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Debtor forfeits exclusive bankruptcy court jurisdiction by failing to schedule creditor. When the debtor failed to schedule a known creditor or to otherwise notify that creditor of the bankruptcy filing, the debtor forfeited the right to have a dischargeability determination made only by the bankruptcy court, citing In re Franklin, 179 B.R. 913 (B.A.P. 9th Cir. 1995). After the debtor received a discharge, the plaintiff sued him and other defendants in state court for Fair Debt Collection Practices Act violations, related to collection and garnishment on a judgment that had been set aside, and the action was removed to U.S. District Court. The debtor, a former collections manager, did not amend Chapter 7 schedules to add the plaintiff after the action was filed. Johnson v. JP Morgan Chase Bank, et al., 395 B.R. 442 (E.D. Cal. 2008).
Order converting Chapter 13 case to Chapter 7 is final and appealable. In Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 774 (9th Cir. 2008), discussed above under Dismissal , the court also held, as a matter of first impression in the Ninth Circuit, that an order from the bankruptcy court converting a case to Chapter 7 is a final order subject to appeal.
Professionals
Chapter 7 debtors are "prevailing parties" under Equal Access to Justice Act. When the U.S. Trustee moved to dismiss under § 707(b), to which the debtors objected, with the motion withdrawn and the debtors receiving a discharge, the debtors sought attorney fees under 28 U.S.C. § 2412 for defending the dismissal motion. Applying the language of the Equal Access to Justice Act to "the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his or her official capacity in any court having jurisdiction of such action[,]" the bankruptcy court concluded that debtors may be "prevailing parties" for purposes of the Act's fee shifting; however, further hearing on whether fees are justified under the Act are set. In re Mendez, No. 7-07-11092 SA, 2008 WL _______ (Bankr. D. N.M. Sept. 26,2008).
©2009 Hon. William Houston Brown
