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Pier Paolo Caputo, Esq. SBN 1766981010 Wilshire Blvd. #113Los Angeles, CA 90017213.596.7977 TEL
Attorney for DebtorMANUEL ZARAGOSA
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
MANUEL ZARAGOSA,
Debtor.
Case No. 2:10-bk-44207-VK
Chapter 13
DEBTORS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE, INADVERTANCE OR NEGLECT AND TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING DOCUMENTS AND FOR A CONFIRMATION HEARING
[No Hearing Required Pursuant to Local Bankruptcy Rule 9020-1 Unless Court So Orders]
Date (TO BE SET)TimeCrtm
TO THE HONORABLE VICTORIA S. KAUFMAN, UNITED STATES BANKRUPTCY
JUDGE; NANCY K. CURRY, CHAPTER 13 TRUSTEE; THE OFFICE OF THE U.S. TRUSTEE;
AND ALL PARTIES OF INTEREST:
Application to Reopen a Closed Case - 1
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Debtor/Applicant, MANUEL ZARAGOSA, hereby applies for an order shortening time on the
MOTION TO VACATE DISMISSAL BASED ON MISTAKE, INADVERTANCE OR NEGLECT
AND TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING
DOCUMENTS AND FOR A CONFIRMATION HEARING.
Debtor is filing this motion as an emergency as so they can get the Confirmation hearing back
on calendar, and be able to file case opening schedules and chapter 13 plan so that Debtor does not
lose his home.
Debtor and Debtor’s attorney attempted to contact Nancy K Curry to request the
postponement of his 341 hearing since he knew in advance that he would be unable to appear,
however they were unsuccessful in their attempt and misunderstood counsels’ instructions that
appearance was mandatory and was dismissed for non appearance at the 341 hearing although
counsel was present.
Respectfully submitted,
Date: ____________________
Pier Paulo CaputoAttorney for Movant
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Pier Paolo Caputo, Esq. SBN 1766981010 Wilshire Blvd. #113Los Angeles, CA 90017213.596.7977 TEL
Attorney for DebtorMANUEL ZARAGOSA
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
MANUEL ZARAGOSA,
Debtor.
Case No. 2:10-bk-44207-VK
Chapter 13
DEBTORS’ EX PARTE MOTION FOR ORDER SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE INADVERTANCE OR NEGLECT TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING DOCUMENTS AND FOR A CONFIRMATION HEARING, DECLARATION OF DEBTOR MANUEL ZARAGOSA AND DOLLY YOOZBASHIZADEH IN SUPPORT THEREOF
[No Hearing Required Pursuant to Local Bankruptcy Rule 9020-1 Unless Court So Orders]
Date (TO BE SET)TimeCrtm
TO THE HONORABLE VICTORIA S. KAUFMAN, UNITED STATES BANKRUPTCY
JUDGE; NANCY K. CURRY, CHAPTER 13 TRUSTEE; THE OFFICE OF THE U.S. TRUSTEE;
AND ALL PARTIES OF INTEREST:
Application to Reopen a Closed Case - 3
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COMES NOW THE DEBTOR, by and through attorney of record Pier Paolo Caputo,
Attorney at Law, hereby moves the Court for an EX PARTE MOTION SFOR ORDER
SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE,
INADVERTANCE OR NEGLECT AND TO REINSTATE CASE IN ORDER TO FILE CASE
OPENING DOCUMENTS, A CH 13 PLAN AND FOR A CONFIRMATION HEARING, based
upon the following facts and circumstances and shown by the Declarations of Debtor, MANUEL
Zaragosa and Dolly Yoozbashizadeh, and exhibits attached in support thereof.
1. This Court has jurisdiction over this matter pursuant to 11 U.S.C. Sec. 109 and 349 and
rules 8002, 9006, 9013, 9022, and 9024 of the Federal Rules of Bankruptcy Procedures.
Respectfully submitted,
Date: ____________________
Pier Paulo CaputoAttorney for Movant
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STATEMENT OF FACTS
1. Debtor filed a Chapter 13 case herein on August 16, 2010.
2. On August 28, 2010, Debtor filed a Motion to Extend Time to File Case Opening
Documents so that he may obtain legal assistance with the preparation of documents and
possibly hire an attorney to assist with the bankruptcy; although an order was attached to
the motion, the judge did not rule on the motion. See Attached Exhibit “A”.
