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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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Are there any cases that support an extension of time beyond

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Are there any cases that support an extension of time beyond one year to file a Miller Act claim? A bankruptcy court had barred any collection action against the prime contractor. One attorney on this site told me I just needed to file a mechanic's lien against the Federal property. (Wrong!) Three attorney's couldn't help due to a conflict of interest. (One was the prime contractor's attorney, another was the general contractor's attorney, and the third was the arbitrator. I filed a pro se action, however, it was over the one year time limit, due to lack of information, inability to find legal counsel, and the Bankruptcy Court telling me I couldn't file any collection actions against the contractor.


 


I never received any notice from the contractor about the payment bond. The bond was taken out by the general (first tier) contractor on behalf of the prime contractor, with a personal guarantee by the owners of the general contracting company for over half of the bond amount, basically defeating the intent of the payment bond.


 


I just need information to give to the court showing the court that it can extend the filing time due to extenuating circumstances.


 


The Prime contractor is out of business. the owners of the Prime are under investigation by Naval Criminal Investigation Services, Great Lakes for fraud.


 


Neither my Congressman nor Senators have been able to offer any information or help, other than helping launch the NCIS investigation.

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Customer: replied 3 years ago.

This message is the only response I have received.

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Wendy
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Customer: replied 3 years ago.

Still waiting.

Thank you again for your patience, we will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.

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Wendy
Hello,

I've been away from the website for a few days, so this is the first I've seen of your question.

Bankr. Code 108(c) provides that where a statute of limitations expires while the bankruptcy stay is in force, a creditor has 30 days from the date that the bankruptcy stay expires to file a legal action against the debtor. See, e.g., Aslanidis v. United States Lines, Inc. (2nd Cir. 1993) 7 F3d 1067, 1073–1074 (3–year maritime statute of limitations barred seaman's action because not filed within 30 days after notice of relief from stay).

Hope this helps.
Customer: replied 3 years ago.

Would this also apply to collecting from the Bonding company?

"It is universally acknowledged that an automatic stay of proceeding accorded by § 362 may not be invoked by entities such as sureties, guarantors, co-obligors, or others with a similar legal or factual nexus to the Chapter 11 debtor." Lynch v. Johns-Manville Sales Corp., 710 F. 2d 1194, 1196 (1983).

In other words, if there was a statute of limitations which would bar liability of a surety, then that statute of limitations would expire, regardless of Bankr. Code 108(c).

In some state jurisdictions, there is case law that provides equitable bases for tolling a statute of limitations. Whether or not there is any case law of help to your circumstances would require quite a bit more info about why you had no knowledge of the bond. Also, I would need to know the state jurisdiction where the contract was formed. If you want to discuss this new issue, you would need to open a new Q&A session.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 38132
Experience: Retired (mostly)
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