4th Circuit: Burwick v. Pilkerton- Admissions trump Interrogatories

Summary:

Ms. Burwick denied certain allegations in her answers to Interrogatories but her response to a set of Admissions, sent pursuant to Rule 36, with similar questions was fourteen (14) days late. As such, those admissions were deemed, pursuant to Rule 36 ((b), “conclusively established,” despite any contradiction in the Interrogatories and summary judgment was granted to Pilkerton as there were no genuine disputes of material fact.

Commentary:

The opinion notes that Burwick did move to withdraw her untimely admissions, but the district court did not seem to address this in granting summary judgment. Rule 36(b) does allow for the withdrawal or amendment of admissions, but not necessarily an after-the-fact extension.

While this is not a solely a bankruptcy issue, Requests for Admissions under Rule 36 are, following Bankruptcy Rule 7036, applicable and very powerful in Adversary Proceeding and Contested Matters. If ignored, these could be used, for example, to “conclusively establish” secured creditor acceptance of a “non-conforming plan” under 11 U.S.C. § 1325(a)(5)(A) or vesting of property in a third party under 11 U.S.C. § 1322(b)(9). While confirmation of a plan is not immediately a “contested matter” under Bankruptcy Rule 9014, an objection by the affected creditor is not necessary, as one from the Trustee or any other party would suffice. Rule 36 would then come into play, as the request for admissions can be served “on any party” (Emphasis added), meaning that filing a Proof of Claim should be sufficient.

For a copy of the opinion, please see:

Burwick v. Pilkerton- Admissions trump Interrogatories

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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