BKR JUDGE: DISCOVERY IS KEY TO SPEED

Written by Cathy Moran, Esq

More lawyering for faster confirmation of Chapter 13 cases was the advice.

The newest judge on our bench called on a room full of bankruptcy attorneys to speed up the flow of cases through his (packed) courtroom by taking discovery.  When an informal request of the objecting creditor doesn’t yield the information you need, send discovery, he charged.

Let’s do the numbers.  Rule 9014 makes certain of the Part 7  adversary proceeding discovery rules applicable in contested matters.  Contested matters include objections to confirmation and objection to claims, probably the two most frequently encountered bankruptcy disputes, after relief from stay.

Rule 7033 provides for interrogatories;  rule 7034 for production of documents; and rule 7036 for requests for admission.

Bankruptcy practitioners often seem to forget about the need to provide the court with admissible evidence in order to resolve disputes.  It is my belief that institutional creditors and their lawyers often file objections that, at minimum, are not well thought out and which they are not genuinely prepared to prosecute.

Have them produce some evidence, give the contentions of their position some thought, and expend some energy developing their objection and you may find discussions to resolve the matter more productive.

Evidence is kinetic.

10 Responses

  1. Gregory Bryl, Esq.,

    Discovery is being compromised in federal and state courts —- and this should not be.

  2. Now on topic: this post also needs to note that a hearing on a lift-stay motion or claim objection is usually required to take place within 30 days. Therefore, you can’t just launch into discover in bankruptcy because you simply don’t have enough time. You either have to do expedited discovery (such as a quick scheduling of a deposition with subpoena duces tecum) or move for a continuance to allow discovery to actually take place.

  3. Can you void a deed of trust (security) that has been split from the note?
    As I stated numerous times to clients and attorneys alike, I believe that the “split note” theory is a loser 99% of the time, at least in most states, including Virginia (because most states do not require mortgage assignments to be recorded). However, in certain instances it is possible to truly “split” the deed of trust from the note and render the note unsecured. Our sister jurisdiction DC has such a case. I am posting it here in hopes that maybe some homeowners or attorneys will find it helpful in their particular situation.

    http://www.scribd.com/doc/45565637/DC-Case-Note-Split-From-DOT

  4. Discovery is being compromised in courts.

  5. ABOUT TIME!!

  6. Note: Pierre Augustin has til March 2011 to respond with his own Findings of Facts and Conclusions.

    See my earlier post below.

    Pierre has been fighting New Century.

  7. The Pierre Augustin case — read this and perhaps learn from it:

    http://www.scribd.com/doc/45549470/Pierre-Augustin-v-New-Century-TRS-Holdings-Inc-Findings-of-Facts-and-Conclusions

  8. My petition for an adversary hearing resulted in boa’s filing for a motion to dismiss and strike. The bank’s failure to comply with the local rules resulted in a denial without prejudice. The status conference to determine the discovery involved has now been reset. What discovery, if any, can i commence or request prior to the status conference?
    David, if your outthere, my program cannot download your handbhook on quite title. Is there another way of getting it, please inform.

  9. HUH?

    Let the Prentender Lenders HANG THEMSELVES in BK Court. I dont understand the Judges ex parte ramble?

    Whats his point? Sounds like a complacent Judge.

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