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No further petitions may be filed and all pending motions are denied. 7003, which must be served on the student loan creditor along with a summons, id. Espinosa then made the payments specified in the plan, and the bankruptcy court eventually entered a discharge order. The provision giving student loan creditors a right to special procedures comes into play when the case is pending before the bankruptcy court. To initiate an adversary, the debtor must file a complaint, id. Instead Espinosa simply listed the student debt in his Chapter 13 plan, which the bankruptcy court confirmed. These opinions divine some sort of conflict between the Bankruptcy Code's finality provision, 11 U. We see no such conflict; both provisions can operate fully, within their proper spheres. Your claim will be paid as listed in the plan.” The notice also contained the following warning: If an interested party wishes to dispute the above stated treatment of the claim, it is the responsibility of the party to address the dispute. Or, the creditor may overlook the notice or fail to understand its legal implications.
Mersmann and Whelton pay scant attention to 60(b) or the caselaw thereunder, which strictly cabins the circumstances under which a judgment can be reopened after it becomes final. Whelton, 432 F.3d at 155; Mersmann, 505 F.3d at 1049-50. First, what we have here is not a question of res judicata-giving the judgment in the bankruptcy case preclusive effect in another case. A discharge judgment could also have res judicata effect, if the creditor were to try to enforce the debt by bringing a post-discharge lawsuit, but the discharge injunction prevents him from even commencing the second suit where the res judicata issue could be litigated. The three circuits that have held that the creditor is denied due process in circumstances such as these appear to have a different understanding of what due process requires. 461, 474-75 (1997)); National Bankruptcy Review Commission, Bankruptcy: The Next Twenty Years 233 (1997), available at
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But that's less a matter of notice and more of a tutorial as to what rights the creditor has under the Bankruptcy Code-a long-form Miranda warning for bankers. Seeing no reason to change course, we continue to follow Pardee. Funds also argues that the discharge order is void because Funds was denied due process, as it was never served with a complaint and summons as required by Fed. In short, we find the due process argument even less persuasive than the statutory argument, despite the eagerness of some of our sister circuits and other courts to adopt it. Anything Enewally has to say as to matters not presented in that case is, in any event, dicta and thus not binding on us.
If that were the standard for adequate notice, every notification under the Bankruptcy Code would have to be accompanied by Collier's Treatise, lest the creditor overlook some rights it might have under the Code. What appears to be going on is that courts are re-casting what may be a simple statutory violation as a denial of due process so that they can set aside judgments with which they're unhappy. Reading Enewally broadly to speak to that hypothetical situation would also bring it into conflict with Pardee, which addresses precisely this issue.4. A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524's discharge injunction).