Akers v. Mattei (In re Dugger), No. SC-11-1052, 2012 WL 2086562, at *7–*9 (B.A.P. 9th Cir. June 8, 2012) (Pappas, Markell, Case)

Two-year limitation in § 546(a) bars Chapter 7 trustee’s avoidance action after conversion from Chapter 13 when Chapter 7 trustee failed to prove “extraordinary circumstances” to support equitable tolling; Chapter 13 trustee was not aware of potentially avoidable transfers, but to carry burden of proof with respect to equitable tolling, Chapter 7 trustee must prove both due diligence and extraordinary circumstances. Chapter 13 case converted to Chapter 7 more than two years after the petition. There were real property interests that were not listed in the schedules during the Chapter 13 portion of the case. The limitation in § 546(a) had expired and would bar the Chapter 7 trustee’s recovery action unless the limitations statute was equitably tolled. “The two-year limitations period in § 546(a)(1) is subject to equitable tolling. . . . ‘A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.’ . . . [T]he modern burden of proof to invoke equitable tolling requires that Trustee show both due diligence and the presence of extraordinary circumstances. . . . ‘There is no evidence of wrongful conduct or fraud by the debtor or any other extraordinary circumstances during the relevant time period which justify equitable tolling.’”

No Author Biography has been linked to this Article.

Related Articles

July 5, 2020
By Anthony J. Gomez, CPA, former extern to the Honorable John P. Gustafson, Northern District of Ohio at Toledo V. The Good Faith Requirement The hanging paragraph was enacted to protect creditors. It accomplishes this by prohibiting the bifurcation of certain secured debts that were acquired shortly before the time of filing. Despite a Chapter 13 debtor’s inability to bifurcate...
Members
October 18, 2020
By Henry E. Hildebrand, III, Chapter 13 Trustee (Nashville, TN) There is no requirement to show a change in circumstance in order to modify a Chapter 13 plan pursuant to § 1329. Whaley v. Guillen (In re Guillen), 2020 WL 5015287 (11th Cir. Aug. 25, 2020) (Marcus) Case Summary Rachel Guillen filed a Chapter 13 petition in August of 2015....
Members
ahern_larry_regular
February 27, 2022
Background A recent Chapter 7 case out of the Bankruptcy Court for the Southern District of California, In re Rhodes,1 addressed reaffirmation in a context that should be of interest to debtor's attorneys. As explained in Part 1, Rhodes points out that the "ride-through" of a debtor's secured debt after a Chapter 7 — which Congress . . . It...
Members
Copy of Hildebrand-2016
August 14, 2022
Where a stipulation of a settlement of an objection to confirmation provided that a creditor’s claim would be “excepted from discharge pursuant to 11 U.S.C. § 523(a)(6)”, the stipulation would not prevent the discharge of the claim based upon a breach of fiduciary duty, tortious interference with business relations, unfair competition, defamation, and conversion which resulted in a state jury...
Members
December 13, 2020
By Hon. William Houston Brown, Adviser, Academy for Consumer Bankruptcy Education and Margaret A. Burks, Chapter 13 Trustee (Cincinnati, OH) Senator Elizabeth Warren (D. Mass.) and House Judiciary Committee Chairman Jerrold Nadler (D. N.Y.) have introduced the Consumer Bankruptcy Reform Act of 2020. Introduction of the Act is only the beginning of the legislative process, and no action toward enactment...
February 24, 2019
By Cathy Moran, Esq. (Redwood City, CA) We all get sucked in, at some time, to try and rescue a Chapter 13 bankruptcy case gone bad. Make sure that you don’t let a bad situation get worse. Get your arms around §109(g). When only a do-over will do, don’t wait around. No Payments for Months The debtor came to me...
Members
September 29, 2019
By Academy Staff Jeffrey M. Kellner graduated from THE Ohio State University in 1975. Between then and entering law school, Jeff worked in Montana for the park service. He graduated from Capital University College of Law in 1985. After law school, he worked for two years as a law clerk for Judge Calhoun in Columbus, OH. He then went to...
March 1, 2020
By William Houston Brown, Adviser, Academy for Consumer Bankruptcy Education, Inc. and Lawrence R. Ahern, III, Brown and Ahern (Nashville, TN) In two February opinions, the Supreme Court addressed issues that appear in bankruptcy cases, one dealing with a common practice of entering nunc pro tunc orders and the other affecting determination of property rights under state law. In a...
Members
Copy of Hildebrand-2016
October 30, 2022
In order for a debtor to succeed in setting aside a dismissal in a motion filed under Rule 9024, F.R.B.P., the debtor must prove specific grounds as outlined in Federal Rule of Civil Procedure 60(b). (Oxholm) In re Gardner, 2022 WL 654410 (Bankr. E.D. Mich. May 24, 2022) Case Summary Carl and Taisha Gardner filed Chapter 13 in September of...
Members
September 29, 2019
By The Honorable Hannah Blumenstiel Yes, MORE on SBRA. We realize that to attorneys February of 2020 seems a LONG way away but it really isn’t. We are building our library on this important legislation so it is available when YOU are ready for it. In this week’s installation, Judge Blumenstiel, analyzes the legislation. The first two and a half...
Members