What Motion is Filed After Missing a Bankruptcy Deadline to Turn Over Assets?
Full Question:
Answer:
In an asset case the bankruptcy trustee liquidates your nonexempt assets in a way to get the most money to return to your unsecured creditors. The trustee does this by selling your property if it is free of any liens (and not exempt) or if it is worth more than the amount remaining on the liens.
Additionally, the bankruptcy trustee is given avoiding powers which enable the trustee to recover certain preferential or fraudulent transfers of property or to void liens created right before the beginning of your bankruptcy case.
The answer will depend on all the circumstances involved. Typically, when a deadline is going to be missed, the party may request an extension of time to respond, but the basis for the request varies. Often, excusable neglect is stated as the basis for the request. The debtor must demonstrate excusable neglect for its failure to timely file a notice of appeal. Excusable neglect is a phrase that is not defined, but appears in a number of places in the Federal Rules, most notably, in Federal Rule of Civil Procedure 60(b)(1), which is incorporated into bankruptcy cases by Federal Rule of Bankruptcy Procedure 9024. It also appears in Federal Rule of Appellate Procedure 4(a)(5)(A), which allows the district court to extend the time to file a notice of appeal upon a showing of excusable neglect if the motion is made within 30 days of the expiration of the of the appeal period.
“Excusable neglect” also appears in Federal Rule of Bankruptcy Procedure 9006(b)(1), regarding
enlargement of time, which provides generally that certain time periods can be extended when motions and extensions are made after the expiration of the time period, but only upon a showing of excusable neglect. See Fed. R. Bankr. P. 9006(b)(1).
It is possible that the discharge may be revoked by the trustee if your daughter doesn't comply. I suggest consulting a local bankruptcy attorney who can review all the facts and documents involved.
For further discussion, please see:
http://uscode.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000727----000-.html
http://bulk.resource.org/courts.gov/c/F2/880/880.F2d.78.88-5296.html
Please see the following federal rules:
Rule 8002. Time for Filing Notice of Appeal
(a) Ten-day period.
The notice of appeal shall be filed with the clerk within 10 days of
the date of the entry of the judgment, order, or decree appealed from. If
a timely notice of appeal is filed by a party, any other party may file a
notice of appeal within 10 days of the date on which the first notice of
appeal was filed, or within the time otherwise prescribed by this rule,
whichever period last expires. A notice of appeal filed after the
announcement of a decision or order but before entry of the judgment,
order, or decree shall be treated as filed after such entry and on the
day thereof. If a notice of appeal is mistakenly filed with the district
court or the bankruptcy appellate panel, the clerk of the district court
or the clerk of the bankruptcy appellate panel shall note thereon the
date on which it was received and transmit it to the clerk and it shall
be deemed filed with the clerk on the date so noted.
(b) Effect of motion on time for appeal.
If any party makes a timely motion of a type specified immediately
below, the time for appeal for all parties runs from the entry of the
order disposing of the last such motion outstanding. This provision
applies to a timely motion:
(1) to amend or make additional findings of fact under Rule 7052,
whether or not granting the motion would alter the judgment;
(2) to alter or amend the judgment under Rule 9023;
(3) for a new trial under Rule 9023; or
(4) for relief under Rule 9024 if the motion is filed no later than 10
days after the entry of judgment. A notice of appeal filed after
announcement or entry of the judgment, order, or decree but before
disposition of any of the above motions is ineffective to appeal from the
judgment, order, or decree, or part thereof, specified in the notice of
appeal, until the entry of the order disposing of the last such motion
outstanding. Appellate review of an order disposing of any of the above
motions requires the party, in compliance with Rule 8001, to amend a
previously filed notice of appeal. A party intending to challenge an
alteration or amendment of the judgment, order, or decree shall file a
notice, or an amended notice, of appeal within the time prescribed by
this Rule 8002 measured from the entry of the order disposing of the last
such motion outstanding. No additional fees will be required for filing
an amended notice.
(c) Extension of time for appeal.