3. Debtor retained the services of Attorney Pier Paolo Caputo to assist with the completion
of his bankruptcy and on September 23, 2010 Mr. Caputo filed the Substitution of
Attorney on behalf of Mr. Manuel Zaragosa. See Attached Exhibit “B”.
4. On September 22, 2010, Paralegal Dolly Yoozbashizadeh made several phone calls and
sent an e-mail to Trustee Nancy K. Curry requesting instructions on how to request the
postponement of the Debtors 341 hearing. See Attached Exhibit “C”.
5. On September 27, 2010, Paralegal Dolly Yoozbashizadeh sent a fax to Trustee Nancy K.
Curry’s office stating the numerous attempts to contact Trustee Nancy K. Curry in regards
to the rescheduling of the 341 hearing so that Mr. Caputo would have sufficient time to
prepare Debtor’s case opening schedules and chapter 13 Plan prior to the hearing. See
Attached Exhibit “D”.
6. On September 29, 2010, Paralegal Dolly Yoozbashizadeh informed Debtor Manuel
Zaragosa that she was unable to reach Trustee Nancy K. Curry and that his appearance at
the 341 hearing was mandatory. Debtor informed Paralegal Dolly Yoozbashizadeh that
despite his best attempts to appear he would be unable to do so because his work schedule
would not allow him to miss work to appear.
Application to Reopen a Closed Case - 5
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7. Debtor’s attorneys’ paralegal, Dolly Yoozbashizadeh, by mistake believed that since she
made several attempts to contact Trustee Nancy K. Curry, and would appear with the
attorney on behalf of Debtor at the 341 hearing on September 30, 2010, to show Ms.
Curry the numerous attempts to reach her and request that the 341 meeting be postponed,
that Trustee Nancy K. Curry would grant the postponement of the hearing and would
forgive Debtor for not being able to appear.
8. Debtor would like to reinstate the Confirmation hearing for January 27, 2011and to be
allowed to file case opening documents and chapter 13 Plan.
9. If Debtor is unable to have the case reinstated, Debtor is afraid that he will lose his home.
Application to Reopen a Closed Case - 6
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MEMORANDUM OF POINTS AND AUTHORITIES
I.UPON SHOWING GOOD CAUSE THE COURT MAY ON ITS OWN DISCREDTION
ORDER THE PERIOD REDUCED
Rule 9006 of the Bankruptcy Rule provides, in its most pertinent part as follows
“When an act is required to be done at or within a specified timeby these rules or by notice given thereunder or by order of the court,the court for cause shown may on its own discretion with or without motion or notice order the period reduced”
Local Bankruptcy Rule 9075-1 provides that:
“For cause shown, a party may request an emergency motion to be heard on notice shorter than would otherwise be required by these Local Bankruptcy Rules”
As demonstrated in this Application, Debtor’s attorney’s Paralegal made a mistake in believing that Trustee Nancy K. Curry would allow the 341 hearing to be postponed so that case opening documents could be filed and the Debtor would be able to appear at the postponed hearing. Debtor is afraid that without completing his bankruptcy and receiving a discharge, that he will lose his home.
II.DUE TO MISTAKE, INADVERTANCE, SURPRISE OR NEGLECT UPON DEBTOR,
SETTING ASIDE OF DISMISSAL OF AND REINSTATING THE CHAPTER 13 SHOULD BE GRANTED
Bankruptcy Rule 9024 Provides that Federal Rules of Civil Procedure 60 supplies in cases under the Code.
F.R.C.P. 60(b) provides in pertinent part
“On motion and upon such terms as are just, the Court may relieve aparty or a party legal representative from a final judgement, order or proceeding for the following reasons: 1) mistake, inadvertence, surpriseor excusable neglect, 2)newly discovered evidence which by due diligence could not have been discovered in time to move for a new trialunder Rule 59(b).”
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In the case herein, Debtor’s attorneys’
paralegal, Dolly Yoozbashizadeh, by mistake
believed that Trustee Nancy K. Curry would
allow the 341 hearing to be rescheduled upon
providing evidence of the several attempted
contacts with trustees office to request such
postponement and would excuse Debtor from his
non appearance at the hearing.
