In re Circuit City Stores, Inc. Here, the Trustee's jurisdictional challenge is factual. Accordingly, the Debtors had no interest in the Mortgage Loan as of the petition date and the Mortgage Loan was not property of the estate. What qualifies as proper notice, however, is dependent upon whether the creditor is known or unknown. Circuit City Stores, Inc. Newsletter Sign up to receive the Free Law Project newsletter with tips and announcements. On August 13, , the Trustee filed an objection to the Claims, asserting that the Claims should be expunged because they i lacked merit, and ii were filed after the Bar Date. The standard for dismissal under Rule 12 b 1 differs from that used for dismissal under Rule 12 b 6. A Rule 12 b 1 motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. The Mortensen Court wrote: The Trustee acknowledges that actual notice of the Bar Date was not served upon the Whites, but the parties dispute whether the Whites were "known" creditors entitled to actual notice. However, the Trustee's prior statement does not indicate agreement that the Whites were entitled to actual notice since the Bar Date Order provides for notice by publication. Trans World Airlines, Inc. United States Bankruptcy Court, D. Efforts beyond a careful examination of these documents are generally not required. The Debtors also published the Bar Date Notice in the local California newspaper as the site of its principal place of business to provide constructive notice to employees.
The motion to dismiss the Complaint by reason of the Bar Date Order will be denied. At the time of argument on the Trustee's Motion to Dismiss, the Whites were represented by counsel, who argued on their behalf. The Mortensen Court wrote: The Whites also claim that the Debtors transferred the Mortgage Loan but allege that the transfer occurred on March 8, , less than a month before the Debtors filed the chapter 11 bankruptcy petitions. Accordingly, the Debtors had no interest in the Mortgage Loan as of the petition date and the Mortgage Loan was not property of the estate. In re Trans World Airlines, Inc. The Third Circuit determined that Chemetron's publication notice was reasonably designed to reach all interested parties and noted that publication in a Cleveland area newspaper would not have reached the claimants, who had moved away from Cleveland. In Chemetron, the Third Circuit Court of Appeals articulated that a "known" creditor is one whose identity is either known or "reasonably ascertainable" by the debtor. Circuit City, B. In , Deutsche Bank acted as a custodian for the Debtors. The Trustee argues that publication notice was completed in accordance with the terms of the Bar Date Order and was reasonable because publication in a national edition of a newspaper such as The Wall Street Journal was designed to reach potential claimants across the United States. Whether, however, the publication notice given here meets the requisite due process standard as it applies to the Whites is yet to be determined. Accordingly, in addition to considering the facts alleged in the Complaint, I will also consider the Declarations provided by the Trustee. Efforts beyond a careful examination of these documents are generally not required. For creditors who receive the required notice, the bar date is a "drop-dead date" that prevents a creditor from asserting prepetition claims unless he can demonstrate excusable neglect. The rushed manner in which NCMC's brokers or agents conducted the loan closing, along with NCMC's failure to provide the Whites with copies of documents, made it impossible for the Whites to be informed of the true fees and charges associated with the loan, including payment of a yield spread premium and an adjustable interest rate. Prior to the loan closing, NCMC failed to provide the Whites with i timely preliminary disclosures as required by the Truth-in-Lending Act, ii a timely Good Faith Estimate of the anticipated costs associated with the loan as required by RESPA, and iii copies of other documents signed by the Whites before, during, or after the loan closing. A creditor's identity is "reasonably ascertainable" if that creditor can be identified through "reasonably diligent efforts. A Rule 12 b 1 motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Publication in national newspapers is regularly deemed sufficient notice to unknown creditors, especially where supplemented, as here, with notice in papers of general circulation in locations where the debtor is conducting business. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. If a creditor is known, the debtor must provide actual notice of the bankruptcy proceedings, whereas if the creditor is unknown, notice by publication is sufficient. This concern is resolved through notice: However, since the Debtors transferred their interest in the Mortgage Loan prepetition, the Debtors did not, at the time of the bankruptcy filing, and do not now, have any interest in the Note or Mortgage; hence, this Court is without subject matter jurisdiction to order rescission or cancellation of the Mortgage Loan, now held by an unrelated third party. In short, no presumptive truthfulness attaches to the plaintiffs allegation, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
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