(1) The bankruptcy judge may extend the time for filing the notice of
appeal by any party, unless the judgment, order, or decree appealed from:
(A) grants relief from an automatic stay under § 362, § 922, § 1201, or
§ 1301;
(B) authorizes the sale or lease of property or the use of cash
collateral under § 363;
(C) authorizes the obtaining of credit under § 364;
(D) authorizes the assumption or assignment of an executory contract or
unexpired lease under § 365;
(E) approves a disclosure statement under § 1125; or
(F) confirms a plan under § 943, § 1129, § 1225, or § 1325 of the Code.
(2) A request to extend the time for filing a notice of appeal must be
made by written motion filed before the time for filing a notice of
appeal has expired, except that such a motion filed not later than 20 days
after the expiration of the time for filing a notice of appeal may be
granted upon a showing of excusable neglect. An extension of time for
filing a notice of appeal may not exceed 20 days from the expiration of
the time for filing a notice of appeal otherwise prescribed by this rule
or 10 days from the date of entry of the order granting the motion,
whichever is later.
Rule 8011. Motions
(a) Content of motions; response; reply.
A request for an order or other relief shall be made by filing with the
clerk of the district court or the clerk of the bankruptcy appellate
panel a motion for such order or relief with proof of service on all other
parties to the appeal. The motion shall contain or be accompanied by any
matter required by a specific provision of these rules governing such a
motion, shall state with particularity the grounds on which it is based,
and shall set forth the order or relief sought. If a motion is supported
by briefs, affidavits or other papers, they shall be served and filed
with the motion. Any party may file a response in opposition to a motion
other than one for a procedural order within seven days after service of
the motion, but the district court or the bankruptcy appellate panel may
shorten or extend the time for responding to any motion.
(b) Determination of motions for procedural orders.
Notwithstanding subdivision (a) of this rule, motions for procedural
orders, including any motion under Rule 9006, may be acted on at any
time, without awaiting a response thereto and without hearing. Any party
adversely affected by such action may move for reconsideration,
vacation, or modification of the action.
(c) Determination of all motions.
All motions will be decided without oral argument unless the court
orders otherwise. A motion for a stay, or for other emergency relief may
be denied if not presented promptly.
(d) Emergency motions.
Whenever a movant requests expedited action on a motion on the ground
that, to avoid irreparable harm, relief is needed in less time than would
normally be required for the district court or bankruptcy appellate panel
to receive and consider a response, the word "Emergency" shall precede
the title of the motion. The motion shall be accompanied by an affidavit
setting forth the nature of the emergency. The motion shall state whether
all grounds advanced in support thereof were submitted to the bankruptcy
judge and, if any grounds relied on were not submitted, why the motion
should not be remanded to the bankruptcy judge for reconsideration. The
motion shall include the office addresses and telephone numbers of moving
and opposing counsel and shall be served pursuant to Rule 8008. Prior to
filing the motion, the movant shall make every practicable effort to
notify opposing counsel in time for counsel to respond to the motion. The
affidavit accompanying the motion shall also state when and how opposing
counsel was notified or if opposing counsel was not notified why it was
not practicable to do so.
(e) Power of a single judge to entertain motions.
A single judge of a bankruptcy appellate panel may grant or deny any
request for relief which under these rules may properly be sought by
motion, except that a single judge may not dismiss or otherwise decide an
appeal or a motion for leave to appeal. The action of a single judge may
be reviewed by the panel.
Rule 9006. Time
(a) Computation.
In computing any period of time prescribed or allowed by these rules or
by the Federal Rules of Civil Procedure made applicable by these rules,
by the local rules, by order of court, or by any applicable statute, the
day of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, or, when the act to be done is the filing of a paper in court, a
day on which weather or other conditions have made the clerk's office
inaccessible, in which event the period runs until the end of the next
day which is not one of the aforementioned days. When the period of time
prescribed or allowed is less than 8 days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the computation. As used
in this rule and in Rule 5001(c), "legal holiday" includes New Year's
Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a holiday
by the President or the Congress of the United States, or by the state in
which the court is held.
