![]() ![]() ![]() The adversary complaint failed to state how that "omission" relates to any material fact. The adversary complaint failed to detail how the alleged false oath relates to any material fact, other than the fact that the creditor was not listed. And the false oath must relate to a material fact. The adversary complaint merely made conclusory allegations without any showing of the four elements discussed. ![]() Because the creditor was objecting to the discharge of the Debtor they bear the burden of proving by a preponderance of the evidence that the discharge should be denied as the Court construe § 727 liberally in favor of debtors and strictly against the party objecting to discharge. Relief is unnecessary because if the omitted debt is dischargeable, it was already discharged. The Debtor also contended that the Complaint failed to state a claim for relief as it also failed to state facts sufficient to show that (1) the debtor made the representations, e.g., a false statement or omission in bankruptcy schedules (2) at the time he knew they were false and (3) he made them with the intention and purpose of deceiving the creditors.įinally, the Debtor also contended that had the creditor waited until after the bankruptcy case was closed they would not be entitled to have the case re-opened because relief would be unnecessary as case law in the Ninth Circuit is clear that reopening to add an omitted creditor is not necessary in a Chapter 7 "no asset/no bar date" case where the court sends a notice directing creditors not to file a proof of claim. The Debtor denied that the failure to list the creditor was deliberate or done with fraudulent intent The Debtor filed a motion to dismiss and contended that the Complaint fails to state a claim for relief as it fails to state facts sufficient to show that: (1) the debtor made a false oath in connection with the case (2) the oath related to a material fact (3) the oath was made knowingly and (4) the oath was made fraudulently. Unfortunately an unsecured judgment creditor was omitted from the bankruptcy petition. And the Chapter 7 Trustee filed their Final Report under FRBP 5009 which stated that there was no property available for distribution, in other words a no-asset case. ![]() The Debtor in the case filed a voluntary Petition for bankruptcy pursuant to Chapter 7 of the U.S. § 727(a)(4) due to an alleged false oath by the Debtor in that they failed to list the creditor. The adversary complaint requested a denial of discharge under 11 U.S.C. The motion is made on the grounds that the adversary complaint fails to state a claim for relief.Ĭonsider a hypothetical example of a case in which a creditor filed an adversary complaint alleging that the Debtor deliberately failed to list the creditor on their bankruptcy schedules. The motion to dismiss is made pursuant to Federal Rules of Bankruptcy Procedure 7012(b)(6), ("FRBP") which is the section used in Bankruptcy Court instead of the Federal Rules of Civil Procedure 12(b)(6). A motion to dismiss an adversary complaint under section 727 is the topic of this blog post.Ī motion to dismiss an adversary complaint under section 727 is filed in United States Bankruptcy Court on the grounds that the adversary complaint fails to state a claim for relief.Īn adversary complaint under section 727 requests a denial of discharge in United States Bankruptcy Court under Title 11 United States Code section 727. ![]()
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