2:13-bk-35116•Minon Miller
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION In re MINON MILLER, Debtor. Case No. 2:13-bk-35116-RK Chapter 7 ORDER DENYING MOTION FOR LEAVE TO AMEND MOTION TO DISMISS WITH NONDISCHARGEABILITY COMPLAINT AND FOR “RELATION BACK”; OR, IN THE ALTERNATIVE, TO AMEND BASIS OF MOTION TO DISMISS Hearing Date: April 22, 2014 Time: 2:30 p.m. Courtroom: 1675 On March 24, 2014, Edward Gilliam (“Creditor”) filed a Motion for Leave to Amend Motion to Dismiss with Nondischargeability Complaint and for “Relation Back”; or, in the Alternative, to Amend Basis of Motion to Dismiss (Docket No. 51) (the “Motion”). Creditor’s Motion came on for hearing at the above-captioned date and time. Appearances were as noted on the record. The court hereby denies Creditor’s motion for leave to amend motion to dismiss with nondischargeability complaint and for relation back because the original motion to dismiss does not put the debtor on notice of the nature of the claim in the proposed FILED & ENTERED APR 24 2014 CLERK U.S. BANKRUPTCY COURT Central District of California BY DEPUTY CLERK gae Case 2:13-bk-35116-RK Doc 63 Filed 04/24/14 Entered 04/24/14 13:03:09 Desc Main Document Page 1 of 2
2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint to determine debt dischargeability and the debt nondischargeability relief sought in the complaint. The original motion to dismiss sought dismissal of the bankruptcy case and relief from the automatic stay, but did not seek determination of dischargeability of debt or denial of discharge. Thus, this situation is more like In re Marino, 37 F.3d 1354 (9th Cir. 1994) and In re Markus, 313 F.3d 1146 (9th Cir. 2002) than like In re Dominguez, 51 F.3d 1502 (9th Cir. 1995). The court hereby also denies Creditor’s motion to amend basis of motion to dismiss as unnecessary because Creditor may seek to dismiss the bankruptcy case for bad faith filing under 11 U.S.C. § 707(b)(3) because that section was amended in 2005 to permit a bankruptcy court to dismiss for bad faith under 11 U.S.C. § 707(b)(3)(A) as recognized by the court in In re Mitchell, 357 B.R. 142 (Bankr. C.D. Cal. 2006). Since Creditor may properly seek relief for dismissal of the case for bad faith under that provision, there is no need to amend the motion to assert relief under 11 U.S.C. § 707(a). IT IS HEREBY ORDERED that Creditor’s Motion is denied. IT IS SO ORDERED. ### Date: April 24, 2014 Case 2:13-bk-35116-RK Doc 63 Filed 04/24/14 Entered 04/24/14 13:03:09 Desc Main Document Page 2 of 2
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