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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33877
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I want to file a motion to compel discovery in ch. 7 bankruptcy

Resolved Question:

I want to file a motion to compel discovery in ch. 7 bankruptcy adversary proceeding in San Jose, CA.
Defendant attorney objected all request for admission with evidence attached and for entering onto property to inspect or copy relevant evidence. What kind of motion title is needed?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 1 year ago.
Hello,

For a request for admissions and motion to complel, the proper motion is called, MOTION TO DETERMINE SUFFICIENCY OF ANSWERS OR OBJECTIONS AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND For PHYSICAL INSPECTION OF PROPERTY (FRCP 36(a)(6); FRCP 37).

Hope this helps.
Customer: replied 1 year ago.

 

Thanks. I have to go. If I am late, can I have discovery at pre-trial or trial?

And I discovered defendant made an false statement on his bankruptcy statement. Can I file a perjury separately other than adversary proceeding?

And where is the request for admission? I do not need to put "Request for Admission?"

Expert:  socrateaser replied 1 year ago.

Thanks. I have to go. If I am late, can I have discovery at pre-trial or trial?

 

A: Pretrial. No discovery is permitted during trial, except to call a witness who may testify differently than may have been previously expected.

 

And I discovered defendant made an false statement on his bankruptcy statement. Can I file a perjury separately other than adversary proceeding?

 

A: You can file a complaint of bankruptcy fraud with the U.S. Trustee, at this link. Other than that, if you prove that the defendant committed a fraud against the court during the proceedings, then you could ask the Bankruptcy Court to sanction the defendant, pursuant to the court's inherent powers under Bankr. Code 105(a), or under FRBP 9011.

 

And where is the request for admission? I do not need to put "Request for Admission?"


A: No, but you need to explain to the court what is wrong with the defendant's answers to your request for admissions.

 

Hope this helps.

 

 

 

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33877
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

I filed the above motion to Federal court clerk this Monday. She said check up with pacer if have questions. How can I check the motion date and what should I attach and how can I get information on the attach. Just name a few. A proposed order, a written notice of motion, and/ or notice of hearing.

Expert:  socrateaser replied 1 year ago.
I don't understand your question. What do you mean by "attach?"
Customer: replied 1 year ago.

When I read a bankruptcy book (I am not sure whether it is a bankruptcy book or not) "Notice and Service of Motion (L.R. 6-1, General Order No 10-07, "a written notice of motion must be files with the clerk no later than 28 days before the date set for hearing and must be served on each of parties ( I have only one party)... When a proposed order accompanies the motion, the proposed order must be in pdf format and included as an attachment to the motion.

Expert:  socrateaser replied 1 year ago.
I'm still not sure if I understand what it is you are asking. If you mean that you didn't file all of the necessary parts of the motion (i.e., notice of motion, declaration of facts, memorandum of points and authorities, proposed order), then you need to file them, if you want the court to order the motion in your favor.

Hope this helps.
Customer: replied 1 year ago.

I filed motion with declaration of facts and memorandum of point and authorities this monday. The above motion is notice of motion? I didn't file a proposed order which I don't know what it is. After filing a motion, I asked a clerk of when it is a hearing date and she said check with pacer. That is all.

Expert:  socrateaser replied 1 year ago.
According to the rules you provided, a proposed order is not actually necessary.

Usually, when you file a motion, the first page contains a notice to the other party/ies of the hearing date. If you filed the motion without the hearing date, then you could check PACER to find the docket entry with the hearing date -- unless the judge rules on the motion without a hearing, in which case, PACER will show the court's ruling.

If you are unfamiliar with PACER, then you need to register for access (see this link).

Hope this helps.
Customer: replied 1 year ago.

Thanks. My computer was down. I have a pacer account. After checking a hearing

date, should I inform the opposing party. Is that a proposed order. And should I file a proof of service to federal court after emailing a proposed order with a hearing date to defendant attorney (I have an agreement with defendant attorney for emailing)? Sorry to bother you, but it is very important matter to me.

Sincerely yours,

Expert:  socrateaser replied 1 year ago.
Review Rule 7007-1 and Rule 9013-1 through 9013-3. You should have obtained a hearing date when you filed, and you should have filed a notice of motion indicating that date, so that it could all be served on the other party/ies.

If the clerk expressly told you that he/she would get a date from the court and that you could file the notice of motion afterwards, then that's permitted by the local rules, and you can follow the clerk's directive. In which case, you must file and serve the notice of motion on the other party/parties, according to the clerk's instructions, and then file a certificate of service with the court.

Hope this helps.
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33877
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you

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