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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Need to file a motion to vacate a discharge for the purpose

Customer Question

Need to file a motion to vacate a discharge for the purpose of filing a reaffirmation agreement that was entered into prior to the discharge. The unsigned copy was filed in error. So, now that discharge is entered, I need to file a motion to vacate the discharge for this purpose and then to have it reinstated.. Anybody have a sample motion to vacate? Venue is Central District, CA. Thanks.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 2 years ago.

WALLSTREETESQ :

If you want to reopen your bankruptcy case, and add a reaffirmation agreement,

WALLSTREETESQ :

You would file a motion to reopen, so you can add the reaffirmation agreement,

WALLSTREETESQ :

UNITED STATES BANKRUPTCY COURT


_______________ DISTRICT OF _________________


________________ DIVISION



In re: )


JOHN DOE, ) CASE NO. 08-12121-ABC-13


Debtor(s). )



MOTION TO REOPEN BANKRUPTCY CASE


 



COME NOW the Debtor(s) and pursuant to Bankruptcy Code §350(b) request the Court reopen the above-captioned bankruptcy case, and in support hereof now state:


1. That Debtor(s) need to reopen the above-captioned bankruptcy case because _________________________________________________.


WHEREFORE, Debtor(s) pray the Court reopen the above-captioned bankruptcy case and for all further relief as may be just and proper in the premises.


Respectfully submitted,


_______________________


Debtor(s)' Signature


 


CERTIFICATE OF SERVICE


I hereby certify that a true and accurate copy of the foregoing was served, by First Class United States Mail, postage prepaid, this ____day of ________ ,2008, to the following person(s):


U.S. Trustee's Office at address_______________________________


Chapter 7 Trustee at address____________________________


All creditors at the following addresses___________________________


 


________________________________


Debtor(s)' Signature


Document No.______


***************************************************************************


 



UNITED STATES BANKRUPTCY COURT


_______________ DISTRICT OF ________________


____________________ DIVISION



In re: )


JOHN DOE, ) CASE NO. 08-12121-ABC-13


Debtor(s). )


ORDER TO REOPEN CHAPTER 7 CASE


CAME the Debtor(s) and moved to reopen the above-captioned bankruptcy case.


And this Court, being duly advised in the premises, hereby GRANTS said Motion and ORDERS the above-captioned case reopened.


###


Order prepared by: Debtor(s)


Distribution:


Debtor(s)


U.S. Trustee


Chapter 7 Trustee


All creditors


 


Document No. _________

WALLSTREETESQ :

You can use the sample form above to file the motion to reopen, and add the agreement.

WALLSTREETESQ :

You should have the Court clerk, review the motion and see if anything else is required to have it filed, but the basic language and form is above.

WALLSTREETESQ :

If you have any further questions please do not hesitate to ask

WALLSTREETESQ :

If satisfied please press the accept button so we can receive credit

Expert:  WALLSTREETESQ replied 2 years ago.
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Customer: replied 2 years ago.
But the case is not closed. There is an order of discharge entered. The case is not yet closed because there are assets being administered but the discharge is entered. Don't I need to vacate the discharge to file the reaffirmation agreement and then have the discharge reinstated?
Expert:  WALLSTREETESQ replied 2 years ago.

Bankruptcy Rule 1009 provides that "a voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed."

 

So if the case is not closed, you can just file an amendment and have it filed. A motion to vacate is not the common procedure to do what you want, under the rules, if closed you would file a motion to reopen, which is the common way, if not closed, you can file an amended schedule under rule 1009

Customer: replied 2 years ago.
I am not filing an amended schedule. It is reaffirmation agreement. The time for filing has passed. The discharge is entered but the case is still open. My research in CA has led me to a motion to vacate discharge to file reaff and then to have the discharge reinstated.
Customer: replied 2 years ago.
Relist: Inaccurate answer.
Expert:  WALLSTREETESQ replied 2 years ago.
You would file an amended statement of intention and add that you are reaffirming the debt, and file the reaffirmation agreement.

If that does not work and you want to file a motion to vacate a judgment in bankruptcy court, that is not a common procedure, and their is no sample I can see for that.

Be aware, the law is clear Rule 1009 "a voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed." The reaffirmation agreement would be included, with an amended statement of intention.

Expert:  cfortunato replied 2 years ago.
Hi JACustomer,
Do you still need a sample motion?
Customer: replied 2 years ago.
Yes. I still need a sample. Thank you.
Expert:  cfortunato replied 2 years ago.

Here is a sample:

 

You would use the same caption (the top of the page with the court name), but instead of "Motion to Reopen Bankrutpcy Case", you would put "Motion to Vacate Discharge".

And then here is the sample for the body of the Motion:

 

1) I, [your name], the debtor in this case, entered into a reaffirmation agreement with creditor ([name of creditor] on [date of agreement].

 

2) However, this reaffirmation agreement was not duly filed because______________________.

 

3) The discharge was granted for this case on [date of discharge].

 

4) Pursuant to 28 USC 524(c), reaffirmation agreements must be filed before a discharge is issued.

 

5) Wherefore, the debtor is requesting that the discharge be vacated, so that this reaffirmation agreement can be filed.

 

 

cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
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