Based on mistake, inadvertence or excusable
neglect of Debtor’s attorney’s paralegal Dolly
Yoozbashizadehs’ assumption, the Debtors case
was dismissed and now Debtor could lose his
home if this motion is not heard on shortened
notice so that Debtor could have the case
reinstated and allowed to file case opening
documents and chapter 13 Plan to be filed as well
as Confirmation hearing heard on January 27,
2011.
III.
CONCLUSION
Based upon the foregoing, Movant requests
that the Court enter an Order Granting Movant’s
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EX PARTE MOTION SFOR ORDER
SHORTENING TIME FOR MOTION TO
VACATE DISMISSAL BASED ON MISTAKE,
INADVERTANCE OR NEGLECT AND TO
REINSTATE CASE IN ORDER TO FILE CASE
OPENING DOCUMENTS, A CH 13 PLAN
AND FOR A CONFIRMATION HEARING.
Debtor also requests that the automatic stay be
valid from the day of filing Nune Pro Tune on
August 16, 2010.
Respectfully submitted,
Date:
____________________
Pier Paulo Caputo
Attorney for Movant
PROOF OF SERVICE
STATE OF CALIFORNIA COUNTY OF LOS
ANGELES
I am employed in the County of Los Angeles,
State of California. I am over the age of 18 and
not a party to the within action, my business
address is 1010 Wilshire Blvd. #113 Los Angeles,
CA 90017.
Application to Reopen a Closed Case - 8
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On _________________ I served the
foregoing document described as EX PARTE
MOTION SFOR ORDER SHORTENING TIME
FOR MOTION TO VACATE DISMISSAL
BASED ON MISTAKE, INADVERTANCE OR
NEGLECT AND TO REINSTATE CASE IN
ORDER TO FILE CASE OPENING
DOCUMENTS, A CH 13 PLAN AND FOR A
CONFIRMATION HEARING on all interested
parties in this action by placing a true and correct
copy in a sealed envelope with postage thereon
fully prepaid in the United States mail at the City
of Los Angeles, California as follows:
SEE ATTACHED LIST
I declare that I am employed in the office of a
member of the bar of this court at whose direction
the service was made.
_________________________________
Dolly Yoozbashizadeh, Paralegal
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Pier Paolo Caputo, Esq. SBN 1766981010 Wilshire Blvd. #113Los Angeles, CA 90017213.596.7977 TEL
Attorney for DebtorMANUEL ZARAGOSA
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
MANUEL ZARAGOSA,
Debtor.
Case No. 2:10-bk-44207-VK
Chapter 13
DECLARATION OF DEBTOR MANUEL ZARAGOSA
DECLARATION OF DEBTOR MANUEL ZARAGOSA
I, Manuel Zaragosa, declare as follows:
I am the debtor in the above listed matter, and have
personal knowledge of the facts set forth
in this declaration and, if called as a witness, would be
competent to testify to those acts.
Application to Reorder Closed Case - Declaration
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1. I am the Debtor in the above listed bankruptcy.
2. On September 21, 2010 I signed the substitution of attorney appointing Mr. Pier Paolo Caputo
as my attorney for the above listed matter.
3. I made several calls to trustee Nancy K. Curry’s office in an attempt to request the
postponement of my 341 hearing prior to retaining my attorney because I was not able to
take the day off from work and appear.
4. I requested that my attorney attempt to reach Trustee Nancy K. Curry’s office to request the
postponement of my 341 hearing because I was unable to take time off from work to appear.
5. On September 29, 2010, I was contacted by Dolly Yoozbashizade, a paralegal employed by
Mr. Caputo and instructed that my appearance was mandatory at the 341 hearing and I
responded to Mrs. Yoozbashizadeh by letting her know that I would not be able to attend.
6. On September 29, 2010, Paralegal Dolly Yoozbashizadeh informed that she would appear on
my behalf with the attorney at the scheduled 341 hearing and request the postponement on my
behalf and that she believed Trustee Nancy K. Curry would grant us the postponed hearing
upon seeing proof of the many attempts to contact her and her office to make the request and
being unsuccessful at reaching the Trustee or any of her employees.
