In re James G.Herman; Appeal of John P. Miller

Summarized by Paul Lucey , Leverson Lucey & Metz, S.C.
12 years 3 months ago

Citation:

In re James G.Herman, Case No. 13-1186 (7th Cir. Nov. 26, 2013)

Tag(s):

Ruling:

Timely and proper notice of the commencement of the debtor's bankruptcy case to an attorney who was representing a creditor with respect to the creditor's claims against the debtor can be imputed to the creditor as constructive notice. Thus, the bankruptcy and district courts did not abuse their discretion in denying creditor's motion to reopen the case to permit creditor to seek an exception to the discharge.

Procedural context:

Appeal from the bankruptcy court's order, affirmed by the district court, denying creditor's motion to reopen the case to permit creditor to seek an exception to the discharge on the grounds that creditor did not receive proper notice of the commencement of the debtor's case.

Facts:

Creditor's pre-petition suit in federal court against debtor for statutory fraud was dismissed without prejudice for lack of jurisdiction. Before creditor could refile in state court, debtor filed a Chapter 7 petition, scheduling creditor's claim and adding the name and address of creditor's collection attorney to debtor's mailing matrix. Attorney's office received notice of the case but attorney never saw it. Attorney later discovered that the case was pending and notified creditor one month prior to deadline for filing non-dischargeability complaints. Creditor took no action until a year after the discharge was granted, then moving to reopen the case under 11 U.S.C. Secs. 727(a)(4)(A) and 523(a).

Judge(s):

Wood, Chief Judge, Bauer and Flaum, Circuit Judges

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