reopen zaragosa1

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Pier Paolo Caputo, Esq. SBN 1766981010 Wilshire Blvd. #113Los Angeles, CA 90017213.596.7977 TEL

Attorney for DebtorMANUEL ZARAGOSA

UNITED STATES BANKRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA

In re:

MANUEL ZARAGOSA,

Debtor.

Case No. 2:10-bk-44207-VK

Chapter 13

DEBTORS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE, INADVERTANCE OR NEGLECT AND TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING DOCUMENTS AND FOR A CONFIRMATION HEARING

[No Hearing Required Pursuant to Local Bankruptcy Rule 9020-1 Unless Court So Orders]

Date (TO BE SET)TimeCrtm

TO THE HONORABLE VICTORIA S. KAUFMAN, UNITED STATES BANKRUPTCY

JUDGE; NANCY K. CURRY, CHAPTER 13 TRUSTEE; THE OFFICE OF THE U.S. TRUSTEE;

AND ALL PARTIES OF INTEREST:

Application to Reopen a Closed Case - 1

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Debtor/Applicant, MANUEL ZARAGOSA, hereby applies for an order shortening time on the

MOTION TO VACATE DISMISSAL BASED ON MISTAKE, INADVERTANCE OR NEGLECT

AND TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING

DOCUMENTS AND FOR A CONFIRMATION HEARING.

Debtor is filing this motion as an emergency as so they can get the Confirmation hearing back

on calendar, and be able to file case opening schedules and chapter 13 plan so that Debtor does not

lose his home.

Debtor and Debtor’s attorney attempted to contact Nancy K Curry to request the

postponement of his 341 hearing since he knew in advance that he would be unable to appear,

however they were unsuccessful in their attempt and misunderstood counsels’ instructions that

appearance was mandatory and was dismissed for non appearance at the 341 hearing although

counsel was present.

Respectfully submitted,

Date: ____________________

Pier Paulo CaputoAttorney for Movant


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In re:

MANUEL ZARAGOSA,

Debtor.


Chapter 13

DEBTORS’ EX PARTE MOTION FOR ORDER SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE INADVERTANCE OR NEGLECT TO REINSTATE CASE IN ORDER TO FILE A CH 13 PLAN, CASE OPENING DOCUMENTS AND FOR A CONFIRMATION HEARING, DECLARATION OF DEBTOR MANUEL ZARAGOSA AND DOLLY YOOZBASHIZADEH IN SUPPORT THEREOF

[No Hearing Required Pursuant to Local Bankruptcy Rule 9020-1 Unless Court So Orders]

Date (TO BE SET)TimeCrtm

TO THE HONORABLE VICTORIA S. KAUFMAN, UNITED STATES BANKRUPTCY

JUDGE; NANCY K. CURRY, CHAPTER 13 TRUSTEE; THE OFFICE OF THE U.S. TRUSTEE;

AND ALL PARTIES OF INTEREST:


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COMES NOW THE DEBTOR, by and through attorney of record Pier Paolo Caputo,

Attorney at Law, hereby moves the Court for an EX PARTE MOTION SFOR ORDER

SHORTENING TIME FOR MOTION TO VACATE DISMISSAL BASED ON MISTAKE,

INADVERTANCE OR NEGLECT AND TO REINSTATE CASE IN ORDER TO FILE CASE

OPENING DOCUMENTS, A CH 13 PLAN AND FOR A CONFIRMATION HEARING, based

upon the following facts and circumstances and shown by the Declarations of Debtor, MANUEL

Zaragosa and Dolly Yoozbashizadeh, and exhibits attached in support thereof.

1. This Court has jurisdiction over this matter pursuant to 11 U.S.C. Sec. 109 and 349 and

rules 8002, 9006, 9013, 9022, and 9024 of the Federal Rules of Bankruptcy Procedures.