7. On September 30, 2010 I was contacted by Paralegal Dolly Yoozbashizadeh who informed
me that she had appeared with the attorney at the 341 hearing and that Trustee Nancy K. Curry
would nor postpone the hearing and additionally that my case would be dismissed.
8. On October 5, 2010 I received notice that my case had been ordered for dismissal.
9. This declaration is in support of the ex parte motion for order shortening time for motion to
vacate dismissal based on mistake, inadvertence or neglect and to reinstate case for filing of
case opening documents, chapter 13 plan and for a confirmation hearing.
Application to Reorder Closed Case - Declaration
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10. I respectfully request that the order of dismissal is vacated so that I may keep my home which
will be eminent if the order of dismissal is not vacated.
11. I have every reason to believe that my plan will be confirmed and that I will be able to carry
out the plan to the end of its term.
I declare under the penalty of perjury, under the laws of the state of California, that the foregoing
is true and correct.
Dated:
______________________Manuel Zaragosa, Debtor
Application to Reorder Closed Case - Declaration
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Pier Paolo Caputo, Esq. SBN 1766981010 Wilshire Blvd. #113Los Angeles, CA 90017213.596.7977 TEL
Attorney for DebtorMANUEL ZARAGOSA
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
MANUEL ZARAGOSA,
Debtor.
Case No. 2:10-bk-44207-VK
Chapter 13
DECLARATION OF DOLLY YOOZBASHIZADEH
DECLARATION OF DOLLY YOOZBASHIZADEH
I, Dolly Yoozbashizadeh, declare as follows:
I am over the age of 18, and have personal knowledge of
the facts set forth in this declaration
and if called as a witness, would be competent to testify tot
hose facts.
Application to Reorder Closed Case - Declaration
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1. I am employed as a paralegal at the Law Offices of Paul Caputo, the attorney who represents
Mr. Manuel Zaragosa in the bankruptcy matter stated above.
2. I made several attempts on behalf of Mr. Manuel Zaragosa to reach Trustee Nancy K. Curry
to request the postponement of the scheduled 341 hearing so that Mr. Zaragosa would be able
to take time off from work and appear and so that Attorney Pier Paolo Caputo would have
time to prepare the Debtors case opening documents and chapter 13 Plan.
3. On September 29, 2010, I was contacted by Mr. Zaragosa, and instructed him that his
appearance was mandatory at the 341 hearing and he informed me that he would not be able to
attend.
4. On September 29, 2010, I informed Mr. Zaragosa that she would personally appear on
his behalf with the attorney at the scheduled 341 hearing and request the postponement on
and I stated that I believed Trustee Nancy K. Curry would grant us the postponed hearing
upon seeing proof of the many attempts to contact her and her office to make the request and
being unsuccessful at reaching the Trustee or any of her employees.
5. On September 30, 2010 I contacted Mr. Zaragosa to inform him that I had appeared at the
hearing with the attorney and that Trustee Nancy K. Curry would not postpone the hearing and
additionally that I was informed that Mr. Zaragosa’s case would be dismissed for non
appearance.
6. On October 5, 2010 I received notice that Mr. Zaragosa’s case had been ordered for dismissal.
7. There was a mistake on my part in assuming that Trustee Nancy K. Curry would postpone the
341 hearing upon seeing the numerous attempts I made in trying to reach her or her office.
Application to Reorder Closed Case - Declaration
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8. I made this assumption because I have other cases where I needed to contact Trustee Nancy K.
Curry and was unable to, and upon appearing at the 341 hearing and speaking with the Trustee
I was granted postponed hearings so that the client would be able to appear.
9. This declaration is in support of the ex parte motion for order shortening time for motion to
vacate dismissal based on mistake, inadvertence or neglect and to reinstate case for filing of
case opening documents, chapter 13 plan and for a confirmation hearing as I had appeared in
at other 341 hearings with Ms. Nancy K. Curry and had presented her with similar attempts to
notify her and her office and was granted postponed hearings.
I declare under the penalty of perjury, under the laws of the state of California, that the foregoing
is true and correct.
Dated:
______________________Dolly Yoozbashizadeh, Paralegal
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Application to Reorder Closed Case - Declaration