Patrick Joseph Aughney and Soraya Aughney

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
PATRICK and SORAYA AUGHNEY, 	No. 10-12666
Debtor(s).
______________________________________/
Memorandum on Motion to Expunge Class Claim
_________________
The motion of Chapter 13 debtors Patrick and Soraya Aughney to expunge a class proof of
claim came on for hearing on January 14, 2011. A similar motion in the related case of Certified
Parking Attendants, LLC, was heard earlier on the same calendar and the court states its reasoning in
that case on the record. When this case was called, all counsel assumed correctly that the court’s
ruling would be substantially the same and did not argue the matter further. The court issues this
memorandum to explain its reasoning due to the lack of a meaningful record in this case.
The essential problem with a class proof of claim is that class action procedures often conflict
with established bankruptcy procedures. See In re Musicland Holding Corp., 362 B.R. 644, 650 , 651
(Bankr. S.D.N.Y. 2007). However, class claims can be allowed, especially where a class was certified
before bankruptcy or principles of equity and simple justice militate in favor of a claim being pursued
on behalf of a class. In re Birting Fisheries, Inc., 92 F.3d 939 (9th Cir. 1996). Those considerations are
not present here.
In prerequisite for allowance of a class proof of claim is that the proponent must seek and
obtain a determination of the Bankruptcy Court that Rule 7023 of the Federal Rules of Bankruptcy
Entered on Docket
February 04, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-12666 Doc# 58 Filed: 02/04/11 Entered: 02/04/11 13:31:51 Page 1 of 2

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Procedure be made applicable to the claims process. 	Until that is done, a class proof of claim is not
proper. In re American Reserve Corp., 840 F.2d 487, 488 (7th Cir. 1988); Reid v. White Motor Corp.,
886 F.2d 1462, 1470-71 (6th Cir. 1989). That has not been done here.
Moreover, it appears that the putative class members are not representative of the class they
purport to represent, as none of them were employed in the 180 days before bankruptcy and therefore
cannot have priority claims.1 A class representative must be a member of the class he claims to
represent. General Telephone Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740
(1982).
For the foregoing reasons, the motion to expunge the class claim will be granted. An
appropriate order will be entered.
Dated: February 4, 2011
SAlan Jaroslovsky
U.S. Bankruptcy Judge
1The debtors point out, quite correctly, that the opposition to their motion was tardy. Claimants
do not dispute that they do not have priority claims and therefore cannot represent the class. Since the
court has taken no testimony on this issue, however, its finding remains tentative and can be
reconsidered pursuant to Rule 3008 of the Federal Rules of Bankruptcy Procedure.
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Case: 10-12666 Doc# 58 Filed: 02/04/11 Entered: 02/04/11 13:31:51 Page 2 of 2