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