Date: ____________________

Pier Paulo CaputoAttorney for Movant


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STATEMENT OF FACTS

1. Debtor filed a Chapter 13 case herein on August 16, 2010.

2. On August 28, 2010, Debtor filed a Motion to Extend Time to File Case Opening

Documents so that he may obtain legal assistance with the preparation of documents and

possibly hire an attorney to assist with the bankruptcy; although an order was attached to

the motion, the judge did not rule on the motion. See Attached Exhibit “A”.

3. Debtor retained the services of Attorney Pier Paolo Caputo to assist with the completion

of his bankruptcy and on September 23, 2010 Mr. Caputo filed the Substitution of

Attorney on behalf of Mr. Manuel Zaragosa. See Attached Exhibit “B”.

4. On September 22, 2010, Paralegal Dolly Yoozbashizadeh made several phone calls and

sent an e-mail to Trustee Nancy K. Curry requesting instructions on how to request the

postponement of the Debtors 341 hearing. See Attached Exhibit “C”.

5. On September 27, 2010, Paralegal Dolly Yoozbashizadeh sent a fax to Trustee Nancy K.

Curry’s office stating the numerous attempts to contact Trustee Nancy K. Curry in regards

to the rescheduling of the 341 hearing so that Mr. Caputo would have sufficient time to

prepare Debtor’s case opening schedules and chapter 13 Plan prior to the hearing. See

Attached Exhibit “D”.

6. On September 29, 2010, Paralegal Dolly Yoozbashizadeh informed Debtor Manuel

Zaragosa that she was unable to reach Trustee Nancy K. Curry and that his appearance at

the 341 hearing was mandatory. Debtor informed Paralegal Dolly Yoozbashizadeh that

despite his best attempts to appear he would be unable to do so because his work schedule

would not allow him to miss work to appear.


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7. Debtor’s attorneys’ paralegal, Dolly Yoozbashizadeh, by mistake believed that since she

made several attempts to contact Trustee Nancy K. Curry, and would appear with the

attorney on behalf of Debtor at the 341 hearing on September 30, 2010, to show Ms.

Curry the numerous attempts to reach her and request that the 341 meeting be postponed,

that Trustee Nancy K. Curry would grant the postponement of the hearing and would

forgive Debtor for not being able to appear.

8. Debtor would like to reinstate the Confirmation hearing for January 27, 2011and to be

allowed to file case opening documents and chapter 13 Plan.

9. If Debtor is unable to have the case reinstated, Debtor is afraid that he will lose his home.


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MEMORANDUM OF POINTS AND AUTHORITIES

I.UPON SHOWING GOOD CAUSE THE COURT MAY ON ITS OWN DISCREDTION

ORDER THE PERIOD REDUCED

Rule 9006 of the Bankruptcy Rule provides, in its most pertinent part as follows

“When an act is required to be done at or within a specified timeby these rules or by notice given thereunder or by order of the court,the court for cause shown may on its own discretion with or without motion or notice order the period reduced”

Local Bankruptcy Rule 9075-1 provides that:

“For cause shown, a party may request an emergency motion to be heard on notice shorter than would otherwise be required by these Local Bankruptcy Rules”

As demonstrated in this Application, Debtor’s attorney’s Paralegal made a mistake in believing that Trustee Nancy K. Curry would allow the 341 hearing to be postponed so that case opening documents could be filed and the Debtor would be able to appear at the postponed hearing. Debtor is afraid that without completing his bankruptcy and receiving a discharge, that he will lose his home.

II.DUE TO MISTAKE, INADVERTANCE, SURPRISE OR NEGLECT UPON DEBTOR,

SETTING ASIDE OF DISMISSAL OF AND REINSTATING THE CHAPTER 13 SHOULD BE GRANTED

Bankruptcy Rule 9024 Provides that Federal Rules of Civil Procedure 60 supplies in cases under the Code.

F.R.C.P. 60(b) provides in pertinent part

“On motion and upon such terms as are just, the Court may relieve aparty or a party legal representative from a final judgement, order or proceeding for the following reasons: 1) mistake, inadvertence, surpriseor excusable neglect, 2)newly discovered evidence which by due diligence could not have been discovered in time to move for a new trialunder Rule 59(b).”


