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Summarizing by Amir Shachmurove

Davin v. Johnson (In re Calderon)

BAP Case No. EC-13-1010-JuKiPa (October 28, 2013)
In the unpublished decision, the BAP affirmed the bankruptcy court’s order denying his motion for leave to file a late proof of claim (POC) and a complaint for 11 U.S.C. § 523 nondischargeability or, alternatively, to deny chapter 13 debtor, Janessa Lee Price, her discharge under 11 U.S.C. § 727. The BAP reached its decision based on (creditor-appellant) Davin's attorney receipt of actual notice of the bankruptcy via the noticed filed in the state court matter. Moreover, the 9th Circuit case law provides that even if the creditor was not properly listed in the debtors' schedule, but the Creditor obtains information about the pending bankruptcy, the creditor has a duty to inquire into the relevant deadlines. Therefore, Davin's attorney's receipt of actual notice is imputed onto Davin. In regards to the disallowance of Davin's POC, Davin's attorney's notice of appearance was filed prior to the bar date to file a POC; therefore, there was time for Davin to file his POC.
Procedural context:
Creditor-appellant, Davin, appealed the bankruptcy court's decision disallowing Davin's POC as being time barred and denying Davin's request to enlarge the time in which to challenge the Debtors' discharge pursuant to 11 U.S.C. § 523.
In 2007 creditor-appellant ("Davin") entered into an agreement to purchase from the Joint Debtor ("Lee") Interpretative Consulting Services ("ICS") for $1.5 million; however, Davin would only have to pay $1 million to acquire ICS if Davin remitted the funds within 1 year of the agreement date. After entering in the the Agreement Davin took control of the daily operations of ICS. Between 2007 and 2010 a dispute arose between Davin and Lee, which resulted in Davin filing suit against Lee in State Court. The Debtors filed for relief under Chapter 13 in June 2011. Debtors listed Davin as a creditor and the mailing address set forth on the Debtors' Schedules was Davin's personal residence. Price's State Court attorney served Davin's state court attorney a copy of the Notice of Stay of Proceedings in the related state court matter. On August 2011 the bankruptcy court dismissed the Debtors' Chapter 13. On September 2011 Davin's state court attorney notified the state court of the bankruptcy case being dismissed. On March 2012, the Debtors filed a second Chapter 13 case in which this appeal arises from. The Debtors' second bankruptcy again listed Davin as a creditor; however, this time it lists Davin's mailing address in care of Davin's state court attorney's prior office mailing address; and, Debtors' bankruptcy counsel served the second Notice of Stay of Proceedings to the same address the Debtors' set forth in their Schedules. As a result the bankruptcy court's notice(s) of the meeting of creditors and bar date in which to file a POC were mailed to Davin's state court's attorney's prior mailing address. The bar date to file a POC was August 8, 2012. The Clerk of the bankruptcy court notified the Debtors' bankruptcy counsel that the mailings to Davin's state court attorney were returned as undeliverable. On July 9, 2012 the bar date expired for creditors to file nondischargeability claims against the Debtors. On November 2012 Davin's counsel sought leave to file a late POC and complaint pursuant to 11 U.S.C. § 523. Debtors' counsel opposed the motion on the basis that Davin received actual and/or constructive notice of the bankruptcy. The bankruptcy court denied Davin's motion for leave based on Davin's attorney's address still being identified as the one utilized in the Schedules pursuant to the state court docket and no notice previously being provided by Davin's attorney of hismailing address being changed.

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