Bankruptcy, Deadlines: Plaintiff Chapter 7 Bankrupt Who Filed Fee Motion One Year After Dismissal Did So Untimely

 

Also, Chapter 7 Trustee Properly Dismissed Case Against Defendants, With Chapter 7 Trustee “Owning” the Dismissed Claims.

     Plaintiff, a Chapter 7 bankrupt, tried to get attorney’s fees a year after one of his actions was dismissed in favor of defendants by the Chapter 7 trustee under a settlement agreement. Plaintiff still went to trial, but was non-suited. A year later, plaintiff filed a motion for attorney’s fees as a prevailing party against defendants. The motion was denied.

     That result was upheld in Sui v. 2176 Pacific Homeowners Assn., Case No. G049822 (4^th Dist., Div. 3 Feb. 24, 2015) (unpublished), a 3-0 decision authored by Justice Ikola.

     The upfront problem was that the fee motion was filed a year after the lawsuit dismissal, not the required 60 days under California Rules of Court. Plaintiff argued the dismissal by the Chapter 7 trustee was invalid because no consent was given by plaintiff, but this contention failed because the causes of action in the dismissed lawsuit belonged to the Chapter 7 trustee. Finally, the settlement agreement specified that each side would bear their own respective costs and fees, another independent reason to support the decision below—although the untimeliness of the fee request was the only reason needed by the appellate court to sustain the fee denial ruling.