Durrum v. Dame

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PRISCILLA M. DAME,
Debtor.
____________________________
MARY DURRUM,
Plaintiff,
v.
PRISCILLA M. DAME,
Defendant.
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Case No. 07-00634
(Chapter 7)
Adversary Proceeding No.
08-10008
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE MOTION TO DISMISS
This is an adversary proceeding brought in the name of the
debtor’s former landlord, as plaintiff, seeking a determination
that a debt arising out of the landlord-tenant relationship
between the parties is nondischargeable based on the debt being
for property or services obtained by fraud. 	The debtor,
proceeding pro se, filed a motion to dismiss on April 25, 2008.
The plaintiff has not responded to the motion to dismiss, but
this can be explained by the fact that the plaintiff apparently
The Memorandum Decision and Order below is hereby
signed. Dated: August 27, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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died on March 12, 2008, and in the meantime, the attorney who
filed the complaint has been attempting to obtain authority to
file a motion to substitute the estate of the deceased plaintiff
as the plaintiff. 	At a scheduling conference today, that
attorney represented that such a motion would be filed. 	The
debtor now has counsel in this case, but he has not filed any
memorandum supplementing the debtor’s motion to dismiss. 	So the
court has had not had the benefit of briefing of the issues by
counsel for either side.
The debtor’s motion to dismiss, as I understand it, asserts
that the only fraud alleged was with respect to the entry into
the lease between the parties, and that a settlement agreement
between the parties resulted in a novation such that only fraud
with respect to the settlement agreement could constitute a basis
for pursuing a nondischargeability complaint. 	At this juncture,
without the issues having been briefed by the parties’ counsel, I
am of the view that the motion ought to be denied based on Archer
v. Warner, 538 U.S. 314, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003),
and United States v. Spicer, 57 F.3d 1152, 1155 (D.C. Cir. 1995)
(“The weight of recent authority rejects” the novation theory),
cert. denied, 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 658
(1996). 	Moreover, the complaint alleges as well that there was
fraud in procuring the settlement agreement (and the services
called for by that agreement).
If I have misunderstood the debtor’s asserted grounds for
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3	O:\TEEL\Judge Temp Docs\Durrum v Dame (In re Dame) Mem Decsn & Order re MTD Based on Novation.wpd
dismissal, or her counsel can demonstrate that the foregoing
analysis is flawed, she may renew her motion to dismiss so that
the court has the benefit of the parties’ counsels’ briefing of
the issues. 	In the meantime, the debtor’s counsel has stated an
intention to seek dismissal by September 12, 2008, on the
alternative ground that the adversary proceeding complaint was a
nullity because the plaintiff died prior to the filing of the
complaint (and he has noted that a new adversary proceeding
brought by the estate of the deceased plaintiff would be time-
barred under Fed. R. Bankr. P. 4007(b)). 	In accordance with the
foregoing, it is
ORDERED that the debtor’s motion to dismiss this adversary
proceeding is denied without prejudice to the filing of a motion
to dismiss on new grounds (or on grounds contending that the
court has misconstrued the grounds of the current motion to
dismiss or that the foregoing analysis is flawed). 	It is further
ORDERED that any motion to dismiss shall be filed by
September 12, 2008, failing which an answer shall be filed by
that date.
[Signed and dated above.]
Copies to: Andre P. Barber, Esq.; Ronald L. Schwartz, Esq.;
Debtor.
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