(b) ENLARGEMENT.
(1) In General. Except as provided in paragraphs (2) and (3) of
this subdivision, when an act is required or allowed to be done
at or within a specified period by these rules or by a notice given
thereunder or by order of court, the court for cause shown may at any time
in its discretion (1) with or without motion or notice order the period
enlarged if the request therefor is made before the expiration of
the period originally prescribed or as extended by a previous order
or (2) on motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of
excusable neglect.
(2) Enlargement Not Permitted. The court may not enlarge the time for
taking action under Rules 1007 (d), 2003 (a) and (d), 7052, 9023, and
9024.
(3) Enlargement Governed By Other Rules. The court may enlarge the time
for taking action under Rules 1006 (b)(2), 1017 (e), 3002 (c), 4003
(b), 4004 (a), 4007 (c), 4008 (a), 8002, and 9033, only to the extent
and under the conditions stated in those rules. In addition, the court
may enlarge the time to file the statement required under Rule 1007
(b)(7), and to file schedules and statements in a small business case
under § 1116 (3) of the Code, only to the extent and under the
conditions stated in Rule 1007 (c).
(c) REDUCTION.
(1) In general.
Except as provided in paragraph (2) of this subdivision, when an act is
required or allowed to be done at or within a specified time by these
rules or by a notice given thereunder or by order of court, the court for
cause shown may in its discretion with or without motion or notice order
the period reduced.
(2) Reduction Not Permitted. The court may not reduce the time for
taking action under Rules 2002 (a)(7), 2003 (a), 3002 (c), 3014, 3015,
4001 (b)(2), (c)(2), 4003 (a), 4004 (a), 4007 (c), 4008 (a), 8002, and
9023 (b). In addition, the court may not reduce the time under Rule 1007
(c) to file the statement required by Rule 1007 (b)(7).
(d) For motions — affidavits.
A written motion, other than one which may be heard ex parte, and
notice of any hearing shall be served not later than five days before the
time specified for such hearing, unless a different period is fixed by
these rules or by order of the court. Such an order may for cause shown
be made on ex parte application. When a motion is supported by
affidavit, the affidavit shall be served with the motion; and, except as
otherwise provided in Rule 9023, opposing affidavits may be served not
later than one day before the hearing, unless the court permits them to
be served at some other time.
(e) Time of service.
Service of process and service of any paper other than process or of
notice by mail is complete on mailing.
(f) Additional time after service by mail or under Rule 5(b)(2)(C) or
(D) F.R.Civ.P.
When there is a right or requirement to act or undertake some
proceedings within a prescribed period after service and that service is
by mail or under Rule 5(b)(2)(C) or (D) F.R.Civ.P., three days are added
after the prescribed period would otherwise expire under Rule 9006(a).
(g) Grain storage facility cases.
This rule shall not limit the court's authority under § 557 of the
Code to enter orders governing procedures in cases in which the debtor is
an owner or operator of a grain storage facility.
Rule 9024. Relief from Judgment or Order
Rule 60 F.R.Civ.P. applies in cases under the Code except that (1) a
motion to reopen a case under the Code or for the reconsideration of an
order allowing or disallowing a claim against the estate entered without
a contest is not subject to the one year limitation prescribed in Rule
60 (c), (2) a complaint to revoke a discharge in a chapter 7 liquidation
case may be filed only within the time allowed by § 727 (e) of the
Code, and (3) a complaint to revoke an order confirming a plan may be
filed only within the time allowed by § 1144, § 1230, or § 1330.
Rule 9013. Motions: Form and Service
A request for an order, except when an application is authorized by
these rules, shall be by written motion, unless made during a hearing.
The motion shall state with particularity the grounds therefor, and shall
set forth the relief or order sought. Every written motion other than one
which may be considered ex parte shall be served by the moving party on
the trustee or debtor in possession and on those entities specified by
these rules or, if service is not required or the entities to be served
are not specified by these rules, the moving party shall serve the
entities the court directs.
