1 Any Attorney or Party

Any Street
2 Any Town, CA 90000

3 949-555-5555

4 Any Attorney or Party

8 UNITED STATES BANKRUPTCY COURT

9 ____________ DISTRICT OF ________________

10

11 IN RE: ANY PARTY, ) Case No.

)
12 Debtor, ) Chapter 7
)
13 ANY PARTY, ) Adv. Proc No.
)
14 Plaintiff, ) NOTICE OF MOTION AND MOTION TO DISMISS
) FOR FAILURE TO STATE A CLAIM, OR IN THE
15 vs. ) ALTERNATIVE FOR A MORE DEFINITE
) STATEMENT; MEMORANDUM OF POINTS AND
16 ANY PARTY, ) AUTHORITIES
)
17 Defendant. ) DATE:
) TIME:
18 ) DEPT:
)
19 )
)
20 )

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NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
 1 http://www.scribd.com/LegalDocsPro
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3 TO PLAINTIFF, _______________ AND HIS ATTORNEYS OF RECORD:

4 PLEASE TAKE NOTICE that on ________, at ______M. in Courtroom___ of the
5
above-entitled Court located at ___________________________, Defendant _________ will move
6
this Court for an Order dismissing the Complaint Complaint, or in the alternative for an Order
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8
requiring Plaintiff to provide a more definite statement.

9 This Motion will be made on the grounds that Plaintiff has failed to state a claim upon which

10 relief can be granted under the Federal Rules of Bankruptcy Procedure 7012(b)(6), (FRBP),
11
or in the alternative that Plaintiff should be required to provide a more definite statement under
12
Federal Rules of Bankruptcy Procedure 7012(e).
13
This Motion shall be based upon this Notice, the attached Memorandum of Points and
14

15 Authorities, the complete files and records of this action, and such other evidence as may be

16 presented at the hearing on this Motion.

17

18
Dated_________________________ _______________________________________
19 ANY ATTORNEY OR PARTY
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NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I.
3
STATEMENT OF FACTS
4
Plaintiff has filed an adversary complaint (Complaint) against Defendant. The Complaint
5

6
has one cause of action, for non-dischargeability under 11 U.S.C. 727(a)(4) due to an alleged false

7 oath by the Defendant in that he failed to list _____________ as a creditor.

8 Defendant denies that the failure to list ___ as a creditor was deliberate or done with
9
fraudulent intent and contends that the Complaint fails to state a claim for relief as it fails to state
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facts sufficient to show that: (1) the debtor made a false oath in connection with the case; (2) the oath
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related to a material fact; (3) the oath was made knowingly; and (4) the oath was made fraudulently.
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13 Defendant also contends that the Complaint fails to state a claim for relief as it also fails to

14 state facts sufficient to show that (1) the debtor made the representations, e.g., a false statement or
15
omission in bankruptcy schedules; (2) at the time he knew they were false; and (3) he made them
16
with the intention and purpose of deceiving the creditors.
17
Finally, Defendant also contends that had ________ waited until after the bankruptcy case
18

19 was closed they would not be entitled to have the case re-opened because relief would be unnecessary

20 as case law in the Ninth Circuit is clear that reopening to add an omitted creditor is not necessary in a
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Chapter 7 no asset/no bar date case where the court sends a notice directing creditors not to file a
22
proof of claim. Relief is unnecessary because if the omitted debt is dischargeable, it was already
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discharged.
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25 Defendant requests that the Court dismiss the Complaint for failure to state a claim, or in the

26 alternative require Plaintiff to provide a more definite statement.

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NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
 1 To purchase the entire 11 page document visit:
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dismiss-adversary-complaint-objecting-to-discharge-under-section-727
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NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM