FOR THE NORTHERN DISTRICT OF CALIFORNIA
ELIZABETH MULDER, No. 1-86-00026
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
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
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 _______________________