In re Pirzadeh

Full title: In re HAMID PIRZADEH, Debtor(s)

Court: United States Bankruptcy Court, N.D. California

Date published: Sep 21, 2007

No. 97-72034 (Bankr. N.D. Cal. Sep. 21, 2007)

Opinion

No. 97-72034.

September 21, 2007

Memorandum on Motion to Reopen Case

ALAN JAROSLOVSKY, Bankruptcy Judge

This Chapter 13 case was closed almost five years ago. Debtor Hamid Pirzadeh has now moved, by noticed motion, for an order reopening the case so that he can amend his schedules to add creditors Carelle and Mahmood Karimimanesh. Taking the bait, these creditors and the Chapter 13 trustee oppose the motion.

A motion to reopen a case is a ministerial matter, and is properly presented to the court ex parte. Reopening a case does not affect anyone's rights, and merely creates a forum for resolving a dispute. For this reason, it is generally error for a court to deny reopening because the court does not believe the debtor's position on the underlying dispute has merit. In re Menk, 241 B.R. 896, 914-16 (9^th Cir. BAP 1999).

However, there is one exception. A motion to reopen a case must be denied when it would not result in any relief. In affirming the bankruptcy court's refusal to allow a debtor to reopen his case to schedule an omitted creditor, the Court of Appeals noted: "After [a case] has been closed, dischargeability is unaffected by scheduling; amendment of [the debtor's] schedules would thus have been a pointless exercise." In re Beezley, 994 F.2d 1433, 1434 (9^th Cir. 1993). See also In re Madaj, 149 F.3d 467, 468 (9^th Cir. 1998) [Reopening case merely to schedule an omitted creditor "is for all practical purposes a useless gesture."

There is certainly a bankruptcy dispute at the bottom of the debtor's motion: whether the debt to the Karimimaneshs is dischargeable pursuant to § 523(a)(3) of the Bankruptcy Code even though it was never scheduled. However, Rule 7001(6) of the Federal Rules of Bankruptcy Procedure requires that this dispute be resolved in an adversary proceeding. It is not necessary for the base case to be reopened in order to file such an adversary proceeding. In re Staffer, 306 F.3d 967, 972-73 (9^th Cir. 2002).

For the foregoing reasons, the debtor's motion to reopen his Chapter 13 case will be denied, without prejudice to his right to file an adversary proceeding and without prejudice to an ex parte motion to reopen for a proper purpose.