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I am a creditor in a chapter 7 adversary proceeding and I…

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I am a creditor...

I am a creditor in a chapter 7 adversary proceeding and I wish to submit a motion to dismiss, what wording do I use?

Lawyer's Assistant: What state are you in? And has anything been officially filed?

Ohio Yes the defendants attorney has filed a motion to dismiss with summary judgement and a memorandum to support a motion of dismissal

Lawyer's Assistant: Has anything been filed in civil court? If so, what?

I did call the bankruptcy court today and on those documents, the attorney stated the wrong case number, he put a civil case number ***** the clerk did not recognize

Submitted: 8 months ago.Category: Legal
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9/27/2017
Lawyer: legalgems, Lawyer replied 8 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,321
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Lawyer: legalgems, Lawyer replied 8 months ago

An adversarial proceeding is a sub-set of the bankruptcy proceeding; it is when a party files a complaint with the bankrupcy court seeking relief from the judge; it is assigned a different case number ***** may be the confusion as to the case number.

Rule regarding dismissal here

here

Sample motion here

dismissals

Sample order here

So the motion is labeled a Motion to Dismiss but one can provide more clarity - ie the basis on which the request for the dismissal is being requested.

This explains the guidelines for dismissal

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Customer reply replied 8 months ago
When I called the bankruptcy court, she asked for the adversary case # ***** I gave her the case number ***** the defendants attorney listed on the Motion of Defandant to Dismiss by Summary Judgement and the memorandum in support of motion to dismiss and she stated that this was a civil case number, not the adversary# ***** the bankruptcy case #***** Will this void these motions since the correct number is ***** listed? Wondering if they don't correct with right case number ***** it is possible that they may miss the deadline to respond and that I would be awarded judgement? If that is not the case, I have decided not to move forward with my adversary complaint, and I need to notify the court, what wording should I use?
Lawyer: legalgems, Lawyer replied 8 months ago

Normally when a case number ***** ***** so long as the party was served, the court can later amend the case number, and deem it a "scrivener's error". Or the court will use Rule 15 -the relation back standard- if an amended motion is filed, and then have the amended motion relate back to the first motion -that rule is discussed here:

http://www2.txwb.uscourts.gov/opinions/opdf/13-01052-hcm_Marshall%20v.%20Urban_2015-04-06%2011;22;05.pdf

If one wishes to dismiss the adversarial case, under Rule 41 it would be a Notice of Dismissal if no response was filed in that case; otherwise it would require a Motion to Dismiss either generally labeled, or based on the specific reasoning.

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