Did you know that with electronic filing the timing may cause a lack of notice to creditors and the court may try to discharge your FLINT bankruptcy?
BANKRUPTCY FLINT ,ATTORNEY POSTING BY Flint Bankruptcy Lawyer Terry R. Bankert 810-235-1970.[Comments of Flint Bankruptcy lawyer Terry R.Bankert ,810-235-1970 ,in bracket or CAP headlines. If you have bankruptcy questions call today-trb.810-235-1970]
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION,In re: Case No. 08-70062,JOHN S. WARD, Chapter 7
Debtor. Judge Thomas J. Tucker. Filed 03/16/11 13:47:45
HERE IS AN ORDER DISSOLVING A SHOW CAUSE ORDER, BUT ALLOWING CREDITORS TIME TO FILE ADVERSARY PROCEEDING(S) OBJECTING TO DEBTOR’S DISCHARGE AND/OR SEEKING A DETERMINATION THAT A DEBT IS NON-DISCHARGEABLE UNDER 11 U.S.C. §§ 523(a)(2),523(a)(4), OR 523(a)(6), AND SETTING A DEADLINE FOR SAME
DEBTOR SHOW CAUSE ORDER
This case came before the Court for a hearing on March 16, 2011, on the Court’s showcause order entitled “Order Requiring Debtor to Appear and Show Cause
WHAT YOU MIGHT THINK IS A TECHNICAL GLITCH CAN GET YOUR CASE DISMISSED.
Why the Court Should Not Vacate the Discharge Order, Based on Debtor’s Incorrect Uploading of the Creditor Matrix ” (Docket # 31).
DID YOU KNOW YOU DO NOT HAVE TO ANSWER A SHOW CAUSE MOTION
Though not required to do so, the Debtor filed a written response to the showcause order, on March 8, 2011 (Docket # 32), which the Court has reviewed.
DEBTOR DID NOT SHOW UP FOR HEARING
Debtor failed to appear at the March 16 hearing, however, either in person or through his attorney. The Court is entering this Order for the reasons stated below.
ELECTRONIC FILING OF PETITION
On December 9, 2008, Debtor (through his attorney) electronically filed a voluntary petition for relief under Chapter 7, initiating this case.
64 MINUETES LATER MATRIX FILED
Also on December 9, 2008, 64 minutes after filing the petition, Debtor’s attorney electronically uploaded the creditor mailing matrix for this case.
BETWEEN THE TWO AUTOMATICLY GENERATED NOTICE CREATED
However, in between the time of filing of the petition and the uploading of the creditor matrix (specifically, 44 minutes after the petition was filed, and 20 minutes before the creditor matrix was uploaded,) the Court’s CM/ECF system automatically generated and filed the notice entitled “Notice of Chapter 7 Bankruptcy Case, Meeting of Creditor, and Deadlines” (Docket #
2, the “Notice of Commencement” or “Notice”).
BANKRUPTCY NOTICING CENTER AUTOMATICALLY NOTICE WHAT IT HAD WHICH DID NOT INCLUDE CREDITORS
That Notice of Commencement was served by the Bankruptcy Noticing Center (“BNC”) by mail on December 11, 2008, but the BNC did not mail the Notice to any creditors. Rather, only the Debtor, Debtor’s attorney, and the Chapter 7
Trustee were served with the Notice. (See BNC Certificate of Mailing, Docket # 7, at 3).
COURT PROCEEDS AS IF CREDITORS HAD BEEN NOTICED
Despite this lack of notice to the creditors, on April 1, 2009, the Court entered an Order discharging Debtor (Docket # 24, the “Discharge Order”). Thus, no creditors were sent notice of this bankruptcy case, or the deadlines associated with this case, before Debtor obtained the DISCHARGE.
LATER CREDITORS GET NOTICE OF DISCHARGE
1 All creditors on the creditor mailing matrix were served by the BNC with a notice of the Debtor’s discharge, either by electronic transmission on April 2, 2009, or by mail on April 3, 2009. (See Docket # 25 at 3).
CREDITOR HAD NO OPPORTUNITY TO OBJECT BY FILING AN ADVERSARIAL PROCEEDING
Initially, and as stated in the Notice of Commencement, the deadline for any creditor to file an adversary proceeding objecting to the Debtor’s discharge under 11 U.S.C. § 727(a), and for any creditor to file an adversary proceeding seeking a determination of non-discharge ability under 11 U.S.C. §§ 523(a)(2), 523(a)(4), or 523(a)(6), was March 30, 2009. But no notice of that deadline was served on any creditor before the deadline expired, contrary to Fed.R.Bankr.P.
2002(f)(4) and (f)(5).
COURT SAID REMEDY MUST BE OFFERED TO THE CREDITORS
The Court has concluded that this notice problem must be remedied. Rather than vacating the Debtor’s Discharge Order at this time, however, the Court concludes that the relief provided below is appropriate and sufficient under the circumstances.
SHOW CAUSE DISMISSED CREDITORS MAY OBJECT
Accordingly, IT IS ORDERED that:
1. The show-cause order (Docket # 31) is dissolved, subject to the terms of this Order.
2. Any creditor in this case may file an adversary proceeding objecting to the Debtor’s discharge under 11 U.S.C. § 727(a). Any such adversary proceeding must be filed no later than May 17, 2011.
3. Any creditor in this case may file an adversary proceeding seeking a determination of non-dischargeability under 11 U.S.C. §§ 523(a)(2), 523(a)(4), or 523(a)(6). Any such adversary proceeding must be filed no later than May 17, 2011.
DEBTOR MUST NOW GIVE NOTICE TO ALL CREDITORS
4. No later than March 18, 2011, the Debtor, through his attorney, must serve a copy of this Order on all creditors on the creditor mailing matrix, and must file proof of such service.
5. If Debtor fails to timely comply with paragraph 4 of this Order, the Court may enter an order vacating Debtor’s discharge and dismissing this case, without further notice or hearing.
If you have questions concerning bankruptcy call Flint Bankruptcy Attorney Terry R. Bankert 810-235-1970.