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In an AP case, a debtor challenged the discharge of a debt

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based on Fraud and Misrepresentation...
In an AP case, a debtor challenged the discharge of a debt based on Fraud and Misrepresentation, which mirrored their previously filed suit. However, they also added "Embezzellment" to the AP claim something that they had never raised in the previous suit (and close to 9 years from the base of the civil action). I filed a motion to dismiss based on their failure to establish the requsite requirements for a claim based in Fraud and that the Embez count was a new element of law and thereby barred by teh statute of limitations (3 or 6 years depending on your definitions). The Court came back and allowed the Embezz claim to go forward stating that it they started the civil suit within the the S/L and w/o addressing the new element of law defense, but disallowed the Fraud et al saying that they did not meet the statutory requirements for same. However, they went on to allow the Plaintiff to amend their pleadings to address the deficiencies - "specifically as it applies" to the Fraud count !?

Plaintiff has responded with a Motion for Reconsideration on the Fraud count. So my questions are as follows: Can I/should I object to their Motion for Reconsideration ? Can I object to the Court granting them leave to amend their complaint i.e to try to take another bite of the apple ? Can I/should I fiel a Motion for Reconsideration on the Embezz count as a new element of law that is barred by the S/L ?
Submitted: 5 years ago.Category: Bankruptcy Law
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Answered in 4 hours by:
1/6/2012
Bankruptcy Lawyer: cortrightlaw, Attorney replied 5 years ago
cortrightlaw
cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience: Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
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cortrightlaw :

You should just file and opposition to their motion for reconsideration. Usually motions for reconsideration are routinely denied by the court as the judges really do not appreciate being questioned on their rulings. As to the granting of the leave to amend this is fairly routine and almost always allowed by the courts, the want to give them every opportunity to make their case just in case it ends of going up on appeal.

cortrightlaw :

As to the statute of limitations issues regarding the embezzlement issue I do not completely understand your question? did the bankruptcy court allow them to proceed on that issue? and what was the reasoning?

cortrightlaw :

If you find my answer responsive to your question please accept the answer so I can get credit for it. Also if you post some clarification I will check back and see if I can provide other assistance.

Customer:

Sorry that I was unclear previously. THe odd thing (from my perspective) is that the Plaintiff didn't have to request leave for amending their filing the Court automatically gave it to them as part of their ruling that they had not proved the Fraud et al count sufficiently, but it sounds like this is fairly standard practice anyway so not sure there is much to do about it. How long to I have to file an objection to thier motion for reconsideration as its been about a week now since I received notice on it ?

Customer:

As for the embezzlemtn count, the Court allowed it to go forward i.e. they found that since the Plaintiff had filed the lawsuit (for breach of contract and fraud) prior to the S/L that they were not barred from the embezz claim in the A/P. However, they did not specifically address the issue I raised that it was an entirely new element of law that was NOT asserted in the Plaintiffs previous civil actions and as such the S/L should apply as it was close to 9 years after the original cause of action that was the basis for the civil suit.

cortrightlaw : As to the timeline to file you've opposition you need to google the federal rules of civil procedure to see what the ti
cortrightlaw : As to the embezzlement issue if the prior civil suit had come to a final conclusion and if it is based upon the embezzlement claim is based on the same facts and circumstances you might have an affirmative defense of issue preclusion, you can google it to see the elements in your state, but basically you are required to bring all of your issues against someone involving the same set of facts at one time, you can't continue to start new litigation over and over again on the same facts.
cortrightlaw : Time limit is to file your opposition.
cortrightlaw : If my answers have provided some insight please press the accept button so I can receive credit for my responses.
cortrightlaw
cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience: Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
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Category: Bankruptcy Law
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