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of the promissory note does not preclude Frazier from utilizing § 523(a)(2)(A) to prevent discharge of that debt in bankruptcy court.").
D. Service of process
E. Amending complaint after filing deadline
F. Intervention; substitution
G. Counterclaims
H. Jury trial in discharge and dischargeability proceedings
I. Estoppel and res judicata
Melnor v. Corey (In re Corey), 583 F.3d 1249 (10th Cir. 2009) (Hartz, Brorby, Tymkovich) (Federal court default judgment based on litigation misconduct satisfies "actually litigated" requirement and precludes relitigation of fraud in § 523(a)(2) action. Litigation misconduct led federal district court to strike debtor's defenses in a suit for fraud. Debtor then failed to appear for trial on damages and court assessed damages based on plaintiff's evidence. Plaintiff sought determination that federal judgment was nondischargeable under § 523(a)(2)(A). "Under federal law, 'issue preclusion attaches only '[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.'' . . . [While a default judgment generally will not satisfy the actually litigated criteria,] the Restatement . . . makes clear that the type of 'default' being considered was not a default imposed as a sanction but a default resulting from an affirmative decision not to contest a matter. The opening paragraph of comment e to § 27 of the Restatement provides the rationale for not applying issue preclusion to a defaulting party: 'A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action. There are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all. The interests of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before. And if preclusive effect were given to issues not litigated, the result might serve to discourage compromise, to decrease the likelihood that the issues in an action would be narrowed by stipulation, and thus to intensify litigation.' [T]his passage is referring to unraised or uncontested issues. When, in contrast, the opposing party has already been subjected in an earlier proceeding to 'oppression or harassment' that caused the court to declare a default on an
©2010 Keith M. Lundin
