Memorandum of Decision Re: Withdrawal of Withdrawal of Claim

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re ELIZABETH MULDER,                                        No. 1-86-00026 Debtor. ___________________________/
Memorandum of Decision
     There is a surplus in this Chapter 7 estate, which the trustee will return to the debtor if there are no allowed claims which remain unpaid. Creditor Noyo Investment Company argues that its claim should be allowed and paid.      Noyo filed a timely claim in this case in 1988. On June 12, 1992, it filed a withdrawal of its proof of claim. On February 16, 1993, it filed a pleading entitled "Withdrawal of Withdrawal of Claim." On the objection of the trustee, the court ruled that a claim may not be revived by withdrawing a withdrawal, and that the underlying claim was in any event barred by the applicable statute of limitations. Noyo has moved for reconsideration, bringing forward a new document having bearing on the statute of limitations issue.      The court sees no reason to change its ruling regarding Noyo's inability to withdraw its withdrawal. Withdrawal of a claim is governed by FRBP 3006. The effect of a withdrawal is the same as the voluntary dismissal of an adversary proceeding. See the Advisory Committee note to Rule 3006. While the withdrawal may be without prejudice, a new proof of claim must be filed to reassert the claim. The original claim cannot be revived by "withdrawing the withdrawal" any more than a lawsuit can be be revived by "dismissing a dismissal."      However, a finding that the original claim cannot be revived does not end the dispute. Since there is a surplus after timely filed claims have been paid, a late claim may be paid pursuant to section 726(a)(3) of the Bankruptcy Code if it is otherwise allowable. This means that the statute of limitations issue must be addressed.      Noyo's claim is based on a note all due and payable on June 25, 1981. Both sides agree that a four-year statute of limitations is applicable, so that the statute would have run before the 1986 bankruptcy filing in the absence of any tolling of the statute. However, Noyo argues that a written agreement between Noyo and the Mulders in January, 1984, started a new four-year period.      A mere acknowledgment of a debt is sufficient to start a new limitations period, even if it does not include a promise to pay. Western Coal & Mining Co. v. Jones, 27 Cal.2d 819, 822 (1946). The 1984 agreement discusses the "amount of monies owed by MULDER to NOYO INVESTMENT COMPANY, INC., . . . said amounts to be approximately $55,882.78 . . . ." This was clearly an acknowledgment. Accordingly, the claim is not barred by the statute of limitations.      For the reasons stated above, Noyo's motion for reconsideration will be granted in part. Noyo shall have an allowed, tardily filed claim which shall be paid pursuant to section 726(a)(3) of the Code.      Counsel for Noyo shall submit an appropriate form of order.
Dated: June 19, 1993                                                                              _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy