IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
|DO NOT PUBLISH
This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
NANCY MARIE CHAFFIN, No. 97-10868
HEUNG TOW KEE, et al.,
v. A.P. No. 97-1151
NANCY MARIE CHAFFIN,
One of the plaintiffs in this action, WA Investment Group, is a California corporation. When
the complaint was filed, it was not in good standing due to failure to pay its taxes. It did not take
care of this problem until after the last day to file this action pursuant to FRBP 4007(c). The
defendant debtor seeks dismissal of this plaintiff's claims.
Pursuant to FRBP 7017, a plaintiff's capacity to sue is governed by state law. Under
California law, revival of a corporation after the running of the statute of limitations does not
revive a complaint and make it timely. American Alternative Energy Partners II v. Windridge,
, 42 Cal.App.4th 551, 563 (1996).
The time limit of FRBP 4007(c) is not a statute of limitations, but it is the equivalent of one.
In re Hill
, 811 F.2d 484, 487 (9th Cir.1987); In re Burns
, 102 B.R. 750, 752 (9th Cir.BAP 1989);
In re Santos
, 112 B.R. 1001, 1004-5 (9th Cir.BAP 1990). Most significantly, the failure of a
plaintiff to file by the Rule 4007(c) deadline is an affirmative defense which can be raised by the
debtor. In re Santos
, supra, at 1008. Revival of a suspended corporation is without prejudice to
any defense which has accrued by reason of the original suspension. American Alternative
Energy Partners II v. Windridge, Inc.
Since revival is without prejudice to accrued defenses, and since WA Investment Group was
not revived before the last day to file timely dischargeability actions, the debtor's motion to
dismiss the claims of that corporation will be granted. The case will proceed to trial as to the
remaining plaintiffs. Counsel for the debtor shall submit an appropriate form of order.
Dated: September 4, 1997 _______________________