Good v. Daff (In re Swintek)

Citation:
B.A.P. no. CC-14-1569-KiTaKu
Tag(s):
Ruling:
11 U.S.C. § 108(c) tolls the one-year expiration period of an "Order for Appearance and Examination' ("ORAP") lien as set forth in CCC § 708.110. The granting of a discharge to the debtor, which terminated the automatic stay, did not render the appeal moot because the Chapter 7 trustee was still holding estate funds that had not been abandoned. Remand to the Bankruptcy Court to determine if the alleged ORAP lien was valid in the first instance, i.e., whether it had been properly served on the debtor.
Procedural context:
Appeal of Bankruptcy Court order granting summary judgment to the Chapter Trustee holding that 11 U.S.C. § 108(c) did not toll the one-year expiration period and because the ORAP lien had been in effect for more than one year before the creditor filed the adversary proceeding, the ORAP lien had expired.
Facts:
Creditor (the only creditor in the case), an assignee of initial judgement creditors, began collection activity against Debtor. This included (a) levy on accounts which produced about $67,000 and (b) allegedly obtaining the ORAP, which, if effective, created a lien on all of the judgment debtor's personal property. Debtor filed Chapter 7 and successfully avoided $21,725 of the ORAP lien because it impaired an exemption. Creditor and Chapter 7 Trustee then engaged in litigation as to the enforcability of the ORAP lien. Issue was a legal one, whether the lien had expired or was tolled by § 108(c).
Judge(s):
Kirscher, Taylor & Kurtz

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