Ayala v. Turcios

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
KARLA V. TURCIOS,
Debtor.
____________________________
JOSE AYALA,
Plaintiff,
v.
KARLA V. TURCIOS,
Defendant.
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Case No. 08-00447
(Chapter 7)
Adv. Proc. No. 08-10029
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DENYING MOTION
FOR ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS AND DISMISSING THE COMPLAINT WITH PREJUDICE
AND SETTING HEARING ON MOTION TO VACATE DEFAULT JUDGMENT
This addresses the defendant’s Motion for Order Granting
Defendant's Motion to Dismiss and Dismissing the Complaint with
Prejudice (Dkt. No. 48). 	For the reasons that follow, I will
deny the motion.
On June 30, 2008, the defendant in the above-captioned
adversary proceeding commenced a case under Chapter 7 of the
Bankruptcy Code. 	Thereafter, on October 18, 2008, the plaintiff,
The document below is hereby signed.
Signed: August 04, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Jose Ayala, commenced this adversary proceeding seeking to have
judgment entered against the defendant in Ayala's favor declared
non-dischargeable under §§ 523(a)(2), (a)(4), and (a)(6) of the
Bankruptcy Code. 	After Turcios failed to file an answer to the
complaint, I entered a default judgment in favor of the plaintiff
on October 14, 2009. 	Turcios then filed a praecipe asking the
court to reconsider the default judgment, which I elected to
treat as a motion to set aside under Rule 60(b). 	In response to
Turcios's praecipe, I directed that by January 19, 2010, she
either file a verified answer or show cause why I ought not deny
her request to set aside the default judgment. 	The purpose of
requiring a verified answer was to ascertain whether Turcios had
a meritorious defense, one of the issues pertinent to a motion to
vacate a default judgment. 	Turcious then moved the court for
appointment of pro bono counsel, which I granted in an order
dated March 15, 2010. 	On March 26, 2010, Turcios filed an answer
and motion to dismiss. 	In an accompanying motion, she sought to
file the motion to dismiss out of time (i.e., after the January
19, 2010, deadline), contending that the motion to dismiss showed
cause why the default judgment should be vacated because it
allegedly demonstrated that the complaint had failed to state a
claim upon which relief could be granted. 	I granted the motion
to late-file the motion to dismiss, but did not set the motion to
vacate the default judgment for a hearing.
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On April 21, 2010, Ayala filed a motion to extend the time
to respond to the motion to dismiss. 	Prior to ruling on Ayala’s
motion to extend, Turcios filed a motion for an order to show
cause why the complaint should not be dismissed. 	On June 8,
2010, I granted Ayala's motion to extend the time to respond to
Turcios’ motion to dismiss and entered an order to show cause why
the case ought not be dismissed if Ayala failed to respond to
Turcios’ motion to dismiss within 14 days of the entry of that
order. 	After Ayala failed to timely respond to the order to show
cause, Turcios filed the motion addressed by this decision,
moving the court for an order granting her motion to dismiss and
to make the dismissal with prejudice. 	Ayala filed in opposition
to the motion and Turcios filed a reply.
Through what appears to be a comedy of errors, this case has
proceeded since the defendant filed her motion to dismiss as
though the court had granted the defendant's motion to vacate the
default judgment. 	In fact, however, that motion remains
unresolved. 	My December 29, 2009 Order to File Verified Answer
or Show Cause did not reach the merits of the defendant's motion
to vacate the default judgment. 	Rather, that order merely
directed the defendant to file a verified answer (meaning a
proposed verified answer) to accompany the motion to vacate so
that the court could evaluate whether Turcios had a valid
defense, an issue pertinent to the motion to vacate the default
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judgment. 	When the defendant thereafter responded to the Order
to File Verified Answer or Show Cause by requesting leave to file
her motion to dismiss out of time and the court granted the
motion, both the court and the parties, it appears, began
operating under the assumption that the default judgment was
vacated and that the court was proceeding as though the motion to
dismiss was the current matter before the court. 	In actuality,
though, the motion to dismiss will not be ripe or necessary, for
that matter, until the court rules on the motion to vacate the
default judgment. 	And, necessarily, only if the court rules
favorably on the defendant's motion to vacate the default
judgment will the plaintiff be required to file an opposition to
the motion to dismiss.
The motion to dismiss (Dkt. No. 36) remains pertinent as a
supplement to the motion to vacate the default judgment (as it is
evidence of what defenses Turcios would raise if permitted to
defend against the complaint), but unless and until the motion to
vacate the default judgment is granted, it is not a motion to
which Ayala is required to respond. 	Accordingly, the defendant's
Motion for Order Granting Defendant’s Motion to Dismiss and
Dismissing the Complaint with Prejudice (Dkt. No. 48) is
premature and must be denied. 	It is thus
ORDERED that the defendant's Motion for Order Granting
Motion to Dismiss and Dismissing the Complaint with Prejudice
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(Dkt. No. 48) is DENIED. 	It is further
ORDERED that on September 14, 2010, at 10:30 a.m. the court
will hold a hearing on the defendant's motion (Dkt. No. 27) to
vacate the default judgment, as supplemented by the motion to
dismiss (Dkt. No. 36) that would be pursued if the motion to
vacate were granted, and as supplemented by the answer (Dkt. No.
38) that would be pursued if the motion to dismiss were allowed
to be pursued but were to be denied. 	It is further
ORDERED that by August 23, 2010, the defendant Turcios may
file a supplement to her motion to vacate, setting forth grounds
cognizable under Rule 60(b) for vacating the default judgment.
It is further
ORDERED that by September 9, 2010, the plaintiff Ayala may
file a response to any supplement to the defendant Turcios’
motion to vacate the default judgment that the defendant Turcios
files or may instead elect to appear at the September 14, 2010
hearing and oppose the motion at that time.
[Signed and dated above.]
Copies to: All counsel of record; Office of United States
Trustee.
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