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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 ________________

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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
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above-entitled Court located at ___________________________, Defendant _________ will move
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this Court for an Order dismissing the Complaint Complaint, or in the alternative for an Order
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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),
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or in the alternative that Plaintiff should be required to provide a more definite statement under
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Federal Rules of Bankruptcy Procedure 7012(e).
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This Motion shall be based upon this Notice, the attached Memorandum of Points and
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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.


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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.
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STATEMENT OF FACTS
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Plaintiff has filed an adversary complaint (Complaint) against Defendant. The Complaint
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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
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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
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omission in bankruptcy schedules; (2) at the time he knew they were false; and (3) he made them
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with the intention and purpose of deceiving the creditors.
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Finally, Defendant also contends that had ________ waited until after the bankruptcy case
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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
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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
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NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM