Lynch)

Citation:
Lynch v. Malloy, III, (In re Lynch), Case No. 15-054 (BAP 10th Cir. January 20, 2016). Published.
Ruling:
The BAP has jurisdiction to hear appeals from an order entered in bankruptcy courts if the order finally disposes of discrete disputes within the larger case.
Judge(s):
Karlin, Jacobvitz, Mosier
Tag(s):

Dymon Investments, Inc. v. Welch (In re Welch)

Citation:
Dymon Investments, Inc. v. Welch (In re Welch), BAP No. NV-14-1079-HlPaJu (Jan. 5, 2015)
Ruling:
AFFIRMING the decision below, the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion when it denied creditors' motion to reopen a closed...
Judge(s):
HOULE, PAPPAS, and JURY, Bankruptcy Judges
Tag(s):

Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP)

Citation:
Hope 7 Monroe Street LP, U.S. Court of Appeals D.C. Cir., No. 12-7054 [February 28, 2014]
Ruling:
The Court of Appeals for the District of Columbia, held that the district court did not err in affirming the bankruptcy courts rulings. The district court's decision affirmed the ruling by the...
Judge(s):
Ginsburg, Henderson and Brown
Tag(s):

Hazelrigg v. United States Trustee (In re Hazelrigg)

Citation:
In re Hazelrigg, 9th Cir. B.A.P., WW-13-1230-TaDJu (November 19, 2013) [NOT FOR PUBLICATION]
Ruling:
in an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court, to deny the debtor's (Thomas Hazelrigg) motion for reconsideration of the...
Judge(s):
Hon. Randall L. Dunn, Hon. Laura S. Taylor, Hon. Meredith A. Jury
Tag(s):

Simon v. FIA Card Services, N.A.

Citation:
Simon v. FIA Card Services, N.A., No. 12-3293, 2013 WL 5508868 (3d Cir. Oct. 7, 2013)
Ruling:
Affirming in part and reversing in part the dismissal of the Debtors’ claims under the Fair Debt Collection Practices Act (the “FDCPA”) and remanding the case back to the United States...
Judge(s):
The Honorable Lee H. Rosenthal, the United States District Court for the Southern District of Texas, sitting by designation
Tag(s):

La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius)

Citation:
No. 11-51167, Pursuant to 5TH CIR. R. 47.5, not for publication.
Ruling:
DISMISSED the appeal for lack of jurisdiction, concluding that bankruptcy court's discovery order was interlocutory, and the district court's order (dismissing the appeal from the bankruptcy court)...
Judge(s):
WIENER, CLEMENT, and PRADO
Tag(s):

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Esquerra [href] => node/4018 [html] => 1 [attributes] => Array ( [rel] => tag [title] => JTF Rose, Inc. v. Esquerra ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 9798 [uid] => 209327 [title] => JTF Rose, Inc. v. Esquerra [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 4018 [type] => circuit_court_opinion [language] => en [created] => 1533763458 [changed] => 1534184101 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1534184101 [revision_uid] => 0 [field_citation] => Array ( ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of sufficient findings to support denial prevented BAP from determining if error was harmless. Bankruptcy court's prior denial of motions to dismiss on procedural grounds did not warrant application of issue preclusion to third motion. Bankruptcy court failed to make sufficient findings that denial of prior motions was on the merits. Debtor failed to raise issue preclusion based on confirmed chapter 13 plan. [format] => [safe_value] => BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of sufficient findings to support denial prevented BAP from determining if error was harmless. Bankruptcy court's prior denial of motions to dismiss on procedural grounds did not warrant application of issue preclusion to third motion. Bankruptcy court failed to make sufficient findings that denial of prior motions was on the merits. Debtor failed to raise issue preclusion based on confirmed chapter 13 plan. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Bankruptcy court (CD Cal.) denied creditor's motion to dismiss chapter 13 bankruptcy case; creditor appealed to BAP for 9th Circuit. [format] => [safe_value] => Bankruptcy court (CD Cal.) denied creditor's motion to dismiss chapter 13 bankruptcy case; creditor appealed to BAP for 9th Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Repeat filer filed third bankruptcy that debtor converted to chapter 13 from chapter 7 after trustee issued no distribution report. Bankruptcy court confirmed debtor's plan that included avoidance of junior secured creditor's lien and treatment as general unsecured claim. Two months later, debtor and creditor stipulated that creditor's lien would be avoided and treated as unsecured claim contingent on debtor's completion of his chapter 13 plan and receipt of a discharge. Creditor then changed its mind, asserted debtor's bad faith, and filed motion to dismiss. Bankruptcy court denied motion for lack of property service. Creditor took R. 2004 exam of debtor and re-filed motion to dismiss, asserting debtor failed to disclose assets, improperly attaching R. 2004 transcript with motion, in violation of local rule. Court denied motion for improper service and improper attachment of R. 2004 transcript. Creditor re-filed motion and debtor objected. [format] => [safe_value] => Repeat filer filed third bankruptcy that debtor converted to chapter 13 from chapter 7 after trustee issued no distribution report. Bankruptcy court confirmed debtor's plan that included avoidance of junior secured creditor's lien and treatment as general unsecured claim. Two months later, debtor and creditor stipulated that creditor's lien would be avoided and treated as unsecured claim contingent on debtor's completion of his chapter 13 plan and receipt of a discharge. Creditor then changed its mind, asserted debtor's bad faith, and filed motion to dismiss. Bankruptcy court denied motion for lack of property service. Creditor took R. 2004 exam of debtor and re-filed motion to dismiss, asserting debtor failed to disclose assets, improperly attaching R. 2004 transcript with motion, in violation of local rule. Court denied motion for improper service and improper attachment of R. 2004 transcript. 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Stubbs (In re Stubbs) [href] => node/3458 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Stein v. Stubbs (In re Stubbs) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 9238 [uid] => 101224 [title] => Stein v. Stubbs (In re Stubbs) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 3458 [type] => circuit_court_opinion [language] => en [created] => 1489097745 [changed] => 1489177801 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1489177801 [revision_uid] => 0 [field_citation] => Array ( ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => Sixth Circuit Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's orders denying the Chapter 7 Trustee's motion for default judgment, dismissing the adversary proceeding and vacating the Rule 2004 examination order. Debtor failed to provide Trustee her tax return for the year of filing. After continuing the 341 meeting several times, Trustee obtained the Rule 2004 order for the Debtor to appear and provide the return or testify why she did not filed the return. Debtor failed to appear and Trustee filed an adversary proceeding to revoke the discharge. [format] => [safe_value] => Sixth Circuit Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's orders denying the Chapter 7 Trustee's motion for default judgment, dismissing the adversary proceeding and vacating the Rule 2004 examination order. Debtor failed to provide Trustee her tax return for the year of filing. After continuing the 341 meeting several times, Trustee obtained the Rule 2004 order for the Debtor to appear and provide the return or testify why she did not filed the return. Debtor failed to appear and Trustee filed an adversary proceeding to revoke the discharge. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Pro se debtor filed Chapter 7 bankruptcy. Trustee completed the 341 meeting in Feb. 2015 and told debtor to provide the tax return due April, 2015 to the Trustee and not spend any refund. Discharge issued n April 29, 2015. When debtor failed to appear at the Rule 2004 exam, he filed the adversary to revoke the discharge under Sections 727 (d)(2) and (3). Debtor did not respond and clerk entered a default order under Section 727 (d)(3). Court ordered a hearing on Trustee's motion for default judgment. Court thought Trustee should not have completed the 341 meeting which would have presented the discharge from issuing. Court thought Chapter 7 case should be dismissed. Trustee thought there were assets to be distributed through refund due on return. 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Trustee thought there were assets to be distributed through refund due on return. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Although the adversary proceeding was filed six months after discharge was issued, the Court believed the Trustee waited too long. section 727 (e)(2) allows revocation of discharge to be filed within one year so Trustee was clearly within his rights to file within six months. Court issued show cause order where debtor failed to appear. Civil contempt is not the only way to handle the debtor's failure to file the tax return. The Trustee was proceeding correctly. [format] => [safe_value] => Although the adversary proceeding was filed six months after discharge was issued, the Court believed the Trustee waited too long. section 727 (e)(2) allows revocation of discharge to be filed within one year so Trustee was clearly within his rights to file within six months. Court issued show cause order where debtor failed to appear. Civil contempt is not the only way to handle the debtor's failure to file the tax return. The Trustee was proceeding correctly. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 9126 [uid] => 513416 [filename] => 0309_6.pdf [uri] => s3://0309_6.pdf [filemime] => application/pdf [filesize] => 106929 [status] => 1 [timestamp] => 1489097745 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Humphrey, Opperman and Preston, Bankruptcy Appellate Panel Judges [format] => [safe_value] => Humphrey, Opperman and Preston, Bankruptcy Appellate Panel Judges ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 898 ) [1] => Array ( [tid] => 901 ) [2] => Array ( [tid] => 910 ) [3] => Array ( [tid] => 916 ) [4] => Array ( [tid] => 918 ) [5] => Array ( [tid] => 925 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1368 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2017-03-10 15:30:02 [timezone] => America/New_York [timezone_db] => UTC [date_type] => datetime ) ) ) [field_case_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2017-03-09 00:00:00 [timezone] => America/New_York [timezone_db] => America/New_York [date_type] => datetime ) ) ) [field_case_number] => Array ( [und] => Array ( [0] => Array ( [value] => File Name: 17b0003p.06; Case Nos. 16-8025/8027 [format] => [safe_value] => File Name: 17b0003p.06; Case Nos. 16-8025/8027 ) ) ) [field_publication] => Array ( [und] => Array ( [0] => Array ( [tid] => 2147 ) ) ) [field_case_type] => Array ( [und] => Array ( [0] => Array ( [tid] => 2151 ) ) ) [field_case_status] => Array ( [und] => Array ( [0] => Array ( [tid] => 2156 ) ) ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 3458 ) ) ) [#weight] => 1 ) [2186] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Vaughan v. Weinstein (In re Vaughan) [href] => node/2186 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Vaughan v. Weinstein (In re Vaughan) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7966 [uid] => 209327 [title] => Vaughan v. Weinstein (In re Vaughan) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 2186 [type] => circuit_court_opinion [language] => en [created] => 1457993164 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => BAP No. NV-15-1254-JuKiD (BAP 9th Cir. Feb. 29, 2016) (unpublished) [format] => [safe_value] => BAP No. NV-15-1254-JuKiD (BAP 9th Cir. Feb. 29, 2016) (unpublished) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The BAP for the 9th Circuit affirmed summary judgment entered by the bankruptcy court (D. Nev.) revoking the discharge of a chapter 7 debtor for failing to appear at a 2004 exam. The BAP agreed that following the debtor's failure to appear at a 2004 exam, the bankruptcy court's entry of an order compelling the debtor's appearance contained implicit factual findings that satisfied the elements for revocation of the debtor's discharge under 11 USC 727, and that consequently, summary judgment was proper under law of the case doctrine. The debtors' failure to appear at the initial 2004 exam was sufficient to satisfy the elements of 11 USC 727 because it was undisputed that the debtors were aware of the order and willfully or intentionally failed to obey the order. [format] => [safe_value] => The BAP for the 9th Circuit affirmed summary judgment entered by the bankruptcy court (D. Nev.) revoking the discharge of a chapter 7 debtor for failing to appear at a 2004 exam. The BAP agreed that following the debtor's failure to appear at a 2004 exam, the bankruptcy court's entry of an order compelling the debtor's appearance contained implicit factual findings that satisfied the elements for revocation of the debtor's discharge under 11 USC 727, and that consequently, summary judgment was proper under law of the case doctrine. The debtors' failure to appear at the initial 2004 exam was sufficient to satisfy the elements of 11 USC 727 because it was undisputed that the debtors were aware of the order and willfully or intentionally failed to obey the order. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Chapter 7 trustee obtained order directing debtors to appear at 2004 exam, but debtors failed to appear. Chapter 7 trustee commenced revocation of discharge adversary, then filed motion for summary judgment after bankruptcy court issued order compelling debtor to attend 2004 exam. Bankruptcy court granted motion for summary judgment revoking discharge. Debtors appealed to BAP for 9th Circuit. [format] => [safe_value] => Chapter 7 trustee obtained order directing debtors to appear at 2004 exam, but debtors failed to appear. Chapter 7 trustee commenced revocation of discharge adversary, then filed motion for summary judgment after bankruptcy court issued order compelling debtor to attend 2004 exam. Bankruptcy court granted motion for summary judgment revoking discharge. Debtors appealed to BAP for 9th Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => After co-chapter 7 debtors obtained their discharge, the chapter 7 trustee discovered that they had failed to disclose potential assets and creditors, including disputed interests in the trademark "World Chess Federation Hall of Fame," and claims related to dispute with the World Chess Museum, Inc. The debtors had sought to transfer The trustee sought and obtained, over debtors' opposition, an order authorizing her to schedule Rule 2004 exams for both debtors. The trustee served notice of the exams on the debtors, but the debtors failed to appear. Debtors filed numerous motions in an attempt to prevent or stay the examinations, demonstrating their awareness of the scheduled date. Trustee filed an adversary complaint seeking to revoke debtors' discharge under 727(d)(1)(discharge obtained by fraud) and (d)(3) refusal to obey a lawful order of the court). Debtors failed to appear for the scheduled R. 2004 exam. Debtors filed a motion to compel debtors' attendance, which the bankruptcy court granted finding that debtors evaded the R. 2004 exam. The trustee moved for partial summary judgment on the 727(d)(3) claim based on debtors' failure to obey the original R. 2004 order. The bankruptcy court granted the motion, finding there were no genuine issues of disputed fact regarding debtors' awareness of the R. 2004 order, and their willful and intentional refusal to obey it. [format] => [safe_value] => After co-chapter 7 debtors obtained their discharge, the chapter 7 trustee discovered that they had failed to disclose potential assets and creditors, including disputed interests in the trademark "World Chess Federation Hall of Fame," and claims related to dispute with the World Chess Museum, Inc. The debtors had sought to transfer The trustee sought and obtained, over debtors' opposition, an order authorizing her to schedule Rule 2004 exams for both debtors. The trustee served notice of the exams on the debtors, but the debtors failed to appear. Debtors filed numerous motions in an attempt to prevent or stay the examinations, demonstrating their awareness of the scheduled date. Trustee filed an adversary complaint seeking to revoke debtors' discharge under 727(d)(1)(discharge obtained by fraud) and (d)(3) refusal to obey a lawful order of the court). Debtors failed to appear for the scheduled R. 2004 exam. Debtors filed a motion to compel debtors' attendance, which the bankruptcy court granted finding that debtors evaded the R. 2004 exam. The trustee moved for partial summary judgment on the 727(d)(3) claim based on debtors' failure to obey the original R. 2004 order. The bankruptcy court granted the motion, finding there were no genuine issues of disputed fact regarding debtors' awareness of the R. 2004 order, and their willful and intentional refusal to obey it. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7864 [uid] => 1 [filename] => vaughan-v-weinstein-in-re-vaughan.pdf [uri] => s3://opinion_pdf/vaughan-v-weinstein-in-re-vaughan.pdf [filemime] => application/pdf [filesize] => 104106 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Jury, Kirscher, Dunn [format] => [safe_value] => Jury, Kirscher, Dunn ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 918 ) [1] => Array ( [tid] => 898 ) [2] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1638 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 2186 ) ) ) [#weight] => 2 ) [2112] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Lynch v. Malloy, III (In re Lynch) [href] => node/2112 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Lynch v. Malloy, III (In re Lynch) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7892 [uid] => 197835 [title] => Lynch v. Malloy, III (In re Lynch) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 2112 [type] => circuit_court_opinion [language] => en [created] => 1453414684 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Lynch v. Malloy, III, (In re Lynch), Case No. 15-054 (BAP 10th Cir. January 20, 2016). Published. [format] => [safe_value] => Lynch v. Malloy, III, (In re Lynch), Case No. 15-054 (BAP 10th Cir. January 20, 2016). Published. ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The BAP has jurisdiction to hear appeals from an order entered in bankruptcy courts if the order finally disposes of discrete disputes within the larger case. [format] => [safe_value] => The BAP has jurisdiction to hear appeals from an order entered in bankruptcy courts if the order finally disposes of discrete disputes within the larger case. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The 10th Circuit BAP held that while an order for a Rule 2004 examination can be a discrete dispute that sufficiently concludes a proceeding and thus, final for appeal purposes, the order denying appellant’s motion to reconsider an order authorizing the trustee to examine the appellant pursuant to Rule 2004 was not a final order. Since appellant had not asked for leave to file an interlocutory appeal, the BAP dismissed the appeal noting that it would have declined leave to appeal in any event. [format] => [safe_value] => The 10th Circuit BAP held that while an order for a Rule 2004 examination can be a discrete dispute that sufficiently concludes a proceeding and thus, final for appeal purposes, the order denying appellant’s motion to reconsider an order authorizing the trustee to examine the appellant pursuant to Rule 2004 was not a final order. Since appellant had not asked for leave to file an interlocutory appeal, the BAP dismissed the appeal noting that it would have declined leave to appeal in any event. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Appellant and his wife filed chapter 11 and their case was converted to chapter 7. Subsequently, appellant brought an adversary proceeding against the trustee and the bankruptcy court judge. The adversary proceeding was dismissed which is on appeal. The bankruptcy court granted trustee’s motion to take appellant’s Rule 2004 examination to investigate how appellant was funding the adversary proceeding. Appellant’s efforts to avoid the examination failed and eventually, trustee filed a renewed motion to take appellant’s examination and a motion to compel appellant to answer Rule 2004 exam questions both of which were granted. Appellant filed a motion to reconsider which the bankruptcy court denied. [format] => [safe_value] => Appellant and his wife filed chapter 11 and their case was converted to chapter 7. Subsequently, appellant brought an adversary proceeding against the trustee and the bankruptcy court judge. The adversary proceeding was dismissed which is on appeal. The bankruptcy court granted trustee’s motion to take appellant’s Rule 2004 examination to investigate how appellant was funding the adversary proceeding. Appellant’s efforts to avoid the examination failed and eventually, trustee filed a renewed motion to take appellant’s examination and a motion to compel appellant to answer Rule 2004 exam questions both of which were granted. Appellant filed a motion to reconsider which the bankruptcy court denied. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7790 [uid] => 1 [filename] => lynch-v-malloy-iii-in-re-lynch.pdf [uri] => s3://opinion_pdf/lynch-v-malloy-iii-in-re-lynch.pdf [filemime] => application/pdf [filesize] => 33688 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Karlin, Jacobvitz, Mosier [format] => [safe_value] => Karlin, Jacobvitz, Mosier ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 910 ) [1] => Array ( [tid] => 914 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1425 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 2112 ) ) ) [#weight] => 3 ) [1330] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Dymon Investments, Inc. v. Welch (In re Welch) [href] => node/1330 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Dymon Investments, Inc. v. Welch (In re Welch) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7110 [uid] => 552865 [title] => Dymon Investments, Inc. v. Welch (In re Welch) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 1330 [type] => circuit_court_opinion [language] => en [created] => 1420577421 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Dymon Investments, Inc. v. Welch (In re Welch), BAP No. NV-14-1079-HlPaJu (Jan. 5, 2015) [format] => [safe_value] => Dymon Investments, Inc. v. Welch (In re Welch), BAP No. NV-14-1079-HlPaJu (Jan. 5, 2015) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => AFFIRMING the decision below, the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion when it denied creditors' motion to reopen a closed chapter 7 case in order to conduct an examination under Federal Rule of Bankruptcy Procedure 2004. While there is no specified time period under section 350 of the Bankruptcy Code within which a motion to reopen must be filed, such a request must be made within a reasonable time, and what constitutes reasonableness is determined based on the totality of the circumstances. The longer a party waits to file a motion to reopen a closed bankruptcy case, the more compelling the reason to reopen must be. There was also nothing in the record to establish prima facie proof that the case was not fully administered, and reopening the case would have caused meaningful prejudice to debtors. [format] => [safe_value] => AFFIRMING the decision below, the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion when it denied creditors' motion to reopen a closed chapter 7 case in order to conduct an examination under Federal Rule of Bankruptcy Procedure 2004. While there is no specified time period under section 350 of the Bankruptcy Code within which a motion to reopen must be filed, such a request must be made within a reasonable time, and what constitutes reasonableness is determined based on the totality of the circumstances. The longer a party waits to file a motion to reopen a closed bankruptcy case, the more compelling the reason to reopen must be. There was also nothing in the record to establish prima facie proof that the case was not fully administered, and reopening the case would have caused meaningful prejudice to debtors. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Creditors moved to reopen debtors' closed chapter 7 case. The bankruptcy court denied the motion. This appeal ensued. [format] => [safe_value] => Creditors moved to reopen debtors' closed chapter 7 case. The bankruptcy court denied the motion. This appeal ensued. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => A complaint was filed in state court against Welch and others, asserting various causes of action, including fraud and breach of fiduciary duty based on defendants' alleged failure to contribute funds to certain companies, and for otherwise interfering with plaintiffs' efforts to refinance and sell certain real property owned by the companies. Debtors filed for chapter 7 relief on the eve of trial in that action. Two months after the case was closed, creditors filed a motion in the bankruptcy case for an order requiring debtors to appear for an examination under Rule 2004. Over five months later, creditors filed a motion to reopen the chapter 7 case. The record provided no explanation for the delay. In their motion to reopen, creditors alleged that there was cause to reopen the case to allow creditors to examine debtors under oath as to allegedly concealed assets that would be subject to liquidation and distribution to debtors' creditors. The bankruptcy court, finding that creditors had delayed in filing the motion to reopen and did not exercise other remedies, found lack of good cause to reopen the case and denied the motion. [format] => [safe_value] => A complaint was filed in state court against Welch and others, asserting various causes of action, including fraud and breach of fiduciary duty based on defendants' alleged failure to contribute funds to certain companies, and for otherwise interfering with plaintiffs' efforts to refinance and sell certain real property owned by the companies. Debtors filed for chapter 7 relief on the eve of trial in that action. Two months after the case was closed, creditors filed a motion in the bankruptcy case for an order requiring debtors to appear for an examination under Rule 2004. Over five months later, creditors filed a motion to reopen the chapter 7 case. The record provided no explanation for the delay. In their motion to reopen, creditors alleged that there was cause to reopen the case to allow creditors to examine debtors under oath as to allegedly concealed assets that would be subject to liquidation and distribution to debtors' creditors. The bankruptcy court, finding that creditors had delayed in filing the motion to reopen and did not exercise other remedies, found lack of good cause to reopen the case and denied the motion. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7009 [uid] => 1 [filename] => dymon-investments-inc-v-welch-in-re-welch.pdf [uri] => s3://opinion_pdf/dymon-investments-inc-v-welch-in-re-welch.pdf [filemime] => application/pdf [filesize] => 89494 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => HOULE, PAPPAS, and JURY, Bankruptcy Judges [format] => [safe_value] => HOULE, PAPPAS, and JURY, Bankruptcy Judges ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 901 ) [1] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1578 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 1959 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 1330 ) ) ) [#weight] => 4 ) [713] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) [href] => node/713 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6493 [uid] => 573590 [title] => Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 713 [type] => circuit_court_opinion [language] => en [created] => 1393626309 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 Monroe Street LP, U.S. Court of Appeals D.C. Cir., No. 12-7054 [February 28, 2014] [format] => [safe_value] => Hope 7 Monroe Street LP, U.S. Court of Appeals D.C. Cir., No. 12-7054 [February 28, 2014] ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The Court of Appeals for the District of Columbia, held that the district court did not err in affirming the bankruptcy courts rulings. The district court's decision affirmed the ruling by the bankruptcy court to deny, appellants, Hope 7's motion to vacate all orders rendered in favor of RIASO, which were (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. /p/ The specific issue on appeal was whether appellant, Hope 7, had the standing to appeal these issues and whether the U.S. Court of Appeals has the jurisdiction to decide this case. The U.S. Court of Appeals held that they did have jurisdiction to decide all issue in the case and the supplemental briefing by appellant, Hope 7, did establish that they had standing to consider the appeal with regards to the order allowing RIASO's proof of claim and the order requiring proceeds from the sale of the estate to be paid to RIASO. However, their briefing failed to demonstrate that appellant had standing to appeal the courts ruling granting the motion to settle appellant's claims against RIASO. As the appellants did not have standing to challenge the courts order settling their claim against RIASO, the Court of Appeals dismissed this portion of the action and affirmed the district courts ruling on the remaining claims. [format] => [safe_value] => The Court of Appeals for the District of Columbia, held that the district court did not err in affirming the bankruptcy courts rulings. The district court's decision affirmed the ruling by the bankruptcy court to deny, appellants, Hope 7's motion to vacate all orders rendered in favor of RIASO, which were (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. /p/ The specific issue on appeal was whether appellant, Hope 7, had the standing to appeal these issues and whether the U.S. Court of Appeals has the jurisdiction to decide this case. The U.S. Court of Appeals held that they did have jurisdiction to decide all issue in the case and the supplemental briefing by appellant, Hope 7, did establish that they had standing to consider the appeal with regards to the order allowing RIASO's proof of claim and the order requiring proceeds from the sale of the estate to be paid to RIASO. However, their briefing failed to demonstrate that appellant had standing to appeal the courts ruling granting the motion to settle appellant's claims against RIASO. As the appellants did not have standing to challenge the courts order settling their claim against RIASO, the Court of Appeals dismissed this portion of the action and affirmed the district courts ruling on the remaining claims. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 petitioned the bankruptcy court pursuant to FRBP 9024 to vacate all orders rendered in favor of RIASO, which referred to (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. The bankruptcy court denied the motion. Hope 7 appealed to the district court, which affirmed the bankruptcy court’s decision on May 3, 2012. Hope 7 timely appealed to this court. [format] => [safe_value] => Hope 7 petitioned the bankruptcy court pursuant to FRBP 9024 to vacate all orders rendered in favor of RIASO, which referred to (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. The bankruptcy court denied the motion. Hope 7 appealed to the district court, which affirmed the bankruptcy court’s decision on May 3, 2012. Hope 7 timely appealed to this court. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 owned apartment units appraised for approximately $3.3 million that it wanted to convert to condominiums. The partnership asked Musse Leakemariam to help it obtain funds for the conversion. Leakemariam arranged for RIASO to lend $1.6 million to Hope 7 to refinance the partnership’s mortgage and serve as a bridge loan until a permanent construction loan could be arranged. The permanent financing never materialized, and Hope 7 was unable to repay the bridge loan to RIASO. After RIASO initiated foreclosure proceedings, Hope 7 filed a voluntary petition for Chapter 11 bankruptcy on April 2, 2009. The bankruptcy court converted the case to a Chapter 7 action and appointed a trustee. During a bankruptcy hearing in August 2009, Hope 7 learned Leakemariam was both the loan broker and the lender. In re Hope 7 Monroe St. Ltd. P’ship (Hope 7), No. 09-00273, 2011 WL 2619537, at *1, *7 (Bankr. D.D.C. July 1, 2011). Leakemariam had formed RIASO, made up of ten trusts benefitting Leakemariam’s family members, about a week before the bridge loan was made. RIASO’s only purpose was to make that loan. On November 6, 2009, Hope 7, along with Lenan and Pauline Cappel, its sole limited partners, filed a complaint against Leakemariam, RIASO, and Richard Boddie, RIASO’s attorney, in D.C. Superior Court. The plaintiffs alleged, inter alia, breach of fiduciary duty, fraud, and misrepresentation. /p/ RIASO filed a proof of claim in the bankruptcy court claiming Hope 7 owed it about $3 million. Hope 7 objected, arguing, among other grounds, RIASO and Leakemariam had engaged in fraudulent inducement to contract and had breached their fiduciary duty. The bankruptcy court overruled Hope 7’s objection and ordered the claim paid from the debtor’s estate. The trustee proposed to sell the estate’s interest in the Superior Court action to Boddie as a compromise of the claims, and the bankruptcy court approved the sale of the claims to Boddie for $30,000. On November 22, 2010, the court directed final distribution of the estate’s funds. On April 12, 2011, Hope 7 filed a motion pursuant to Federal Rule of Civil Procedure 60(b). [format] => [safe_value] => Hope 7 owned apartment units appraised for approximately $3.3 million that it wanted to convert to condominiums. The partnership asked Musse Leakemariam to help it obtain funds for the conversion. Leakemariam arranged for RIASO to lend $1.6 million to Hope 7 to refinance the partnership’s mortgage and serve as a bridge loan until a permanent construction loan could be arranged. The permanent financing never materialized, and Hope 7 was unable to repay the bridge loan to RIASO. After RIASO initiated foreclosure proceedings, Hope 7 filed a voluntary petition for Chapter 11 bankruptcy on April 2, 2009. The bankruptcy court converted the case to a Chapter 7 action and appointed a trustee. During a bankruptcy hearing in August 2009, Hope 7 learned Leakemariam was both the loan broker and the lender. In re Hope 7 Monroe St. Ltd. P’ship (Hope 7), No. 09-00273, 2011 WL 2619537, at *1, *7 (Bankr. D.D.C. July 1, 2011). Leakemariam had formed RIASO, made up of ten trusts benefitting Leakemariam’s family members, about a week before the bridge loan was made. RIASO’s only purpose was to make that loan. On November 6, 2009, Hope 7, along with Lenan and Pauline Cappel, its sole limited partners, filed a complaint against Leakemariam, RIASO, and Richard Boddie, RIASO’s attorney, in D.C. Superior Court. The plaintiffs alleged, inter alia, breach of fiduciary duty, fraud, and misrepresentation. /p/ RIASO filed a proof of claim in the bankruptcy court claiming Hope 7 owed it about $3 million. Hope 7 objected, arguing, among other grounds, RIASO and Leakemariam had engaged in fraudulent inducement to contract and had breached their fiduciary duty. The bankruptcy court overruled Hope 7’s objection and ordered the claim paid from the debtor’s estate. The trustee proposed to sell the estate’s interest in the Superior Court action to Boddie as a compromise of the claims, and the bankruptcy court approved the sale of the claims to Boddie for $30,000. On November 22, 2010, the court directed final distribution of the estate’s funds. On April 12, 2011, Hope 7 filed a motion pursuant to Federal Rule of Civil Procedure 60(b). ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6393 [uid] => 1 [filename] => hope-7-monroe-street-lp-v-riaso-llc-in-the-matter-of-hope-7-monroe-street-lp.pdf [uri] => s3://opinion_pdf/hope-7-monroe-street-lp-v-riaso-llc-in-the-matter-of-hope-7-monroe-street-lp.pdf [filemime] => application/pdf [filesize] => 55455 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Ginsburg, Henderson and Brown [format] => [safe_value] => Ginsburg, Henderson and Brown ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 916 ) [1] => Array ( [tid] => 894 ) [2] => Array ( [tid] => 897 ) [3] => Array ( [tid] => 920 ) [4] => Array ( [tid] => 898 ) [5] => Array ( [tid] => 928 ) [6] => Array ( [tid] => 921 ) [7] => Array ( [tid] => 930 ) [8] => Array ( [tid] => 901 ) [9] => Array ( [tid] => 906 ) [10] => Array ( [tid] => 910 ) [11] => Array ( [tid] => 911 ) [12] => Array ( [tid] => 944 ) [13] => Array ( [tid] => 913 ) [14] => Array ( [tid] => 914 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1448 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1583 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2075 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 713 ) ) ) [#weight] => 5 ) [513] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Hazelrigg v. United States Trustee (In re Hazelrigg) [href] => node/513 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Hazelrigg v. United States Trustee (In re Hazelrigg) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6293 [uid] => 573590 [title] => Hazelrigg v. United States Trustee (In re Hazelrigg) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 513 [type] => circuit_court_opinion [language] => en [created] => 1385072779 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => In re Hazelrigg, 9th Cir. B.A.P., WW-13-1230-TaDJu (November 19, 2013) [NOT FOR PUBLICATION] [format] => [safe_value] => In re Hazelrigg, 9th Cir. B.A.P., WW-13-1230-TaDJu (November 19, 2013) [NOT FOR PUBLICATION] ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => in an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court, to deny the debtor's (Thomas Hazelrigg) motion for reconsideration of the bankruptcy court's order granting the trustee's motion for summary judgment pursuant to § 727(a)(5). [format] => [safe_value] => in an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court, to deny the debtor's (Thomas Hazelrigg) motion for reconsideration of the bankruptcy court's order granting the trustee's motion for summary judgment pursuant to § 727(a)(5). ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor requesting documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, that were not scheduled or referenced in the Debtor’s amended schedules or SOFA. Debtor responded to the Subpoena (“Subpoena Response”), asserting a blanket Fifth Amendment privilege to the UST’s inquiry and did not produce any documentation. UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. [format] => [safe_value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor requesting documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, that were not scheduled or referenced in the Debtor’s amended schedules or SOFA. Debtor responded to the Subpoena (“Subpoena Response”), asserting a blanket Fifth Amendment privilege to the UST’s inquiry and did not produce any documentation. UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. Prior to this time, the Debtor was a well-known financier and businessman in the Seattle area. He also was an associate of an individual named Michael Mastro (“Mastro”). Mastro was formerly a major Seattle real estate developer and, like the Debtor, was involuntarily placed into chapter 7 bankruptcy. Other than stating his name and address on the petition and executing the documents, the schedules and SOFA were blank; the Debtor, instead, asserted a blanket Fifth Amendment privilege next to each signature block. The UST moved to compel the Debtor to file amended and complete schedules and a SOFA or to assert a Fifth Amendment privilege to each question. The bankruptcy court agreed and entered an order directing the Debtor to comply. He submitted a first and then a second set of amended schedules and a SOFA. The Debtor listed one vehicle in his amended Schedule B and disclosed that two cars were sold to Carmax approximately one or two years prior to petition; he did not describe these vehicles or provide any other details of the transactions. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor. In an attached document, the UST outlined a request for documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, assets neither scheduled nor otherwise referenced in the Debtor’s amended schedules or SOFA. Apparently, as part of the investigation in the Mastro bankruptcy case, the UST came into possession of a balance sheet dated July 31, 2008 (“Balance Sheet”),3 detailing the Debtor's assets (and their value) as of that date. Using this document, the UST expressly identified the following assets in the Subpoena: five luxury vehicles valued at $459,000; fees receivable valued at $1,145,500; and real estate owned personally and indirectly, valued at $49,956,350. The Debtor responded to the Subpoena (“Subpoena Response”), once again asserting a blanket Fifth Amendment privilege to the UST’s inquiry; he did not produce any documentation. In response, the UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). Among other things, the adversary complaint alleged that the Debtor owned the Assets in 2008, but failed to account for the transfer, disposition, or ownership of the Assets in the bankruptcy case. The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. [format] => [safe_value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. Prior to this time, the Debtor was a well-known financier and businessman in the Seattle area. He also was an associate of an individual named Michael Mastro (“Mastro”). Mastro was formerly a major Seattle real estate developer and, like the Debtor, was involuntarily placed into chapter 7 bankruptcy. Other than stating his name and address on the petition and executing the documents, the schedules and SOFA were blank; the Debtor, instead, asserted a blanket Fifth Amendment privilege next to each signature block. The UST moved to compel the Debtor to file amended and complete schedules and a SOFA or to assert a Fifth Amendment privilege to each question. The bankruptcy court agreed and entered an order directing the Debtor to comply. He submitted a first and then a second set of amended schedules and a SOFA. The Debtor listed one vehicle in his amended Schedule B and disclosed that two cars were sold to Carmax approximately one or two years prior to petition; he did not describe these vehicles or provide any other details of the transactions. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor. In an attached document, the UST outlined a request for documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, assets neither scheduled nor otherwise referenced in the Debtor’s amended schedules or SOFA. Apparently, as part of the investigation in the Mastro bankruptcy case, the UST came into possession of a balance sheet dated July 31, 2008 (“Balance Sheet”),3 detailing the Debtor's assets (and their value) as of that date. Using this document, the UST expressly identified the following assets in the Subpoena: five luxury vehicles valued at $459,000; fees receivable valued at $1,145,500; and real estate owned personally and indirectly, valued at $49,956,350. The Debtor responded to the Subpoena (“Subpoena Response”), once again asserting a blanket Fifth Amendment privilege to the UST’s inquiry; he did not produce any documentation. In response, the UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). Among other things, the adversary complaint alleged that the Debtor owned the Assets in 2008, but failed to account for the transfer, disposition, or ownership of the Assets in the bankruptcy case. The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6193 [uid] => 1 [filename] => hazelrigg-v-united-states-trustee-in-re-hazelrigg.pdf [uri] => s3://opinion_pdf/hazelrigg-v-united-states-trustee-in-re-hazelrigg.pdf [filemime] => application/pdf [filesize] => 40717 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Hon. Randall L. Dunn, Hon. Laura S. Taylor, Hon. Meredith A. Jury [format] => [safe_value] => Hon. Randall L. Dunn, Hon. Laura S. Taylor, Hon. Meredith A. Jury ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 916 ) [1] => Array ( [tid] => 918 ) [2] => Array ( [tid] => 898 ) [3] => Array ( [tid] => 906 ) [4] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1638 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2043 ) [2] => Array ( [tid] => 2074 ) [3] => Array ( [tid] => 2020 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 513 ) ) ) [#weight] => 6 ) [429] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Simon v. FIA Card Services, N.A. [href] => node/429 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Simon v. FIA Card Services, N.A. ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6209 [uid] => 521693 [title] => Simon v. FIA Card Services, N.A. [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 429 [type] => circuit_court_opinion [language] => en [created] => 1381174775 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Simon v. FIA Card Services, N.A., No. 12-3293, 2013 WL 5508868 (3d Cir. Oct. 7, 2013) [format] => [safe_value] => Simon v. FIA Card Services, N.A., No. 12-3293, 2013 WL 5508868 (3d Cir. Oct. 7, 2013) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => Affirming in part and reversing in part the dismissal of the Debtors’ claims under the Fair Debt Collection Practices Act (the “FDCPA”) and remanding the case back to the United States District Court for the District of New Jersey for consideration of whether the failure to comply with Rule 45 of the Federal Rules of Civil Procedure (“Federal Rule”) and Rule 9016 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) violated sections 1692e(5) and (13) of the FDCPA. Affirming the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Court of Appeals for the Third Circuit held that (a) failing to identify the recording method in the subpoenas for examinations under Bankruptcy Rule 2004 or (b) issuing the subpoenas from a district other than the one where the examinations were to be held did not violate Bankruptcy Rule 9016 or Federal Rule 45. Affirming the dismissal of the Debtors’ claims under section 1692e(11) of the FDCPA, the Third Circuit held that the “mini-Miranda” notice required under section 1692e(11) conflicts with the automatic stay provision of the Bankruptcy Code that forbids “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy case and such conflict precludes allowing a claim under section 1692e(11). Reversing the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Third Circuit held that (a) failure to serve the subpoenas directly on the individuals subpoenaed, as required by Federal Rule 45(b)(1), and (b) failure to include the text of Federal Rule 45(c)-(d) in the subpoenas, as required by Federal Rule 45(a)(1)(A)(iv), violated Federal Rule 45 and Bankruptcy Rule 9016. Following the Seventh Circuit’s approach, the Court of Appeals for the Third Circuit held that there is no categorical preclusion of the FDCPA claims when FDCPA claims arise from communications that a debt collector sends a debtor in a pending bankruptcy case that allegedly violate the Bankruptcy Code or Bankruptcy Rules. The Third Circuit concluded that the bankruptcy court’s authority to enforce compliance with the subpoena rules under the Bankruptcy Code does not conflict with finding liability under the FDCPA for violations based on a debt collector’s failure to comply with the subpoena rules. [format] => [safe_value] => Affirming in part and reversing in part the dismissal of the Debtors’ claims under the Fair Debt Collection Practices Act (the “FDCPA”) and remanding the case back to the United States District Court for the District of New Jersey for consideration of whether the failure to comply with Rule 45 of the Federal Rules of Civil Procedure (“Federal Rule”) and Rule 9016 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) violated sections 1692e(5) and (13) of the FDCPA. Affirming the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Court of Appeals for the Third Circuit held that (a) failing to identify the recording method in the subpoenas for examinations under Bankruptcy Rule 2004 or (b) issuing the subpoenas from a district other than the one where the examinations were to be held did not violate Bankruptcy Rule 9016 or Federal Rule 45. Affirming the dismissal of the Debtors’ claims under section 1692e(11) of the FDCPA, the Third Circuit held that the “mini-Miranda” notice required under section 1692e(11) conflicts with the automatic stay provision of the Bankruptcy Code that forbids “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy case and such conflict precludes allowing a claim under section 1692e(11). Reversing the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Third Circuit held that (a) failure to serve the subpoenas directly on the individuals subpoenaed, as required by Federal Rule 45(b)(1), and (b) failure to include the text of Federal Rule 45(c)-(d) in the subpoenas, as required by Federal Rule 45(a)(1)(A)(iv), violated Federal Rule 45 and Bankruptcy Rule 9016. Following the Seventh Circuit’s approach, the Court of Appeals for the Third Circuit held that there is no categorical preclusion of the FDCPA claims when FDCPA claims arise from communications that a debt collector sends a debtor in a pending bankruptcy case that allegedly violate the Bankruptcy Code or Bankruptcy Rules. The Third Circuit concluded that the bankruptcy court’s authority to enforce compliance with the subpoena rules under the Bankruptcy Code does not conflict with finding liability under the FDCPA for violations based on a debt collector’s failure to comply with the subpoena rules. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The United States District Court for the District of New Jersey dismissed the Debtors’ complaint for liability under sections 1692e(5), (11), and (13) of the FDCPA under Federal Rule 12(b)(6). The district court held that the Bankruptcy Code provided the exclusive remedy for the alleged violations and precluded the Debtors’ claims under the FDCPA. The district court also held that even if claims under the FDCPA were not precluded, the Debtors’ complaint did not allege sufficient facts to state a claim. The Debtors appealed the district court’s decision. Addressing an issue of first impression of whether communications that a debt collector sends a debtor during a pending bankruptcy case (i.e., sending a letter and notice offering to settle a debt and requesting an examination under Bankruptcy Rule 2004) can give rise to a claim under the FDCPA, the Court of Appeals for the Third Circuit affirmed in part, reversed in part, and remanded. [format] => [safe_value] => The United States District Court for the District of New Jersey dismissed the Debtors’ complaint for liability under sections 1692e(5), (11), and (13) of the FDCPA under Federal Rule 12(b)(6). The district court held that the Bankruptcy Code provided the exclusive remedy for the alleged violations and precluded the Debtors’ claims under the FDCPA. The district court also held that even if claims under the FDCPA were not precluded, the Debtors’ complaint did not allege sufficient facts to state a claim. The Debtors appealed the district court’s decision. Addressing an issue of first impression of whether communications that a debt collector sends a debtor during a pending bankruptcy case (i.e., sending a letter and notice offering to settle a debt and requesting an examination under Bankruptcy Rule 2004) can give rise to a claim under the FDCPA, the Court of Appeals for the Third Circuit affirmed in part, reversed in part, and remanded. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => On December 30, 2010, Robert Maxwell Simon and Stacey Helene Simon (the “Debtors”) filed for bankruptcy protection under chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey. The Debtors’ schedules identified an unsecured, non-priority claim for credit-card debt owed to Bank of America (now FIA Card Services, N.A. (“FIA”)). FIA retained Weinstein & Riley, P.S. (“W&R”) to represent it in the Debtors’ bankruptcy case. On January 28, 2011, W&R sent a letter to the Debtors through their bankruptcy counsel along with a notice of the Debtors’ examinations under Bankruptcy Rule 2004. The letter mentioned that FIA was considering filing an adversary proceeding under section 523 of the Bankruptcy Code to challenge the dischargeability of the Debtors’ debt due to FIA and included an offer to forego filing of the adversary proceeding if the Debtors agreed to either (a) stipulate that the debt was nondischargeable or (b) pay a reduced amount to settle the debt. The letter also stated that an examination under Bankruptcy Rule 2004 had been scheduled and contained additional information about how to challenge the debt. Attached to the letter was a notice identifying the date and time for the Debtors’ examinations and requesting production of certain documents for the examinations. The Debtors filed a motion to quash the notice for examinations under Bankruptcy Rule 2004 because it failed to comply with the subpoena requirements under Bankruptcy Rule 9016 and Federal Rule 45. Further, the Debtors filed an adversary proceeding asserting claims against FIA and W&R under sections 1692e(5), (11), and (13) of the FDCPA. Specifically, the Debtors alleged that by sending the letter and notice, W&R and FIA violated sections 1692e(5) and (13) in four ways by: 1. intentionally failing to send the letter and subpoena to the Debtors and instead sending the documents to their bankruptcy counsel and therefore violating Federal Rule 45(b)(1)'s requirement that subpoenas be served directly on the individuals subpoenaed; 2. specifying the location for the Bankruptcy Rule 2004 examinations as the office of W&R in New York, rather than in New Jersey and therefore violating Federal Rule 45(a)(2)(B)'s requirement that a subpoena be issued “from the court for the district where the deposition is to be taken”; 3. failing to include in the subpoena the text of Federal Rule 45(c) and (d), as required under Federal Rule 45(a)(l)(A)(iv); and 4. failing to include in the subpoena the method of recording the Bankruptcy Rule 2004 examinations, as required under Federal Rule 45(a)(1)(B). Further, the Debtors alleged that W&R violated section 1692e(11) of the FDCPA by failing to include the “mini-Miranda ” warning that a debt collector must provide in the initial communication with the debtor that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” The bankruptcy court quashed the notices under Bankruptcy Rule 2004 but ruled that it lacked subject-matter jurisdiction over the FDCPA claims and dismissed them without prejudice. The Debtors filed a lawsuit against FIA and W&R in the United States District Court for the District of New Jersey alleging that the letters and subpoenas violated the FDCPA prohibition on false, deceptive, and misleading debt-collection practices under 15 U.S.C. § 1692e(5), (11), and (13). FIA and W&R filed a motion to dismiss on three grounds: (1) the FDCPA claim was precluded by the Bankruptcy Court's earlier dismissal of the Debtors’ adversary proceeding; (2) the Debtors’ complaint failed to state a claim; and (3) the allegations from which the FDCPA claims arose were governed exclusively by the Bankruptcy Code. The District Court dismissed the FDCPA suit, with prejudice, stating that the FDCPA claims were precluded by the Bankruptcy Code and that the complaint failed to set forth sufficient factual allegations to state a claim under the FDCPA. The Debtors appealed the order dismissing their complaint. [format] => [safe_value] => On December 30, 2010, Robert Maxwell Simon and Stacey Helene Simon (the “Debtors”) filed for bankruptcy protection under chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey. The Debtors’ schedules identified an unsecured, non-priority claim for credit-card debt owed to Bank of America (now FIA Card Services, N.A. (“FIA”)). FIA retained Weinstein & Riley, P.S. (“W&R”) to represent it in the Debtors’ bankruptcy case. On January 28, 2011, W&R sent a letter to the Debtors through their bankruptcy counsel along with a notice of the Debtors’ examinations under Bankruptcy Rule 2004. The letter mentioned that FIA was considering filing an adversary proceeding under section 523 of the Bankruptcy Code to challenge the dischargeability of the Debtors’ debt due to FIA and included an offer to forego filing of the adversary proceeding if the Debtors agreed to either (a) stipulate that the debt was nondischargeable or (b) pay a reduced amount to settle the debt. The letter also stated that an examination under Bankruptcy Rule 2004 had been scheduled and contained additional information about how to challenge the debt. Attached to the letter was a notice identifying the date and time for the Debtors’ examinations and requesting production of certain documents for the examinations. The Debtors filed a motion to quash the notice for examinations under Bankruptcy Rule 2004 because it failed to comply with the subpoena requirements under Bankruptcy Rule 9016 and Federal Rule 45. Further, the Debtors filed an adversary proceeding asserting claims against FIA and W&R under sections 1692e(5), (11), and (13) of the FDCPA. Specifically, the Debtors alleged that by sending the letter and notice, W&R and FIA violated sections 1692e(5) and (13) in four ways by: 1. intentionally failing to send the letter and subpoena to the Debtors and instead sending the documents to their bankruptcy counsel and therefore violating Federal Rule 45(b)(1)'s requirement that subpoenas be served directly on the individuals subpoenaed; 2. specifying the location for the Bankruptcy Rule 2004 examinations as the office of W&R in New York, rather than in New Jersey and therefore violating Federal Rule 45(a)(2)(B)'s requirement that a subpoena be issued “from the court for the district where the deposition is to be taken”; 3. failing to include in the subpoena the text of Federal Rule 45(c) and (d), as required under Federal Rule 45(a)(l)(A)(iv); and 4. failing to include in the subpoena the method of recording the Bankruptcy Rule 2004 examinations, as required under Federal Rule 45(a)(1)(B). Further, the Debtors alleged that W&R violated section 1692e(11) of the FDCPA by failing to include the “mini-Miranda ” warning that a debt collector must provide in the initial communication with the debtor that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” The bankruptcy court quashed the notices under Bankruptcy Rule 2004 but ruled that it lacked subject-matter jurisdiction over the FDCPA claims and dismissed them without prejudice. The Debtors filed a lawsuit against FIA and W&R in the United States District Court for the District of New Jersey alleging that the letters and subpoenas violated the FDCPA prohibition on false, deceptive, and misleading debt-collection practices under 15 U.S.C. § 1692e(5), (11), and (13). FIA and W&R filed a motion to dismiss on three grounds: (1) the FDCPA claim was precluded by the Bankruptcy Court's earlier dismissal of the Debtors’ adversary proceeding; (2) the Debtors’ complaint failed to state a claim; and (3) the allegations from which the FDCPA claims arose were governed exclusively by the Bankruptcy Code. The District Court dismissed the FDCPA suit, with prejudice, stating that the FDCPA claims were precluded by the Bankruptcy Code and that the complaint failed to set forth sufficient factual allegations to state a claim under the FDCPA. The Debtors appealed the order dismissing their complaint. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6109 [uid] => 1 [filename] => simon-v-fia-card-services-na.pdf [uri] => s3://opinion_pdf/simon-v-fia-card-services-na.pdf [filemime] => application/pdf [filesize] => 357611 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => The Honorable Lee H. Rosenthal, the United States District Court for the Southern District of Texas, sitting by designation [format] => [safe_value] => The Honorable Lee H. Rosenthal, the United States District Court for the Southern District of Texas, sitting by designation ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 891 ) [1] => Array ( [tid] => 915 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1335 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1582 ) [1] => Array ( [tid] => 1603 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2067 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 429 ) ) ) [#weight] => 7 ) [3219] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) [href] => node/3219 [html] => 1 [attributes] => Array ( [rel] => tag [title] => La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 8999 [uid] => 524817 [title] => La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 3219 [type] => circuit_court_opinion [language] => en [created] => 1355247390 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => No. 11-51167, Pursuant to 5TH CIR. R. 47.5, not for publication. [format] => [safe_value] => No. 11-51167, Pursuant to 5TH CIR. R. 47.5, not for publication. ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => DISMISSED the appeal for lack of jurisdiction, concluding that bankruptcy court's discovery order was interlocutory, and the district court's order (dismissing the appeal from the bankruptcy court) did not "cure" the non-finality such that the Fifth Circuit would have jurisdiction over the appeal. The Court explained that federal courts have concluded "overwhelmingly" there is no right to appeal bankruptcy courts' interlocutory discovery orders. The Court also explained that the "collateral order" doctrine did not apply to the facts of this case because the appellants could have obtained the effective review by appealling the now-final plan confirmation order, had they objected to confirmation (which they apparently did not). [format] => [safe_value] => DISMISSED the appeal for lack of jurisdiction, concluding that bankruptcy court's discovery order was interlocutory, and the district court's order (dismissing the appeal from the bankruptcy court) did not "cure" the non-finality such that the Fifth Circuit would have jurisdiction over the appeal. The Court explained that federal courts have concluded "overwhelmingly" there is no right to appeal bankruptcy courts' interlocutory discovery orders. The Court also explained that the "collateral order" doctrine did not apply to the facts of this case because the appellants could have obtained the effective review by appealling the now-final plan confirmation order, had they objected to confirmation (which they apparently did not). ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The bankrutpcy court denied appellants' motion to compel discovery, and the movants/appellants appealed to the district court, which dismissed the appeal for lack of jurisdiction because the bankruptcy court's order was interlocutory. Appellants sought appeal of the district court's dismissal order to the Fifth Circuit. [format] => [safe_value] => The bankrutpcy court denied appellants' motion to compel discovery, and the movants/appellants appealed to the district court, which dismissed the appeal for lack of jurisdiction because the bankruptcy court's order was interlocutory. Appellants sought appeal of the district court's dismissal order to the Fifth Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Appellants were creditors in the chapter 13 bankruptcy case who were suspicious of transfers from the debtor to a non-debtor third party. Through Rule 2004, the appellants attempted to subpoena bank records from Washington Federal Savings (WFS), the institution where the alleged recipient of fraudulent transfers maintained his deposits. WFS moved to quash the appellants' subpoena, and the bankruptcy court granted the motion, in part, limiting the scope of discovery and requiring appellants to pre-pay the costs to respond to the appellants subpoena. A month later, the appellants filed a motion to compel WFS to produce the requested documents and broaden the scope from the bankrutpcy court's prior order. The bankrutpcy court denied the motion, concluding that appellants failed to take steps necessary to avoid imposing an undue burden on WFS, and that appellants were merely trying to re-litigate the issue addressed at the prior hearing. Appellants appealed the order to the district court, which dismissed the appeal for lack of jurisdiction. [format] => [safe_value] => Appellants were creditors in the chapter 13 bankruptcy case who were suspicious of transfers from the debtor to a non-debtor third party. Through Rule 2004, the appellants attempted to subpoena bank records from Washington Federal Savings (WFS), the institution where the alleged recipient of fraudulent transfers maintained his deposits. WFS moved to quash the appellants' subpoena, and the bankruptcy court granted the motion, in part, limiting the scope of discovery and requiring appellants to pre-pay the costs to respond to the appellants subpoena. A month later, the appellants filed a motion to compel WFS to produce the requested documents and broaden the scope from the bankrutpcy court's prior order. The bankrutpcy court denied the motion, concluding that appellants failed to take steps necessary to avoid imposing an undue burden on WFS, and that appellants were merely trying to re-litigate the issue addressed at the prior hearing. Appellants appealed the order to the district court, which dismissed the appeal for lack of jurisdiction. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 8892 [uid] => 1 [filename] => la-tierra-interiors-inc-v-washington-federal-savings-in-re-tullius.pdf [uri] => s3://opinion_pdf/la-tierra-interiors-inc-v-washington-federal-savings-in-re-tullius.pdf [filemime] => application/pdf [filesize] => 87249 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => WIENER, CLEMENT, and PRADO [format] => [safe_value] => WIENER, CLEMENT, and PRADO ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1356 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => AKAUFMAN [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 3219 ) ) ) [#weight] => 8 ) [#sorted] => 1 ) [pager] => Array ( [#theme] => pager [#weight] => 5 ) ) ) ) [14] => Array ( [file] => /var/www/html/volo/includes/menu.inc [line] => 542 [function] => drupal_deliver_page [args] => Array ( [0] => Array ( [term_heading] => Array ( [#prefix] =>
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[term] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => taxonomy_term [#bundle] => bankruptcy_rules [#view_mode] => full [#theme] => taxonomy_term [#term] => stdClass Object ( [tid] => 1894 [vid] => 12 [name] => Rule 2004 [description] => [format] => plain_text [weight] => 0 [vocabulary_machine_name] => bankruptcy_rules [rdf_mapping] => Array ( [rdftype] => Array ( [0] => skos:Concept ) [name] => Array ( [predicates] => Array ( [0] => rdfs:label [1] => skos:prefLabel ) ) [description] => Array ( [predicates] => Array ( [0] => skos:definition ) ) [vid] => Array ( [predicates] => Array ( [0] => skos:inScheme ) [type] => rel ) [parent] => Array ( [predicates] => Array ( [0] => skos:broader ) [type] => rel ) ) [entity_view_prepared] => 1 ) [#language] => en [#attached] => Array ( [css] => Array ( [0] => modules/taxonomy/taxonomy.css ) ) ) ) [nodes] => Array ( [4018] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about JTF Rose, Inc. v. Esquerra [href] => node/4018 [html] => 1 [attributes] => Array ( [rel] => tag [title] => JTF Rose, Inc. v. Esquerra ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 9798 [uid] => 209327 [title] => JTF Rose, Inc. v. Esquerra [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 4018 [type] => circuit_court_opinion [language] => en [created] => 1533763458 [changed] => 1534184101 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1534184101 [revision_uid] => 0 [field_citation] => Array ( ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of sufficient findings to support denial prevented BAP from determining if error was harmless. Bankruptcy court's prior denial of motions to dismiss on procedural grounds did not warrant application of issue preclusion to third motion. Bankruptcy court failed to make sufficient findings that denial of prior motions was on the merits. Debtor failed to raise issue preclusion based on confirmed chapter 13 plan. [format] => [safe_value] => BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of sufficient findings to support denial prevented BAP from determining if error was harmless. Bankruptcy court's prior denial of motions to dismiss on procedural grounds did not warrant application of issue preclusion to third motion. Bankruptcy court failed to make sufficient findings that denial of prior motions was on the merits. Debtor failed to raise issue preclusion based on confirmed chapter 13 plan. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Bankruptcy court (CD Cal.) denied creditor's motion to dismiss chapter 13 bankruptcy case; creditor appealed to BAP for 9th Circuit. [format] => [safe_value] => Bankruptcy court (CD Cal.) denied creditor's motion to dismiss chapter 13 bankruptcy case; creditor appealed to BAP for 9th Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Repeat filer filed third bankruptcy that debtor converted to chapter 13 from chapter 7 after trustee issued no distribution report. Bankruptcy court confirmed debtor's plan that included avoidance of junior secured creditor's lien and treatment as general unsecured claim. Two months later, debtor and creditor stipulated that creditor's lien would be avoided and treated as unsecured claim contingent on debtor's completion of his chapter 13 plan and receipt of a discharge. Creditor then changed its mind, asserted debtor's bad faith, and filed motion to dismiss. Bankruptcy court denied motion for lack of property service. Creditor took R. 2004 exam of debtor and re-filed motion to dismiss, asserting debtor failed to disclose assets, improperly attaching R. 2004 transcript with motion, in violation of local rule. Court denied motion for improper service and improper attachment of R. 2004 transcript. Creditor re-filed motion and debtor objected. [format] => [safe_value] => Repeat filer filed third bankruptcy that debtor converted to chapter 13 from chapter 7 after trustee issued no distribution report. Bankruptcy court confirmed debtor's plan that included avoidance of junior secured creditor's lien and treatment as general unsecured claim. Two months later, debtor and creditor stipulated that creditor's lien would be avoided and treated as unsecured claim contingent on debtor's completion of his chapter 13 plan and receipt of a discharge. Creditor then changed its mind, asserted debtor's bad faith, and filed motion to dismiss. Bankruptcy court denied motion for lack of property service. Creditor took R. 2004 exam of debtor and re-filed motion to dismiss, asserting debtor failed to disclose assets, improperly attaching R. 2004 transcript with motion, in violation of local rule. Court denied motion for improper service and improper attachment of R. 2004 transcript. Creditor re-filed motion and debtor objected. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 9677 [uid] => 513416 [filename] => 0808_9b.pdf [uri] => s3://0808_9b.pdf [filemime] => application/pdf [filesize] => 125946 [status] => 1 [timestamp] => 1533763458 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Taylor, Lafferty, Lastreto [format] => [safe_value] => Taylor, Lafferty, Lastreto ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 906 ) [1] => Array ( [tid] => 910 ) [2] => Array ( [tid] => 915 ) [3] => Array ( [tid] => 916 ) [4] => Array ( [tid] => 920 ) [5] => Array ( [tid] => 922 ) [6] => Array ( [tid] => 944 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2018-08-13 14:15:01 [timezone] => America/New_York [timezone_db] => UTC [date_type] => datetime ) ) ) [field_case_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2018-08-07 00:00:00 [timezone] => America/New_York [timezone_db] => America/New_York [date_type] => datetime ) ) ) [field_case_number] => Array ( [und] => Array ( [0] => Array ( [value] => BAP No. CC-17-1356-TaLLs [format] => [safe_value] => BAP No. CC-17-1356-TaLLs ) ) ) [field_publication] => Array ( [und] => Array ( [0] => Array ( [tid] => 2148 ) ) ) [field_case_type] => Array ( [und] => Array ( [0] => Array ( [tid] => 2151 ) ) ) [field_case_status] => Array ( [und] => Array ( [0] => Array ( [tid] => 2156 ) ) ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 4018 ) ) ) [#weight] => 0 ) [3458] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Stein v. Stubbs (In re Stubbs) [href] => node/3458 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Stein v. Stubbs (In re Stubbs) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 9238 [uid] => 101224 [title] => Stein v. Stubbs (In re Stubbs) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 3458 [type] => circuit_court_opinion [language] => en [created] => 1489097745 [changed] => 1489177801 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1489177801 [revision_uid] => 0 [field_citation] => Array ( ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => Sixth Circuit Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's orders denying the Chapter 7 Trustee's motion for default judgment, dismissing the adversary proceeding and vacating the Rule 2004 examination order. Debtor failed to provide Trustee her tax return for the year of filing. After continuing the 341 meeting several times, Trustee obtained the Rule 2004 order for the Debtor to appear and provide the return or testify why she did not filed the return. Debtor failed to appear and Trustee filed an adversary proceeding to revoke the discharge. [format] => [safe_value] => Sixth Circuit Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's orders denying the Chapter 7 Trustee's motion for default judgment, dismissing the adversary proceeding and vacating the Rule 2004 examination order. Debtor failed to provide Trustee her tax return for the year of filing. After continuing the 341 meeting several times, Trustee obtained the Rule 2004 order for the Debtor to appear and provide the return or testify why she did not filed the return. Debtor failed to appear and Trustee filed an adversary proceeding to revoke the discharge. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Pro se debtor filed Chapter 7 bankruptcy. Trustee completed the 341 meeting in Feb. 2015 and told debtor to provide the tax return due April, 2015 to the Trustee and not spend any refund. Discharge issued n April 29, 2015. When debtor failed to appear at the Rule 2004 exam, he filed the adversary to revoke the discharge under Sections 727 (d)(2) and (3). Debtor did not respond and clerk entered a default order under Section 727 (d)(3). Court ordered a hearing on Trustee's motion for default judgment. Court thought Trustee should not have completed the 341 meeting which would have presented the discharge from issuing. Court thought Chapter 7 case should be dismissed. Trustee thought there were assets to be distributed through refund due on return. [format] => [safe_value] => Pro se debtor filed Chapter 7 bankruptcy. Trustee completed the 341 meeting in Feb. 2015 and told debtor to provide the tax return due April, 2015 to the Trustee and not spend any refund. Discharge issued n April 29, 2015. When debtor failed to appear at the Rule 2004 exam, he filed the adversary to revoke the discharge under Sections 727 (d)(2) and (3). Debtor did not respond and clerk entered a default order under Section 727 (d)(3). Court ordered a hearing on Trustee's motion for default judgment. Court thought Trustee should not have completed the 341 meeting which would have presented the discharge from issuing. Court thought Chapter 7 case should be dismissed. Trustee thought there were assets to be distributed through refund due on return. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Although the adversary proceeding was filed six months after discharge was issued, the Court believed the Trustee waited too long. section 727 (e)(2) allows revocation of discharge to be filed within one year so Trustee was clearly within his rights to file within six months. Court issued show cause order where debtor failed to appear. Civil contempt is not the only way to handle the debtor's failure to file the tax return. The Trustee was proceeding correctly. [format] => [safe_value] => Although the adversary proceeding was filed six months after discharge was issued, the Court believed the Trustee waited too long. section 727 (e)(2) allows revocation of discharge to be filed within one year so Trustee was clearly within his rights to file within six months. Court issued show cause order where debtor failed to appear. Civil contempt is not the only way to handle the debtor's failure to file the tax return. The Trustee was proceeding correctly. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 9126 [uid] => 513416 [filename] => 0309_6.pdf [uri] => s3://0309_6.pdf [filemime] => application/pdf [filesize] => 106929 [status] => 1 [timestamp] => 1489097745 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Humphrey, Opperman and Preston, Bankruptcy Appellate Panel Judges [format] => [safe_value] => Humphrey, Opperman and Preston, Bankruptcy Appellate Panel Judges ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 898 ) [1] => Array ( [tid] => 901 ) [2] => Array ( [tid] => 910 ) [3] => Array ( [tid] => 916 ) [4] => Array ( [tid] => 918 ) [5] => Array ( [tid] => 925 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1368 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2017-03-10 15:30:02 [timezone] => America/New_York [timezone_db] => UTC [date_type] => datetime ) ) ) [field_case_date] => Array ( [und] => Array ( [0] => Array ( [value] => 2017-03-09 00:00:00 [timezone] => America/New_York [timezone_db] => America/New_York [date_type] => datetime ) ) ) [field_case_number] => Array ( [und] => Array ( [0] => Array ( [value] => File Name: 17b0003p.06; Case Nos. 16-8025/8027 [format] => [safe_value] => File Name: 17b0003p.06; Case Nos. 16-8025/8027 ) ) ) [field_publication] => Array ( [und] => Array ( [0] => Array ( [tid] => 2147 ) ) ) [field_case_type] => Array ( [und] => Array ( [0] => Array ( [tid] => 2151 ) ) ) [field_case_status] => Array ( [und] => Array ( [0] => Array ( [tid] => 2156 ) ) ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 3458 ) ) ) [#weight] => 1 ) [2186] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Vaughan v. Weinstein (In re Vaughan) [href] => node/2186 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Vaughan v. Weinstein (In re Vaughan) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7966 [uid] => 209327 [title] => Vaughan v. Weinstein (In re Vaughan) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 2186 [type] => circuit_court_opinion [language] => en [created] => 1457993164 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => BAP No. NV-15-1254-JuKiD (BAP 9th Cir. Feb. 29, 2016) (unpublished) [format] => [safe_value] => BAP No. NV-15-1254-JuKiD (BAP 9th Cir. Feb. 29, 2016) (unpublished) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The BAP for the 9th Circuit affirmed summary judgment entered by the bankruptcy court (D. Nev.) revoking the discharge of a chapter 7 debtor for failing to appear at a 2004 exam. The BAP agreed that following the debtor's failure to appear at a 2004 exam, the bankruptcy court's entry of an order compelling the debtor's appearance contained implicit factual findings that satisfied the elements for revocation of the debtor's discharge under 11 USC 727, and that consequently, summary judgment was proper under law of the case doctrine. The debtors' failure to appear at the initial 2004 exam was sufficient to satisfy the elements of 11 USC 727 because it was undisputed that the debtors were aware of the order and willfully or intentionally failed to obey the order. [format] => [safe_value] => The BAP for the 9th Circuit affirmed summary judgment entered by the bankruptcy court (D. Nev.) revoking the discharge of a chapter 7 debtor for failing to appear at a 2004 exam. The BAP agreed that following the debtor's failure to appear at a 2004 exam, the bankruptcy court's entry of an order compelling the debtor's appearance contained implicit factual findings that satisfied the elements for revocation of the debtor's discharge under 11 USC 727, and that consequently, summary judgment was proper under law of the case doctrine. The debtors' failure to appear at the initial 2004 exam was sufficient to satisfy the elements of 11 USC 727 because it was undisputed that the debtors were aware of the order and willfully or intentionally failed to obey the order. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Chapter 7 trustee obtained order directing debtors to appear at 2004 exam, but debtors failed to appear. Chapter 7 trustee commenced revocation of discharge adversary, then filed motion for summary judgment after bankruptcy court issued order compelling debtor to attend 2004 exam. Bankruptcy court granted motion for summary judgment revoking discharge. Debtors appealed to BAP for 9th Circuit. [format] => [safe_value] => Chapter 7 trustee obtained order directing debtors to appear at 2004 exam, but debtors failed to appear. Chapter 7 trustee commenced revocation of discharge adversary, then filed motion for summary judgment after bankruptcy court issued order compelling debtor to attend 2004 exam. Bankruptcy court granted motion for summary judgment revoking discharge. Debtors appealed to BAP for 9th Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => After co-chapter 7 debtors obtained their discharge, the chapter 7 trustee discovered that they had failed to disclose potential assets and creditors, including disputed interests in the trademark "World Chess Federation Hall of Fame," and claims related to dispute with the World Chess Museum, Inc. The debtors had sought to transfer The trustee sought and obtained, over debtors' opposition, an order authorizing her to schedule Rule 2004 exams for both debtors. The trustee served notice of the exams on the debtors, but the debtors failed to appear. Debtors filed numerous motions in an attempt to prevent or stay the examinations, demonstrating their awareness of the scheduled date. Trustee filed an adversary complaint seeking to revoke debtors' discharge under 727(d)(1)(discharge obtained by fraud) and (d)(3) refusal to obey a lawful order of the court). Debtors failed to appear for the scheduled R. 2004 exam. Debtors filed a motion to compel debtors' attendance, which the bankruptcy court granted finding that debtors evaded the R. 2004 exam. The trustee moved for partial summary judgment on the 727(d)(3) claim based on debtors' failure to obey the original R. 2004 order. The bankruptcy court granted the motion, finding there were no genuine issues of disputed fact regarding debtors' awareness of the R. 2004 order, and their willful and intentional refusal to obey it. [format] => [safe_value] => After co-chapter 7 debtors obtained their discharge, the chapter 7 trustee discovered that they had failed to disclose potential assets and creditors, including disputed interests in the trademark "World Chess Federation Hall of Fame," and claims related to dispute with the World Chess Museum, Inc. The debtors had sought to transfer The trustee sought and obtained, over debtors' opposition, an order authorizing her to schedule Rule 2004 exams for both debtors. The trustee served notice of the exams on the debtors, but the debtors failed to appear. Debtors filed numerous motions in an attempt to prevent or stay the examinations, demonstrating their awareness of the scheduled date. Trustee filed an adversary complaint seeking to revoke debtors' discharge under 727(d)(1)(discharge obtained by fraud) and (d)(3) refusal to obey a lawful order of the court). Debtors failed to appear for the scheduled R. 2004 exam. Debtors filed a motion to compel debtors' attendance, which the bankruptcy court granted finding that debtors evaded the R. 2004 exam. The trustee moved for partial summary judgment on the 727(d)(3) claim based on debtors' failure to obey the original R. 2004 order. The bankruptcy court granted the motion, finding there were no genuine issues of disputed fact regarding debtors' awareness of the R. 2004 order, and their willful and intentional refusal to obey it. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7864 [uid] => 1 [filename] => vaughan-v-weinstein-in-re-vaughan.pdf [uri] => s3://opinion_pdf/vaughan-v-weinstein-in-re-vaughan.pdf [filemime] => application/pdf [filesize] => 104106 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Jury, Kirscher, Dunn [format] => [safe_value] => Jury, Kirscher, Dunn ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 918 ) [1] => Array ( [tid] => 898 ) [2] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1638 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 2186 ) ) ) [#weight] => 2 ) [2112] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Lynch v. Malloy, III (In re Lynch) [href] => node/2112 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Lynch v. Malloy, III (In re Lynch) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7892 [uid] => 197835 [title] => Lynch v. Malloy, III (In re Lynch) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 2112 [type] => circuit_court_opinion [language] => en [created] => 1453414684 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Lynch v. Malloy, III, (In re Lynch), Case No. 15-054 (BAP 10th Cir. January 20, 2016). Published. [format] => [safe_value] => Lynch v. Malloy, III, (In re Lynch), Case No. 15-054 (BAP 10th Cir. January 20, 2016). Published. ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The BAP has jurisdiction to hear appeals from an order entered in bankruptcy courts if the order finally disposes of discrete disputes within the larger case. [format] => [safe_value] => The BAP has jurisdiction to hear appeals from an order entered in bankruptcy courts if the order finally disposes of discrete disputes within the larger case. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The 10th Circuit BAP held that while an order for a Rule 2004 examination can be a discrete dispute that sufficiently concludes a proceeding and thus, final for appeal purposes, the order denying appellant’s motion to reconsider an order authorizing the trustee to examine the appellant pursuant to Rule 2004 was not a final order. Since appellant had not asked for leave to file an interlocutory appeal, the BAP dismissed the appeal noting that it would have declined leave to appeal in any event. [format] => [safe_value] => The 10th Circuit BAP held that while an order for a Rule 2004 examination can be a discrete dispute that sufficiently concludes a proceeding and thus, final for appeal purposes, the order denying appellant’s motion to reconsider an order authorizing the trustee to examine the appellant pursuant to Rule 2004 was not a final order. Since appellant had not asked for leave to file an interlocutory appeal, the BAP dismissed the appeal noting that it would have declined leave to appeal in any event. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Appellant and his wife filed chapter 11 and their case was converted to chapter 7. Subsequently, appellant brought an adversary proceeding against the trustee and the bankruptcy court judge. The adversary proceeding was dismissed which is on appeal. The bankruptcy court granted trustee’s motion to take appellant’s Rule 2004 examination to investigate how appellant was funding the adversary proceeding. Appellant’s efforts to avoid the examination failed and eventually, trustee filed a renewed motion to take appellant’s examination and a motion to compel appellant to answer Rule 2004 exam questions both of which were granted. Appellant filed a motion to reconsider which the bankruptcy court denied. [format] => [safe_value] => Appellant and his wife filed chapter 11 and their case was converted to chapter 7. Subsequently, appellant brought an adversary proceeding against the trustee and the bankruptcy court judge. The adversary proceeding was dismissed which is on appeal. The bankruptcy court granted trustee’s motion to take appellant’s Rule 2004 examination to investigate how appellant was funding the adversary proceeding. Appellant’s efforts to avoid the examination failed and eventually, trustee filed a renewed motion to take appellant’s examination and a motion to compel appellant to answer Rule 2004 exam questions both of which were granted. Appellant filed a motion to reconsider which the bankruptcy court denied. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7790 [uid] => 1 [filename] => lynch-v-malloy-iii-in-re-lynch.pdf [uri] => s3://opinion_pdf/lynch-v-malloy-iii-in-re-lynch.pdf [filemime] => application/pdf [filesize] => 33688 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Karlin, Jacobvitz, Mosier [format] => [safe_value] => Karlin, Jacobvitz, Mosier ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 910 ) [1] => Array ( [tid] => 914 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1425 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 2112 ) ) ) [#weight] => 3 ) [1330] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Dymon Investments, Inc. v. Welch (In re Welch) [href] => node/1330 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Dymon Investments, Inc. v. Welch (In re Welch) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 7110 [uid] => 552865 [title] => Dymon Investments, Inc. v. Welch (In re Welch) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 1330 [type] => circuit_court_opinion [language] => en [created] => 1420577421 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Dymon Investments, Inc. v. Welch (In re Welch), BAP No. NV-14-1079-HlPaJu (Jan. 5, 2015) [format] => [safe_value] => Dymon Investments, Inc. v. Welch (In re Welch), BAP No. NV-14-1079-HlPaJu (Jan. 5, 2015) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => AFFIRMING the decision below, the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion when it denied creditors' motion to reopen a closed chapter 7 case in order to conduct an examination under Federal Rule of Bankruptcy Procedure 2004. While there is no specified time period under section 350 of the Bankruptcy Code within which a motion to reopen must be filed, such a request must be made within a reasonable time, and what constitutes reasonableness is determined based on the totality of the circumstances. The longer a party waits to file a motion to reopen a closed bankruptcy case, the more compelling the reason to reopen must be. There was also nothing in the record to establish prima facie proof that the case was not fully administered, and reopening the case would have caused meaningful prejudice to debtors. [format] => [safe_value] => AFFIRMING the decision below, the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion when it denied creditors' motion to reopen a closed chapter 7 case in order to conduct an examination under Federal Rule of Bankruptcy Procedure 2004. While there is no specified time period under section 350 of the Bankruptcy Code within which a motion to reopen must be filed, such a request must be made within a reasonable time, and what constitutes reasonableness is determined based on the totality of the circumstances. The longer a party waits to file a motion to reopen a closed bankruptcy case, the more compelling the reason to reopen must be. There was also nothing in the record to establish prima facie proof that the case was not fully administered, and reopening the case would have caused meaningful prejudice to debtors. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Creditors moved to reopen debtors' closed chapter 7 case. The bankruptcy court denied the motion. This appeal ensued. [format] => [safe_value] => Creditors moved to reopen debtors' closed chapter 7 case. The bankruptcy court denied the motion. This appeal ensued. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => A complaint was filed in state court against Welch and others, asserting various causes of action, including fraud and breach of fiduciary duty based on defendants' alleged failure to contribute funds to certain companies, and for otherwise interfering with plaintiffs' efforts to refinance and sell certain real property owned by the companies. Debtors filed for chapter 7 relief on the eve of trial in that action. Two months after the case was closed, creditors filed a motion in the bankruptcy case for an order requiring debtors to appear for an examination under Rule 2004. Over five months later, creditors filed a motion to reopen the chapter 7 case. The record provided no explanation for the delay. In their motion to reopen, creditors alleged that there was cause to reopen the case to allow creditors to examine debtors under oath as to allegedly concealed assets that would be subject to liquidation and distribution to debtors' creditors. The bankruptcy court, finding that creditors had delayed in filing the motion to reopen and did not exercise other remedies, found lack of good cause to reopen the case and denied the motion. [format] => [safe_value] => A complaint was filed in state court against Welch and others, asserting various causes of action, including fraud and breach of fiduciary duty based on defendants' alleged failure to contribute funds to certain companies, and for otherwise interfering with plaintiffs' efforts to refinance and sell certain real property owned by the companies. Debtors filed for chapter 7 relief on the eve of trial in that action. Two months after the case was closed, creditors filed a motion in the bankruptcy case for an order requiring debtors to appear for an examination under Rule 2004. Over five months later, creditors filed a motion to reopen the chapter 7 case. The record provided no explanation for the delay. In their motion to reopen, creditors alleged that there was cause to reopen the case to allow creditors to examine debtors under oath as to allegedly concealed assets that would be subject to liquidation and distribution to debtors' creditors. The bankruptcy court, finding that creditors had delayed in filing the motion to reopen and did not exercise other remedies, found lack of good cause to reopen the case and denied the motion. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 7009 [uid] => 1 [filename] => dymon-investments-inc-v-welch-in-re-welch.pdf [uri] => s3://opinion_pdf/dymon-investments-inc-v-welch-in-re-welch.pdf [filemime] => application/pdf [filesize] => 89494 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => HOULE, PAPPAS, and JURY, Bankruptcy Judges [format] => [safe_value] => HOULE, PAPPAS, and JURY, Bankruptcy Judges ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 901 ) [1] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1578 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 1959 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 1330 ) ) ) [#weight] => 4 ) [713] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) [href] => node/713 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6493 [uid] => 573590 [title] => Hope 7 Monroe Street LP v. Riaso, LLC (In the Matter of Hope 7 Monroe Street LP) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 713 [type] => circuit_court_opinion [language] => en [created] => 1393626309 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 Monroe Street LP, U.S. Court of Appeals D.C. Cir., No. 12-7054 [February 28, 2014] [format] => [safe_value] => Hope 7 Monroe Street LP, U.S. Court of Appeals D.C. Cir., No. 12-7054 [February 28, 2014] ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => The Court of Appeals for the District of Columbia, held that the district court did not err in affirming the bankruptcy courts rulings. The district court's decision affirmed the ruling by the bankruptcy court to deny, appellants, Hope 7's motion to vacate all orders rendered in favor of RIASO, which were (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. /p/ The specific issue on appeal was whether appellant, Hope 7, had the standing to appeal these issues and whether the U.S. Court of Appeals has the jurisdiction to decide this case. The U.S. Court of Appeals held that they did have jurisdiction to decide all issue in the case and the supplemental briefing by appellant, Hope 7, did establish that they had standing to consider the appeal with regards to the order allowing RIASO's proof of claim and the order requiring proceeds from the sale of the estate to be paid to RIASO. However, their briefing failed to demonstrate that appellant had standing to appeal the courts ruling granting the motion to settle appellant's claims against RIASO. As the appellants did not have standing to challenge the courts order settling their claim against RIASO, the Court of Appeals dismissed this portion of the action and affirmed the district courts ruling on the remaining claims. [format] => [safe_value] => The Court of Appeals for the District of Columbia, held that the district court did not err in affirming the bankruptcy courts rulings. The district court's decision affirmed the ruling by the bankruptcy court to deny, appellants, Hope 7's motion to vacate all orders rendered in favor of RIASO, which were (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. /p/ The specific issue on appeal was whether appellant, Hope 7, had the standing to appeal these issues and whether the U.S. Court of Appeals has the jurisdiction to decide this case. The U.S. Court of Appeals held that they did have jurisdiction to decide all issue in the case and the supplemental briefing by appellant, Hope 7, did establish that they had standing to consider the appeal with regards to the order allowing RIASO's proof of claim and the order requiring proceeds from the sale of the estate to be paid to RIASO. However, their briefing failed to demonstrate that appellant had standing to appeal the courts ruling granting the motion to settle appellant's claims against RIASO. As the appellants did not have standing to challenge the courts order settling their claim against RIASO, the Court of Appeals dismissed this portion of the action and affirmed the district courts ruling on the remaining claims. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 petitioned the bankruptcy court pursuant to FRBP 9024 to vacate all orders rendered in favor of RIASO, which referred to (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. The bankruptcy court denied the motion. Hope 7 appealed to the district court, which affirmed the bankruptcy court’s decision on May 3, 2012. Hope 7 timely appealed to this court. [format] => [safe_value] => Hope 7 petitioned the bankruptcy court pursuant to FRBP 9024 to vacate all orders rendered in favor of RIASO, which referred to (1) the order approving the motion to sell Hope 7’s legal claims against RIASO, (2) the order overruling the objection to RIASO’s proof of claim, and (3) the order directing payment of RIASO’s claim from the proceeds of the sale of Hope 7’s real property. The bankruptcy court denied the motion. Hope 7 appealed to the district court, which affirmed the bankruptcy court’s decision on May 3, 2012. Hope 7 timely appealed to this court. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Hope 7 owned apartment units appraised for approximately $3.3 million that it wanted to convert to condominiums. The partnership asked Musse Leakemariam to help it obtain funds for the conversion. Leakemariam arranged for RIASO to lend $1.6 million to Hope 7 to refinance the partnership’s mortgage and serve as a bridge loan until a permanent construction loan could be arranged. The permanent financing never materialized, and Hope 7 was unable to repay the bridge loan to RIASO. After RIASO initiated foreclosure proceedings, Hope 7 filed a voluntary petition for Chapter 11 bankruptcy on April 2, 2009. The bankruptcy court converted the case to a Chapter 7 action and appointed a trustee. During a bankruptcy hearing in August 2009, Hope 7 learned Leakemariam was both the loan broker and the lender. In re Hope 7 Monroe St. Ltd. P’ship (Hope 7), No. 09-00273, 2011 WL 2619537, at *1, *7 (Bankr. D.D.C. July 1, 2011). Leakemariam had formed RIASO, made up of ten trusts benefitting Leakemariam’s family members, about a week before the bridge loan was made. RIASO’s only purpose was to make that loan. On November 6, 2009, Hope 7, along with Lenan and Pauline Cappel, its sole limited partners, filed a complaint against Leakemariam, RIASO, and Richard Boddie, RIASO’s attorney, in D.C. Superior Court. The plaintiffs alleged, inter alia, breach of fiduciary duty, fraud, and misrepresentation. /p/ RIASO filed a proof of claim in the bankruptcy court claiming Hope 7 owed it about $3 million. Hope 7 objected, arguing, among other grounds, RIASO and Leakemariam had engaged in fraudulent inducement to contract and had breached their fiduciary duty. The bankruptcy court overruled Hope 7’s objection and ordered the claim paid from the debtor’s estate. The trustee proposed to sell the estate’s interest in the Superior Court action to Boddie as a compromise of the claims, and the bankruptcy court approved the sale of the claims to Boddie for $30,000. On November 22, 2010, the court directed final distribution of the estate’s funds. On April 12, 2011, Hope 7 filed a motion pursuant to Federal Rule of Civil Procedure 60(b). [format] => [safe_value] => Hope 7 owned apartment units appraised for approximately $3.3 million that it wanted to convert to condominiums. The partnership asked Musse Leakemariam to help it obtain funds for the conversion. Leakemariam arranged for RIASO to lend $1.6 million to Hope 7 to refinance the partnership’s mortgage and serve as a bridge loan until a permanent construction loan could be arranged. The permanent financing never materialized, and Hope 7 was unable to repay the bridge loan to RIASO. After RIASO initiated foreclosure proceedings, Hope 7 filed a voluntary petition for Chapter 11 bankruptcy on April 2, 2009. The bankruptcy court converted the case to a Chapter 7 action and appointed a trustee. During a bankruptcy hearing in August 2009, Hope 7 learned Leakemariam was both the loan broker and the lender. In re Hope 7 Monroe St. Ltd. P’ship (Hope 7), No. 09-00273, 2011 WL 2619537, at *1, *7 (Bankr. D.D.C. July 1, 2011). Leakemariam had formed RIASO, made up of ten trusts benefitting Leakemariam’s family members, about a week before the bridge loan was made. RIASO’s only purpose was to make that loan. On November 6, 2009, Hope 7, along with Lenan and Pauline Cappel, its sole limited partners, filed a complaint against Leakemariam, RIASO, and Richard Boddie, RIASO’s attorney, in D.C. Superior Court. The plaintiffs alleged, inter alia, breach of fiduciary duty, fraud, and misrepresentation. /p/ RIASO filed a proof of claim in the bankruptcy court claiming Hope 7 owed it about $3 million. Hope 7 objected, arguing, among other grounds, RIASO and Leakemariam had engaged in fraudulent inducement to contract and had breached their fiduciary duty. The bankruptcy court overruled Hope 7’s objection and ordered the claim paid from the debtor’s estate. The trustee proposed to sell the estate’s interest in the Superior Court action to Boddie as a compromise of the claims, and the bankruptcy court approved the sale of the claims to Boddie for $30,000. On November 22, 2010, the court directed final distribution of the estate’s funds. On April 12, 2011, Hope 7 filed a motion pursuant to Federal Rule of Civil Procedure 60(b). ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6393 [uid] => 1 [filename] => hope-7-monroe-street-lp-v-riaso-llc-in-the-matter-of-hope-7-monroe-street-lp.pdf [uri] => s3://opinion_pdf/hope-7-monroe-street-lp-v-riaso-llc-in-the-matter-of-hope-7-monroe-street-lp.pdf [filemime] => application/pdf [filesize] => 55455 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Ginsburg, Henderson and Brown [format] => [safe_value] => Ginsburg, Henderson and Brown ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 916 ) [1] => Array ( [tid] => 894 ) [2] => Array ( [tid] => 897 ) [3] => Array ( [tid] => 920 ) [4] => Array ( [tid] => 898 ) [5] => Array ( [tid] => 928 ) [6] => Array ( [tid] => 921 ) [7] => Array ( [tid] => 930 ) [8] => Array ( [tid] => 901 ) [9] => Array ( [tid] => 906 ) [10] => Array ( [tid] => 910 ) [11] => Array ( [tid] => 911 ) [12] => Array ( [tid] => 944 ) [13] => Array ( [tid] => 913 ) [14] => Array ( [tid] => 914 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1448 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1583 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2075 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 713 ) ) ) [#weight] => 5 ) [513] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Hazelrigg v. United States Trustee (In re Hazelrigg) [href] => node/513 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Hazelrigg v. United States Trustee (In re Hazelrigg) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6293 [uid] => 573590 [title] => Hazelrigg v. United States Trustee (In re Hazelrigg) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 513 [type] => circuit_court_opinion [language] => en [created] => 1385072779 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => In re Hazelrigg, 9th Cir. B.A.P., WW-13-1230-TaDJu (November 19, 2013) [NOT FOR PUBLICATION] [format] => [safe_value] => In re Hazelrigg, 9th Cir. B.A.P., WW-13-1230-TaDJu (November 19, 2013) [NOT FOR PUBLICATION] ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => in an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court, to deny the debtor's (Thomas Hazelrigg) motion for reconsideration of the bankruptcy court's order granting the trustee's motion for summary judgment pursuant to § 727(a)(5). [format] => [safe_value] => in an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court, to deny the debtor's (Thomas Hazelrigg) motion for reconsideration of the bankruptcy court's order granting the trustee's motion for summary judgment pursuant to § 727(a)(5). ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor requesting documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, that were not scheduled or referenced in the Debtor’s amended schedules or SOFA. Debtor responded to the Subpoena (“Subpoena Response”), asserting a blanket Fifth Amendment privilege to the UST’s inquiry and did not produce any documentation. UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. [format] => [safe_value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor requesting documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, that were not scheduled or referenced in the Debtor’s amended schedules or SOFA. Debtor responded to the Subpoena (“Subpoena Response”), asserting a blanket Fifth Amendment privilege to the UST’s inquiry and did not produce any documentation. UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. Prior to this time, the Debtor was a well-known financier and businessman in the Seattle area. He also was an associate of an individual named Michael Mastro (“Mastro”). Mastro was formerly a major Seattle real estate developer and, like the Debtor, was involuntarily placed into chapter 7 bankruptcy. Other than stating his name and address on the petition and executing the documents, the schedules and SOFA were blank; the Debtor, instead, asserted a blanket Fifth Amendment privilege next to each signature block. The UST moved to compel the Debtor to file amended and complete schedules and a SOFA or to assert a Fifth Amendment privilege to each question. The bankruptcy court agreed and entered an order directing the Debtor to comply. He submitted a first and then a second set of amended schedules and a SOFA. The Debtor listed one vehicle in his amended Schedule B and disclosed that two cars were sold to Carmax approximately one or two years prior to petition; he did not describe these vehicles or provide any other details of the transactions. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor. In an attached document, the UST outlined a request for documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, assets neither scheduled nor otherwise referenced in the Debtor’s amended schedules or SOFA. Apparently, as part of the investigation in the Mastro bankruptcy case, the UST came into possession of a balance sheet dated July 31, 2008 (“Balance Sheet”),3 detailing the Debtor's assets (and their value) as of that date. Using this document, the UST expressly identified the following assets in the Subpoena: five luxury vehicles valued at $459,000; fees receivable valued at $1,145,500; and real estate owned personally and indirectly, valued at $49,956,350. The Debtor responded to the Subpoena (“Subpoena Response”), once again asserting a blanket Fifth Amendment privilege to the UST’s inquiry; he did not produce any documentation. In response, the UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). Among other things, the adversary complaint alleged that the Debtor owned the Assets in 2008, but failed to account for the transfer, disposition, or ownership of the Assets in the bankruptcy case. The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. [format] => [safe_value] => On October 31, 2011, creditors of the Debtor (Thomas Hazelrigg) commenced an involuntary Chapter 7 proceeding against him. Prior to this time, the Debtor was a well-known financier and businessman in the Seattle area. He also was an associate of an individual named Michael Mastro (“Mastro”). Mastro was formerly a major Seattle real estate developer and, like the Debtor, was involuntarily placed into chapter 7 bankruptcy. Other than stating his name and address on the petition and executing the documents, the schedules and SOFA were blank; the Debtor, instead, asserted a blanket Fifth Amendment privilege next to each signature block. The UST moved to compel the Debtor to file amended and complete schedules and a SOFA or to assert a Fifth Amendment privilege to each question. The bankruptcy court agreed and entered an order directing the Debtor to comply. He submitted a first and then a second set of amended schedules and a SOFA. The Debtor listed one vehicle in his amended Schedule B and disclosed that two cars were sold to Carmax approximately one or two years prior to petition; he did not describe these vehicles or provide any other details of the transactions. The UST issued a Rule 2004 document subpoena (“Subpoena”) to the Debtor. In an attached document, the UST outlined a request for documents regarding the transfer, disposition, or ownership of certain assets owned or previously owned by the Debtor, assets neither scheduled nor otherwise referenced in the Debtor’s amended schedules or SOFA. Apparently, as part of the investigation in the Mastro bankruptcy case, the UST came into possession of a balance sheet dated July 31, 2008 (“Balance Sheet”),3 detailing the Debtor's assets (and their value) as of that date. Using this document, the UST expressly identified the following assets in the Subpoena: five luxury vehicles valued at $459,000; fees receivable valued at $1,145,500; and real estate owned personally and indirectly, valued at $49,956,350. The Debtor responded to the Subpoena (“Subpoena Response”), once again asserting a blanket Fifth Amendment privilege to the UST’s inquiry; he did not produce any documentation. In response, the UST commenced an adversary proceeding against the Debtor, objecting to the Debtor’s discharge under § 727(a)(2), (a)(3), (a)(4), and (a)(5). Among other things, the adversary complaint alleged that the Debtor owned the Assets in 2008, but failed to account for the transfer, disposition, or ownership of the Assets in the bankruptcy case. The Debtor immediately sought dismissal of the adversary complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”). The UST subsequently moved for summary judgment (“MSJ”), but only as to the § 727(a)(3) and (a)(5) claims. The bankruptcy court denied summary judgment on the § 727(a)(3) claim, but granted summary judgment on the § 727(a)(5) claim. Debtor moved for reconsideration (“Motion to Reconsider”) on the § 727(a)(5) determination under Rule 9023. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6193 [uid] => 1 [filename] => hazelrigg-v-united-states-trustee-in-re-hazelrigg.pdf [uri] => s3://opinion_pdf/hazelrigg-v-united-states-trustee-in-re-hazelrigg.pdf [filemime] => application/pdf [filesize] => 40717 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => Hon. Randall L. Dunn, Hon. Laura S. Taylor, Hon. Meredith A. Jury [format] => [safe_value] => Hon. Randall L. Dunn, Hon. Laura S. Taylor, Hon. Meredith A. Jury ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 916 ) [1] => Array ( [tid] => 918 ) [2] => Array ( [tid] => 898 ) [3] => Array ( [tid] => 906 ) [4] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1407 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1638 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2043 ) [2] => Array ( [tid] => 2074 ) [3] => Array ( [tid] => 2020 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 513 ) ) ) [#weight] => 6 ) [429] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about Simon v. FIA Card Services, N.A. [href] => node/429 [html] => 1 [attributes] => Array ( [rel] => tag [title] => Simon v. FIA Card Services, N.A. ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 6209 [uid] => 521693 [title] => Simon v. FIA Card Services, N.A. [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 429 [type] => circuit_court_opinion [language] => en [created] => 1381174775 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => Simon v. FIA Card Services, N.A., No. 12-3293, 2013 WL 5508868 (3d Cir. Oct. 7, 2013) [format] => [safe_value] => Simon v. FIA Card Services, N.A., No. 12-3293, 2013 WL 5508868 (3d Cir. Oct. 7, 2013) ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => Affirming in part and reversing in part the dismissal of the Debtors’ claims under the Fair Debt Collection Practices Act (the “FDCPA”) and remanding the case back to the United States District Court for the District of New Jersey for consideration of whether the failure to comply with Rule 45 of the Federal Rules of Civil Procedure (“Federal Rule”) and Rule 9016 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) violated sections 1692e(5) and (13) of the FDCPA. Affirming the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Court of Appeals for the Third Circuit held that (a) failing to identify the recording method in the subpoenas for examinations under Bankruptcy Rule 2004 or (b) issuing the subpoenas from a district other than the one where the examinations were to be held did not violate Bankruptcy Rule 9016 or Federal Rule 45. Affirming the dismissal of the Debtors’ claims under section 1692e(11) of the FDCPA, the Third Circuit held that the “mini-Miranda” notice required under section 1692e(11) conflicts with the automatic stay provision of the Bankruptcy Code that forbids “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy case and such conflict precludes allowing a claim under section 1692e(11). Reversing the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Third Circuit held that (a) failure to serve the subpoenas directly on the individuals subpoenaed, as required by Federal Rule 45(b)(1), and (b) failure to include the text of Federal Rule 45(c)-(d) in the subpoenas, as required by Federal Rule 45(a)(1)(A)(iv), violated Federal Rule 45 and Bankruptcy Rule 9016. Following the Seventh Circuit’s approach, the Court of Appeals for the Third Circuit held that there is no categorical preclusion of the FDCPA claims when FDCPA claims arise from communications that a debt collector sends a debtor in a pending bankruptcy case that allegedly violate the Bankruptcy Code or Bankruptcy Rules. The Third Circuit concluded that the bankruptcy court’s authority to enforce compliance with the subpoena rules under the Bankruptcy Code does not conflict with finding liability under the FDCPA for violations based on a debt collector’s failure to comply with the subpoena rules. [format] => [safe_value] => Affirming in part and reversing in part the dismissal of the Debtors’ claims under the Fair Debt Collection Practices Act (the “FDCPA”) and remanding the case back to the United States District Court for the District of New Jersey for consideration of whether the failure to comply with Rule 45 of the Federal Rules of Civil Procedure (“Federal Rule”) and Rule 9016 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) violated sections 1692e(5) and (13) of the FDCPA. Affirming the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Court of Appeals for the Third Circuit held that (a) failing to identify the recording method in the subpoenas for examinations under Bankruptcy Rule 2004 or (b) issuing the subpoenas from a district other than the one where the examinations were to be held did not violate Bankruptcy Rule 9016 or Federal Rule 45. Affirming the dismissal of the Debtors’ claims under section 1692e(11) of the FDCPA, the Third Circuit held that the “mini-Miranda” notice required under section 1692e(11) conflicts with the automatic stay provision of the Bankruptcy Code that forbids “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy case and such conflict precludes allowing a claim under section 1692e(11). Reversing the dismissal of the Debtors’ claims under sections 1692e(5) and (13) of the FDCPA, the Third Circuit held that (a) failure to serve the subpoenas directly on the individuals subpoenaed, as required by Federal Rule 45(b)(1), and (b) failure to include the text of Federal Rule 45(c)-(d) in the subpoenas, as required by Federal Rule 45(a)(1)(A)(iv), violated Federal Rule 45 and Bankruptcy Rule 9016. Following the Seventh Circuit’s approach, the Court of Appeals for the Third Circuit held that there is no categorical preclusion of the FDCPA claims when FDCPA claims arise from communications that a debt collector sends a debtor in a pending bankruptcy case that allegedly violate the Bankruptcy Code or Bankruptcy Rules. The Third Circuit concluded that the bankruptcy court’s authority to enforce compliance with the subpoena rules under the Bankruptcy Code does not conflict with finding liability under the FDCPA for violations based on a debt collector’s failure to comply with the subpoena rules. ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The United States District Court for the District of New Jersey dismissed the Debtors’ complaint for liability under sections 1692e(5), (11), and (13) of the FDCPA under Federal Rule 12(b)(6). The district court held that the Bankruptcy Code provided the exclusive remedy for the alleged violations and precluded the Debtors’ claims under the FDCPA. The district court also held that even if claims under the FDCPA were not precluded, the Debtors’ complaint did not allege sufficient facts to state a claim. The Debtors appealed the district court’s decision. Addressing an issue of first impression of whether communications that a debt collector sends a debtor during a pending bankruptcy case (i.e., sending a letter and notice offering to settle a debt and requesting an examination under Bankruptcy Rule 2004) can give rise to a claim under the FDCPA, the Court of Appeals for the Third Circuit affirmed in part, reversed in part, and remanded. [format] => [safe_value] => The United States District Court for the District of New Jersey dismissed the Debtors’ complaint for liability under sections 1692e(5), (11), and (13) of the FDCPA under Federal Rule 12(b)(6). The district court held that the Bankruptcy Code provided the exclusive remedy for the alleged violations and precluded the Debtors’ claims under the FDCPA. The district court also held that even if claims under the FDCPA were not precluded, the Debtors’ complaint did not allege sufficient facts to state a claim. The Debtors appealed the district court’s decision. Addressing an issue of first impression of whether communications that a debt collector sends a debtor during a pending bankruptcy case (i.e., sending a letter and notice offering to settle a debt and requesting an examination under Bankruptcy Rule 2004) can give rise to a claim under the FDCPA, the Court of Appeals for the Third Circuit affirmed in part, reversed in part, and remanded. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => On December 30, 2010, Robert Maxwell Simon and Stacey Helene Simon (the “Debtors”) filed for bankruptcy protection under chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey. The Debtors’ schedules identified an unsecured, non-priority claim for credit-card debt owed to Bank of America (now FIA Card Services, N.A. (“FIA”)). FIA retained Weinstein & Riley, P.S. (“W&R”) to represent it in the Debtors’ bankruptcy case. On January 28, 2011, W&R sent a letter to the Debtors through their bankruptcy counsel along with a notice of the Debtors’ examinations under Bankruptcy Rule 2004. The letter mentioned that FIA was considering filing an adversary proceeding under section 523 of the Bankruptcy Code to challenge the dischargeability of the Debtors’ debt due to FIA and included an offer to forego filing of the adversary proceeding if the Debtors agreed to either (a) stipulate that the debt was nondischargeable or (b) pay a reduced amount to settle the debt. The letter also stated that an examination under Bankruptcy Rule 2004 had been scheduled and contained additional information about how to challenge the debt. Attached to the letter was a notice identifying the date and time for the Debtors’ examinations and requesting production of certain documents for the examinations. The Debtors filed a motion to quash the notice for examinations under Bankruptcy Rule 2004 because it failed to comply with the subpoena requirements under Bankruptcy Rule 9016 and Federal Rule 45. Further, the Debtors filed an adversary proceeding asserting claims against FIA and W&R under sections 1692e(5), (11), and (13) of the FDCPA. Specifically, the Debtors alleged that by sending the letter and notice, W&R and FIA violated sections 1692e(5) and (13) in four ways by: 1. intentionally failing to send the letter and subpoena to the Debtors and instead sending the documents to their bankruptcy counsel and therefore violating Federal Rule 45(b)(1)'s requirement that subpoenas be served directly on the individuals subpoenaed; 2. specifying the location for the Bankruptcy Rule 2004 examinations as the office of W&R in New York, rather than in New Jersey and therefore violating Federal Rule 45(a)(2)(B)'s requirement that a subpoena be issued “from the court for the district where the deposition is to be taken”; 3. failing to include in the subpoena the text of Federal Rule 45(c) and (d), as required under Federal Rule 45(a)(l)(A)(iv); and 4. failing to include in the subpoena the method of recording the Bankruptcy Rule 2004 examinations, as required under Federal Rule 45(a)(1)(B). Further, the Debtors alleged that W&R violated section 1692e(11) of the FDCPA by failing to include the “mini-Miranda ” warning that a debt collector must provide in the initial communication with the debtor that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” The bankruptcy court quashed the notices under Bankruptcy Rule 2004 but ruled that it lacked subject-matter jurisdiction over the FDCPA claims and dismissed them without prejudice. The Debtors filed a lawsuit against FIA and W&R in the United States District Court for the District of New Jersey alleging that the letters and subpoenas violated the FDCPA prohibition on false, deceptive, and misleading debt-collection practices under 15 U.S.C. § 1692e(5), (11), and (13). FIA and W&R filed a motion to dismiss on three grounds: (1) the FDCPA claim was precluded by the Bankruptcy Court's earlier dismissal of the Debtors’ adversary proceeding; (2) the Debtors’ complaint failed to state a claim; and (3) the allegations from which the FDCPA claims arose were governed exclusively by the Bankruptcy Code. The District Court dismissed the FDCPA suit, with prejudice, stating that the FDCPA claims were precluded by the Bankruptcy Code and that the complaint failed to set forth sufficient factual allegations to state a claim under the FDCPA. The Debtors appealed the order dismissing their complaint. [format] => [safe_value] => On December 30, 2010, Robert Maxwell Simon and Stacey Helene Simon (the “Debtors”) filed for bankruptcy protection under chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey. The Debtors’ schedules identified an unsecured, non-priority claim for credit-card debt owed to Bank of America (now FIA Card Services, N.A. (“FIA”)). FIA retained Weinstein & Riley, P.S. (“W&R”) to represent it in the Debtors’ bankruptcy case. On January 28, 2011, W&R sent a letter to the Debtors through their bankruptcy counsel along with a notice of the Debtors’ examinations under Bankruptcy Rule 2004. The letter mentioned that FIA was considering filing an adversary proceeding under section 523 of the Bankruptcy Code to challenge the dischargeability of the Debtors’ debt due to FIA and included an offer to forego filing of the adversary proceeding if the Debtors agreed to either (a) stipulate that the debt was nondischargeable or (b) pay a reduced amount to settle the debt. The letter also stated that an examination under Bankruptcy Rule 2004 had been scheduled and contained additional information about how to challenge the debt. Attached to the letter was a notice identifying the date and time for the Debtors’ examinations and requesting production of certain documents for the examinations. The Debtors filed a motion to quash the notice for examinations under Bankruptcy Rule 2004 because it failed to comply with the subpoena requirements under Bankruptcy Rule 9016 and Federal Rule 45. Further, the Debtors filed an adversary proceeding asserting claims against FIA and W&R under sections 1692e(5), (11), and (13) of the FDCPA. Specifically, the Debtors alleged that by sending the letter and notice, W&R and FIA violated sections 1692e(5) and (13) in four ways by: 1. intentionally failing to send the letter and subpoena to the Debtors and instead sending the documents to their bankruptcy counsel and therefore violating Federal Rule 45(b)(1)'s requirement that subpoenas be served directly on the individuals subpoenaed; 2. specifying the location for the Bankruptcy Rule 2004 examinations as the office of W&R in New York, rather than in New Jersey and therefore violating Federal Rule 45(a)(2)(B)'s requirement that a subpoena be issued “from the court for the district where the deposition is to be taken”; 3. failing to include in the subpoena the text of Federal Rule 45(c) and (d), as required under Federal Rule 45(a)(l)(A)(iv); and 4. failing to include in the subpoena the method of recording the Bankruptcy Rule 2004 examinations, as required under Federal Rule 45(a)(1)(B). Further, the Debtors alleged that W&R violated section 1692e(11) of the FDCPA by failing to include the “mini-Miranda ” warning that a debt collector must provide in the initial communication with the debtor that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” The bankruptcy court quashed the notices under Bankruptcy Rule 2004 but ruled that it lacked subject-matter jurisdiction over the FDCPA claims and dismissed them without prejudice. The Debtors filed a lawsuit against FIA and W&R in the United States District Court for the District of New Jersey alleging that the letters and subpoenas violated the FDCPA prohibition on false, deceptive, and misleading debt-collection practices under 15 U.S.C. § 1692e(5), (11), and (13). FIA and W&R filed a motion to dismiss on three grounds: (1) the FDCPA claim was precluded by the Bankruptcy Court's earlier dismissal of the Debtors’ adversary proceeding; (2) the Debtors’ complaint failed to state a claim; and (3) the allegations from which the FDCPA claims arose were governed exclusively by the Bankruptcy Code. The District Court dismissed the FDCPA suit, with prejudice, stating that the FDCPA claims were precluded by the Bankruptcy Code and that the complaint failed to set forth sufficient factual allegations to state a claim under the FDCPA. The Debtors appealed the order dismissing their complaint. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 6109 [uid] => 1 [filename] => simon-v-fia-card-services-na.pdf [uri] => s3://opinion_pdf/simon-v-fia-card-services-na.pdf [filemime] => application/pdf [filesize] => 357611 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => The Honorable Lee H. Rosenthal, the United States District Court for the Southern District of Texas, sitting by designation [format] => [safe_value] => The Honorable Lee H. Rosenthal, the United States District Court for the Southern District of Texas, sitting by designation ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 891 ) [1] => Array ( [tid] => 915 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1335 ) ) ) [field_bankruptcy_code] => Array ( [und] => Array ( [0] => Array ( [tid] => 1582 ) [1] => Array ( [tid] => 1603 ) ) ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) [1] => Array ( [tid] => 2067 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => [email protected] [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 429 ) ) ) [#weight] => 7 ) [3219] => Array ( [#pre_render] => Array ( [0] => _field_extra_fields_pre_render ) [#entity_type] => node [#bundle] => circuit_court_opinion [links] => Array ( [#theme] => links__node [#pre_render] => Array ( [0] => drupal_pre_render_links ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) [node] => Array ( [#theme] => links__node__node [#links] => Array ( [node-readmore] => Array ( [title] => Read more about La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) [href] => node/3219 [html] => 1 [attributes] => Array ( [rel] => tag [title] => La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) ) ) ) [#attributes] => Array ( [class] => Array ( [0] => links [1] => inline ) ) ) ) [#view_mode] => teaser [#theme] => node [#node] => stdClass Object ( [vid] => 8999 [uid] => 524817 [title] => La Tierra Interiors, Inc. v. Washington Federal Savings (In re Tullius) [log] => [status] => 1 [comment] => 0 [promote] => 0 [sticky] => 0 [nid] => 3219 [type] => circuit_court_opinion [language] => en [created] => 1355247390 [changed] => 1479843695 [tnid] => 0 [translate] => 0 [revision_timestamp] => 1479843695 [revision_uid] => 1 [field_citation] => Array ( [und] => Array ( [0] => Array ( [value] => No. 11-51167, Pursuant to 5TH CIR. R. 47.5, not for publication. [format] => [safe_value] => No. 11-51167, Pursuant to 5TH CIR. R. 47.5, not for publication. ) ) ) [field_ruling] => Array ( [und] => Array ( [0] => Array ( [value] => DISMISSED the appeal for lack of jurisdiction, concluding that bankruptcy court's discovery order was interlocutory, and the district court's order (dismissing the appeal from the bankruptcy court) did not "cure" the non-finality such that the Fifth Circuit would have jurisdiction over the appeal. The Court explained that federal courts have concluded "overwhelmingly" there is no right to appeal bankruptcy courts' interlocutory discovery orders. The Court also explained that the "collateral order" doctrine did not apply to the facts of this case because the appellants could have obtained the effective review by appealling the now-final plan confirmation order, had they objected to confirmation (which they apparently did not). [format] => [safe_value] => DISMISSED the appeal for lack of jurisdiction, concluding that bankruptcy court's discovery order was interlocutory, and the district court's order (dismissing the appeal from the bankruptcy court) did not "cure" the non-finality such that the Fifth Circuit would have jurisdiction over the appeal. The Court explained that federal courts have concluded "overwhelmingly" there is no right to appeal bankruptcy courts' interlocutory discovery orders. The Court also explained that the "collateral order" doctrine did not apply to the facts of this case because the appellants could have obtained the effective review by appealling the now-final plan confirmation order, had they objected to confirmation (which they apparently did not). ) ) ) [field_procedural_context] => Array ( [und] => Array ( [0] => Array ( [value] => The bankrutpcy court denied appellants' motion to compel discovery, and the movants/appellants appealed to the district court, which dismissed the appeal for lack of jurisdiction because the bankruptcy court's order was interlocutory. Appellants sought appeal of the district court's dismissal order to the Fifth Circuit. [format] => [safe_value] => The bankrutpcy court denied appellants' motion to compel discovery, and the movants/appellants appealed to the district court, which dismissed the appeal for lack of jurisdiction because the bankruptcy court's order was interlocutory. Appellants sought appeal of the district court's dismissal order to the Fifth Circuit. ) ) ) [field_facts] => Array ( [und] => Array ( [0] => Array ( [value] => Appellants were creditors in the chapter 13 bankruptcy case who were suspicious of transfers from the debtor to a non-debtor third party. Through Rule 2004, the appellants attempted to subpoena bank records from Washington Federal Savings (WFS), the institution where the alleged recipient of fraudulent transfers maintained his deposits. WFS moved to quash the appellants' subpoena, and the bankruptcy court granted the motion, in part, limiting the scope of discovery and requiring appellants to pre-pay the costs to respond to the appellants subpoena. A month later, the appellants filed a motion to compel WFS to produce the requested documents and broaden the scope from the bankrutpcy court's prior order. The bankrutpcy court denied the motion, concluding that appellants failed to take steps necessary to avoid imposing an undue burden on WFS, and that appellants were merely trying to re-litigate the issue addressed at the prior hearing. Appellants appealed the order to the district court, which dismissed the appeal for lack of jurisdiction. [format] => [safe_value] => Appellants were creditors in the chapter 13 bankruptcy case who were suspicious of transfers from the debtor to a non-debtor third party. Through Rule 2004, the appellants attempted to subpoena bank records from Washington Federal Savings (WFS), the institution where the alleged recipient of fraudulent transfers maintained his deposits. WFS moved to quash the appellants' subpoena, and the bankruptcy court granted the motion, in part, limiting the scope of discovery and requiring appellants to pre-pay the costs to respond to the appellants subpoena. A month later, the appellants filed a motion to compel WFS to produce the requested documents and broaden the scope from the bankrutpcy court's prior order. The bankrutpcy court denied the motion, concluding that appellants failed to take steps necessary to avoid imposing an undue burden on WFS, and that appellants were merely trying to re-litigate the issue addressed at the prior hearing. Appellants appealed the order to the district court, which dismissed the appeal for lack of jurisdiction. ) ) ) [field_opinion_pdf] => Array ( [und] => Array ( [0] => Array ( [fid] => 8892 [uid] => 1 [filename] => la-tierra-interiors-inc-v-washington-federal-savings-in-re-tullius.pdf [uri] => s3://opinion_pdf/la-tierra-interiors-inc-v-washington-federal-savings-in-re-tullius.pdf [filemime] => application/pdf [filesize] => 87249 [status] => 1 [timestamp] => 1479843695 [rdf_mapping] => Array ( ) [display] => 1 [description] => ) ) ) [field_judges] => Array ( [und] => Array ( [0] => Array ( [value] => WIENER, CLEMENT, and PRADO [format] => [safe_value] => WIENER, CLEMENT, and PRADO ) ) ) [field_bankruptcy_topics] => Array ( [und] => Array ( [0] => Array ( [tid] => 910 ) ) ) [field_judicial_court] => Array ( [und] => Array ( [0] => Array ( [tid] => 1356 ) ) ) [field_bankruptcy_code] => Array ( ) [field_bankruptcy_rule] => Array ( [und] => Array ( [0] => Array ( [tid] => 1894 ) ) ) [field_not_worthy] => Array ( [und] => Array ( [0] => Array ( [value] => [format] => [safe_value] => ) ) ) [field_rochelle_quick_take] => Array ( ) [field_rdw_link] => Array ( ) [field_case_updated_date] => Array ( ) [field_case_date] => Array ( ) [field_case_number] => Array ( ) [field_publication] => Array ( ) [field_case_type] => Array ( ) [field_case_status] => Array ( ) [rdf_mapping] => Array ( [rdftype] => Array ( [0] => sioc:Item [1] => foaf:Document ) [title] => Array ( [predicates] => Array ( [0] => dc:title ) ) [created] => Array ( [predicates] => Array ( [0] => dc:date [1] => dc:created ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [changed] => Array ( [predicates] => Array ( [0] => dc:modified ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) [body] => Array ( [predicates] => Array ( [0] => content:encoded ) ) [uid] => Array ( [predicates] => Array ( [0] => sioc:has_creator ) [type] => rel ) [name] => Array ( [predicates] => Array ( [0] => foaf:name ) ) [comment_count] => Array ( [predicates] => Array ( [0] => sioc:num_replies ) [datatype] => xsd:integer ) [last_activity] => Array ( [predicates] => Array ( [0] => sioc:last_activity_date ) [datatype] => xsd:dateTime [callback] => date_iso8601 ) ) [name] => AKAUFMAN [picture] => 0 [data] => N; [entity_view_prepared] => 1 ) [#language] => en [#contextual_links] => Array ( [node] => Array ( [0] => node [1] => Array ( [0] => 3219 ) ) ) [#weight] => 8 ) [#sorted] => 1 ) [pager] => Array ( [#theme] => pager [#weight] => 5 ) ) [1] => ) ) [15] => Array ( [file] => /var/www/html/volo/index.php [line] => 21 [function] => menu_execute_active_handler [args] => Array ( ) ) ) [previous:Exception:private] => [errorInfo] => Array ( [0] => 23000 [1] => 1062 [2] => Duplicate entry '' for key 'name' ) [query_string] => INSERT INTO {users} (uid, name, mail, created, changed, data) VALUES (:db_insert_placeholder_0, :db_insert_placeholder_1, :db_insert_placeholder_2, :db_insert_placeholder_3, :db_insert_placeholder_4, :db_insert_placeholder_5) [args] => Array ( [:db_insert_placeholder_0] => 616090 [:db_insert_placeholder_1] => [:db_insert_placeholder_2] => [:db_insert_placeholder_3] => 1670484436 [:db_insert_placeholder_4] => 1670484436 [:db_insert_placeholder_5] => N; ) )