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Discharge
Undue hardship determination ripe before plan completion. Although the Chapter 13 debtor's discharge will not occur until plan completion, that does not defeat constitutional and prudential ripeness of the debtor's complaint to determine undue hardship of student loan debt earlier in the case. Educational Credit Management Corp. v. Coleman (In re Coleman), ___ F.3d ___, 2009 WL 764564 (9th Cir. Mar. 25, 2009).Reversing the bankruptcy court, the Ninth Circuit BAP held that claims brought by the Chapter 13 debtor under Washington's Consumer Protection Act for the creditor's filing of proofs of claim on time-barred debts were preempted by the Code's claims process, and the FDCPA has no application in the claims process. Objecting to a claim as being time-barred under state law is a simple process for debtors. The concurring judge observed that the act of filing a proof of claim is not a debt collection activity under the FDCPA. B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225 (B.A.P. 9th Cir. 2008).
Claims bar date reset upon reinstatement of dismissed case. SEQ CHAPTER \h \r 1Rrecognizing that "Rule 9006(b)(3) appears to unambiguously preclude any equitable discretion on the part of a bankruptcy court to extend or toll [the Rule 3002(c)] deadlines," the court applied rationale from its Fifth Circuit authority under Rules 4004 and 4007, to "nullify original case deadlines and recalculate them when there has been the extenuating circumstance of disruption of a case.... SEQ CHAPTER \h \r 1This courts holds that where a case is disrupted, such as through a stay or dismissal, and a proof of claim deadline runs prior to the reinstatement of the case, a court has the power to nullify the original proof of claim deadline and recalculate it. SEQ CHAPTER \h \r 1In re Gulley, ___ B.R. ___, 2009 WL 530862, at *4 (Bankr. N.D. Tex. Mar. 3, 2009) (citing Coston v. Bank of Malvern, 987 F.2d 1096 (5th Cir. 1992) (approving nullification and resetting of deadlines under Rules 4004 and 4007) and State Bank & Trust, N.A. v. Dunlap (In re Dunlap), 217 F.3d 311 (5th Cir. 2000) (approving resetting of § 341 meeting and resulting Rule 4007 deadline when case was dismissed in error).
The debtor objected to creditor's electronic proof of claim and moved to redact full social security number and birth date that were included in proof of claim attachments. The court ordered that all attachments to the proof of claim be removed from the ECF system, and the debtor then filed a complaint alleged multiple violations for the creditor's failure to redact privacy-protected information. Bankruptcy Rule 9037 addresses privacy protections concerning filings made with the court, and that Rule's remedies had already been applied
©2009 Hon. William Houston Brown
