- Case Type:
- Case Status:
- Reversed and Remanded
- BAP No. CO-18-085 (10th Circuit, Mar 05,2019) Not Published
- BAP for 10th Circuit reversed and remanded bankruptcy court (D. Colo.) order denying debtor's motion to reopen chapter 7 case to seek relief from an alleged discharge violation. Bankruptcy court abused discretion by denying motion to reopen without considering whether relief could be afforded to the debtor in a reopened case in the form of damages. If a creditor attempts to collect a debt as a personal liability after the debt has been discharged, a potentially sanctionable discharge violation has occurred regardless of whether the creditor continues to pursue collection of the debt.
- Procedural context:
- Bankruptcy court (D. Colo.) denied debtor's motion to reopen chapter 7 case. Debtor appealed to BAP for 10th Circuit.
- Debtor filed chapter 7 case in 2010 and received discharge four months later. Mortgage holder ("Chase") foreclosed its deeds of trust and obtained an in rem foreclosure judgment in 2014. Debtor appealed foreclosure to the Colorado Court of Appeals, but unsuccessfully sought a stay pending appeal. Debtor's residence sold at foreclosure sale in January 2016. Debtor's appeal continued. Chase moved for award of attorney's fees for defending appeal. Court of Appeals affirmed foreclosure sale and granted motion for fees and costs incurred in appeal. Court of Appeals remanded to trial court to determine amount of fees and costs. Chase elected not to pursue fees and costs. Debtor moved to reopen bankruptcy to seek contempt sanctions against Chase for pursuing and obtaining attorney fee award notwithstanding debtor's discharge.
- Cornish, Jacobvitz, Mosier
Dekhtyar v. Chernyavsky (In re Dekhtyar)
Summarizing by Bradley Pearce
2867 in the system
1 Being Processed