The Debtor filed an adversary proceeding complaint against a creditor for violation of the discharge injunction. The creditor filed a motion to dismiss the complaint; the Debtor filed a Motion for Judgment on Issue of Liability. The Court treated both motions as cross-motions for summary judgment pursuant to Rule 7056 as matters outside the pleadings were presented to and not excluded by the Court. The Court held that the creditor violated the discharge injunction by collecting on “new” notes that were made by the creditor with the Debtor that were based in whole or in part on a debt that was discharged within the scope of Section 524(c). Neither the Debtor nor the Bank attempted to reaffirm the debt by following the procedures of Section 524(c) before moving forward with a second note. The Debtor’s motion for summary judgment on the issue of liability was granted with a further hearing to be scheduled to determine the appropriate sanctions, if any.
Friday, May 27, 2016
Burden of Proof