Frates v. Wells Fargo Bank, N.A. (In re Frates)

Summarized by Vikas Kumar , The Capitol Forum
11 years 11 months ago

Citation:

Frates v. Wells Fargo Bank, N.A., Case No. NC-13-1366-JuKiD (B.A.P. 9th Cir. 2013) (published)

Tag(s):

Ruling:

The Debtors satisfied procedural due process requirements by serving their motion and notice of motion to avoid the judicial lien of Wells Fargo in accordance with the Federal Rules of Bankruptcy Procedure, and compliance with § 684.010 is not required for lien avoidance motions.

Procedural context:

The Debtors appealed the bankruptcy court's denial of the Debtors' request for entry of order by default on the Debtors' motion to avoid Wells Fargo's judicial lien.

Facts:

The Bankruptcy Court denied the Debtors' first motion to avoid Wells Fargo's judicial lien without prejudice. The Debtors filed a second motion to avoid judicial lien. The Debtors served the second motion and notice of the second motion by certified mail addressed to the attention of Wells Fargo's CEO and the attention of the individual who signed the proof of claim on behalf of Wells Fargo. The Debtors did not serve their second motion to avoid judicial lien on the attorney for Wells Fargo listed on the abstract of judgment. The bankruptcy court denied the Debtors' motion for entry of default, finding that the notice was defective because it did not identify the real property which was the subject of the motion and the motion was not served on counsel listed on the abstract of judgment as required pursuant to CCP § 684.010. The Debtors appealed the bankruptcy court's decision.

Judge(s):

Jury, Kirscher, and Dunn

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