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

moran_cathy
December 1, 2024
Stay tuned as next week we will bring you the Counter-Point to Moran’s POV.
Members
Hayes Jury
November 3, 2024
“I had a profound thought - what in the world is the two-dismissal rule? I guess the 9th Circuit wondered the same thing because it affirmed . . . bankruptcy court’s dismissal of a debtor’s declaratory relief complaint against a bank on the basis that the debtor had previously filed three other cases and then voluntarily dismissed them.”
connelly
August 4, 2024
This week, Judge Connelly brings Academy subscribers a real treat. Got a rule change idea? Learn how you can help shape the process. Submit your suggestions and be part of the evolution of bankruptcy procedure!
Members
March 24, 2019
By Wm. Houston Brown, United States Bankruptcy Judge (Retired) Discharge - Paying more than original loan balance would be undue hardship. The 59-year old debtor employed in aging and disability services couldn’t maintain a minimal living standard without discharge of substantial portion of student loan debt. The Court identified factors included in “minimal standards” in modern American society and found...
Members
December 15, 2019
Two things taxpayers can do to protect themselves from identity theft is to use strong passwords and keep those passwords secure. While many people use fingerprint or facial recognition technology to protect their devices, sometimes it’s still necessary to use a password. In recent years, cybersecurity experts’ recommendations on what constitutes a strong password has changed. With that in mind,...
Copy of Hildebrand-2016
Although Acevedo does not prohibit the court from entering an order ex post facto, to obtain an order authorizing employment of a professional effective from the date of filing application, must be based upon compelling and unusual circumstances.
Members
Copy of Hildebrand-2016
In determining the appropriate “present value” factor to be added to the payment of a secured claim in a Chapter 12, the Court should look at the “riskless” treasury rate rather than the “prime rate” before enhancing it with a risk factor.  (Ebinger) Farm Credit Services of America v. Topp, 2022 WL 2981590 (S.D. Iowa, July 19, 2022) Case Summary...
Members
August 22, 2021
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) While the best interests of creditors test is applicable upon modification of a Chapter 13 plan, post-petition acquired property of the estate is not included in such analysis in that such property would not be property of a Chapter 7 estate. (Somers) In re Taylor, 2021 WL 3118824 (Bankr....
Members
July 28, 2019
By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division Click here for Part 1 Click here for Part 2 C. What Post-Petition Assets Are Property . . . It looks like you are not signed in or registered! This content is only available to members. Join Now Or Sign In Below: Username or Email Password...
Members
Copy of Hildebrand-2016
March 19, 2023
Below-median Chapter 13 debtor bears the burden of justifying a plan longer than three years as confirmation of a five-year plan would be denied as providing insufficient justification to exceed three years. (Robinson) In re Ingram, 2023 WL 2529730 (Bankr. N.D. Ala. March 15, 2023) Case Summary Danny Ingram filed four bankruptcy cases over 20 years. He was single with...
Members

Looking to Become a Member?

ConsiderChapter13.org offers a forum to advance continuing education of consumer bankruptcy via access to insightful articles, informative webinars, and the latest industry news. Join now to benefit from expert resources and stay informed.

Webinars

These informative sessions are led by industry experts and cover a range of consumer bankruptcy topics.

Member Articles

Written by industry experts, these articles provide in-depth analysis and practical guidance on consumer bankruptcy topics.

Industry News

The Academy is the go-to source for the latest news and analysis in the Chapter 13 bankruptcy industry.

To get started, please let us know which of these best fits your current position: