New Bankruptcy Opinion: IN RE DELMAC CONSTRUCTION & DEVELOPMENT, INC. – Bankr. Court, CD California, 2015

In re: DELMAC CONSTRUCTION & DEVELOPMENT, INC., Chapter 7 Debtors.

Case No. 2:14-bk-32256-RK.

United States Bankruptcy Court, C. D. California, Los Angeles Division.

August 27, 2015.

ORDER DENYING MOTION OF GREAT AMERICAN INSURANCE COMPANY TO DISMISS WITHOUT PREJUDICE

ORDER NOT FOR PUBLICATION

ROBERT KWAN, Bankruptcy Judge.

Pending before the court is Great American Insurance Company’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(a) (“Motion”). ECF 21. The Motion is set for hearing before the court on September 1, 2015 at 3:00 p.m. Debtor through counsel has filed a written opposition to the Motion. ECF 25.

Having reviewed the moving and opposing papers, the court determines that oral argument is unnecessary, dispenses with oral argument, takes the Motion under submission, vacates the hearing on the Motion set for September 1, 2015, and rules as follows.

1. The court determines that the Motion should be denied for insufficient service of the Motion as required by 11 U.S.C. § 707(a) and Rules 1017, 2002(a)(4), 9013 and 9014 and Local Bankruptcy Rules 9013-1 and 9013-3, which require Movant to serve the Motion seeking dismissal of this Chapter 7 bankruptcy case under 11 U.S.C. § 707(a) on all creditors as well as the debtor, its counsel, the Chapter 7 trustee and the United States Trustee. See also, 1 March, Ahart and Shapiro, California Practice Guide: Bankruptcy, ¶¶ 5:2380 and 5:2040 at 5(II)-93 and 5(II)-35 (2014). The proof of service of the Motion shows that Movant served copies of the Motion on the debtor, its counsel, the Chapter 7 trustee, one secured creditor, Wells Fargo Bank, but not all creditors as indicated on the creditors’ mailing matrix in this case.

2. The Motion is denied without prejudice for insufficient service.

3. The hearing on the Motion, currently set for September 1, 2015 at 3:00 p.m. is vacated and taken off calendar. No appearances are required on September 1, 2015.

4. If Movant intends to remedy the service deficiency identified in this order and to refile the Motion, the court offers the following unsolicited guidance for the parties based on its review of the moving and opposing papers before it determined that service of the Motion was insufficient. The court had intended to issue a tentative ruling that would state that the court would treat the Motion to dismiss the bankruptcy case for cause under 11 U.S.C. § 707(a) as a contested matter under Rule 9014 of the Federal Rules of Bankruptcy Procedure, that the parties should meet and confer about scheduling pretrial and trial proceedings in this contested matter, including any discovery if they are requesting it, that the court would set a schedule of pretrial and trial proceedings at the hearing, that if the material facts are not in dispute in this contested matter, then the parties might want to consider filing cross-motions for summary judgment or trying the contested matter on stipulated facts, but that Movant may want to consider filing a motion for relief from the automatic stay under 11 U.S.C. § 362 as an alternative course of action to accomplish its non-bankruptcy litigation objectives.

IT IS SO ORDERED.

Save trees – read court opinions online on Google Scholar.

300x600

Leave a Reply