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In the case herein, Debtor’s attorneys’

paralegal, Dolly Yoozbashizadeh, by mistake

believed that Trustee Nancy K. Curry would

allow the 341 hearing to be rescheduled upon

providing evidence of the several attempted

contacts with trustees office to request such

postponement and would excuse Debtor from his

non appearance at the hearing.

Based on mistake, inadvertence or excusable

neglect of Debtor’s attorney’s paralegal Dolly

Yoozbashizadehs’ assumption, the Debtors case

was dismissed and now Debtor could lose his

home if this motion is not heard on shortened

notice so that Debtor could have the case

reinstated and allowed to file case opening

documents and chapter 13 Plan to be filed as well

as Confirmation hearing heard on January 27,

2011.

III.

CONCLUSION

Based upon the foregoing, Movant requests

that the Court enter an Order Granting Movant’s


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EX PARTE MOTION SFOR ORDER

SHORTENING TIME FOR MOTION TO

VACATE DISMISSAL BASED ON MISTAKE,

INADVERTANCE OR NEGLECT AND TO

REINSTATE CASE IN ORDER TO FILE CASE

OPENING DOCUMENTS, A CH 13 PLAN

AND FOR A CONFIRMATION HEARING.

Debtor also requests that the automatic stay be

valid from the day of filing Nune Pro Tune on

August 16, 2010.


Date:

____________________

Pier Paulo Caputo

Attorney for Movant

PROOF OF SERVICE

STATE OF CALIFORNIA COUNTY OF LOS

ANGELES

I am employed in the County of Los Angeles,

State of California. I am over the age of 18 and

not a party to the within action, my business

address is 1010 Wilshire Blvd. #113 Los Angeles,

CA 90017.


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On _________________ I served the

foregoing document described as EX PARTE

MOTION SFOR ORDER SHORTENING TIME

FOR MOTION TO VACATE DISMISSAL

BASED ON MISTAKE, INADVERTANCE OR

NEGLECT AND TO REINSTATE CASE IN

ORDER TO FILE CASE OPENING

DOCUMENTS, A CH 13 PLAN AND FOR A

CONFIRMATION HEARING on all interested

parties in this action by placing a true and correct

copy in a sealed envelope with postage thereon

fully prepaid in the United States mail at the City

of Los Angeles, California as follows:

SEE ATTACHED LIST

I declare that I am employed in the office of a

member of the bar of this court at whose direction

the service was made.

_________________________________

Dolly Yoozbashizadeh, Paralegal


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In re:

MANUEL ZARAGOSA,

Debtor.


Chapter 13

DECLARATION OF DEBTOR MANUEL ZARAGOSA

DECLARATION OF DEBTOR MANUEL ZARAGOSA

I, Manuel Zaragosa, declare as follows:

I am the debtor in the above listed matter, and have

personal knowledge of the facts set forth

in this declaration and, if called as a witness, would be

competent to testify to those acts.

Application to Reorder Closed Case - Declaration

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1. I am the Debtor in the above listed bankruptcy.

2. On September 21, 2010 I signed the substitution of attorney appointing Mr. Pier Paolo Caputo

as my attorney for the above listed matter.

3. I made several calls to trustee Nancy K. Curry’s office in an attempt to request the

postponement of my 341 hearing prior to retaining my attorney because I was not able to

take the day off from work and appear.

4. I requested that my attorney attempt to reach Trustee Nancy K. Curry’s office to request the

postponement of my 341 hearing because I was unable to take time off from work to appear.

5. On September 29, 2010, I was contacted by Dolly Yoozbashizade, a paralegal employed by

Mr. Caputo and instructed that my appearance was mandatory at the 341 hearing and I

responded to Mrs. Yoozbashizadeh by letting her know that I would not be able to attend.

6. On September 29, 2010, Paralegal Dolly Yoozbashizadeh informed that she would appear on

my behalf with the attorney at the scheduled 341 hearing and request the postponement on my

behalf and that she believed Trustee Nancy K. Curry would grant us the postponed hearing

upon seeing proof of the many attempts to contact her and her office to make the request and

being unsuccessful at reaching the Trustee or any of her employees.

7. On September 30, 2010 I was contacted by Paralegal Dolly Yoozbashizadeh who informed

me that she had appeared with the attorney at the 341 hearing and that Trustee Nancy K. Curry

would nor postpone the hearing and additionally that my case would be dismissed.

8. On October 5, 2010 I received notice that my case had been ordered for dismissal.

9. This declaration is in support of the ex parte motion for order shortening time for motion to

vacate dismissal based on mistake, inadvertence or neglect and to reinstate case for filing of

case opening documents, chapter 13 plan and for a confirmation hearing.


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10. I respectfully request that the order of dismissal is vacated so that I may keep my home which

will be eminent if the order of dismissal is not vacated.

11. I have every reason to believe that my plan will be confirmed and that I will be able to carry

out the plan to the end of its term.

I declare under the penalty of perjury, under the laws of the state of California, that the foregoing

is true and correct.

Dated:

______________________Manuel Zaragosa, Debtor


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In re:

MANUEL ZARAGOSA,

Debtor.


Chapter 13

DECLARATION OF DOLLY YOOZBASHIZADEH

DECLARATION OF DOLLY YOOZBASHIZADEH

I, Dolly Yoozbashizadeh, declare as follows:

I am over the age of 18, and have personal knowledge of

the facts set forth in this declaration

and if called as a witness, would be competent to testify tot

hose facts.


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1. I am employed as a paralegal at the Law Offices of Paul Caputo, the attorney who represents

Mr. Manuel Zaragosa in the bankruptcy matter stated above.

2. I made several attempts on behalf of Mr. Manuel Zaragosa to reach Trustee Nancy K. Curry

to request the postponement of the scheduled 341 hearing so that Mr. Zaragosa would be able

to take time off from work and appear and so that Attorney Pier Paolo Caputo would have

time to prepare the Debtors case opening documents and chapter 13 Plan.

3. On September 29, 2010, I was contacted by Mr. Zaragosa, and instructed him that his

appearance was mandatory at the 341 hearing and he informed me that he would not be able to

attend.

4. On September 29, 2010, I informed Mr. Zaragosa that she would personally appear on

his behalf with the attorney at the scheduled 341 hearing and request the postponement on

and I stated that I believed Trustee Nancy K. Curry would grant us the postponed hearing

upon seeing proof of the many attempts to contact her and her office to make the request and

being unsuccessful at reaching the Trustee or any of her employees.

5. On September 30, 2010 I contacted Mr. Zaragosa to inform him that I had appeared at the

hearing with the attorney and that Trustee Nancy K. Curry would not postpone the hearing and

additionally that I was informed that Mr. Zaragosa’s case would be dismissed for non

appearance.

6. On October 5, 2010 I received notice that Mr. Zaragosa’s case had been ordered for dismissal.

7. There was a mistake on my part in assuming that Trustee Nancy K. Curry would postpone the

341 hearing upon seeing the numerous attempts I made in trying to reach her or her office.


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8. I made this assumption because I have other cases where I needed to contact Trustee Nancy K.

Curry and was unable to, and upon appearing at the 341 hearing and speaking with the Trustee

I was granted postponed hearings so that the client would be able to appear.

9. This declaration is in support of the ex parte motion for order shortening time for motion to

vacate dismissal based on mistake, inadvertence or neglect and to reinstate case for filing of

case opening documents, chapter 13 plan and for a confirmation hearing as I had appeared in

at other 341 hearings with Ms. Nancy K. Curry and had presented her with similar attempts to

notify her and her office and was granted postponed hearings.

I declare under the penalty of perjury, under the laws of the state of California, that the foregoing

is true and correct.

Dated:

______________________Dolly Yoozbashizadeh, Paralegal


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