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The debtor here-like those in Mersmann and Whelton-sought to reopen the original case in order to enforce the discharge injunction, which came into force by operation of law upon entry of the discharge. There was no second lawsuit in our case, nor (insofar as we can tell) in Mersmann and Whelton. Wholesale, Inc.), 759 F.2d 1440, 1448-51 (9th Cir.1985); Baldwin v. As best we can follow their reasoning, it is that a creditor who is entitled to heightened notice by statute is also entitled to such heightened notice as a matter of due process. We do not find this reasoning persuasive and thus have no occasion to call for rehearing en banc to consider overruling In re Gregory. For reasons explained above, we view matters quite differently. pdf (“For more than a decade, two-thirds of all Chapter 13 plans have failed before the debtor completes payments, and sometimes before unsecured creditors have received anything at all.”).3.
Mersmann and Whelton pay scant attention to 60(b) or the caselaw thereunder, which strictly cabins the circumstances under which a judgment can be reopened after it becomes final. Whelton, 432 F.3d at 155; Mersmann, 505 F.3d at 1049-50. First, what we have here is not a question of res judicata-giving the judgment in the bankruptcy case preclusive effect in another case. A discharge judgment could also have res judicata effect, if the creditor were to try to enforce the debt by bringing a post-discharge lawsuit, but the discharge injunction prevents him from even commencing the second suit where the res judicata issue could be litigated. The three circuits that have held that the creditor is denied due process in circumstances such as these appear to have a different understanding of what due process requires. 461, 474-75 (1997)); National Bankruptcy Review Commission, Bankruptcy: The Next Twenty Years 233 (1997), available at
Plus, our well-equipped fitness center and indoor pool will help you stay refreshed and energized.Had Funds so objected, the bankruptcy court would have been required to disapprove the plan and Espinosa would have been put to the hard choice of commencing an adversary or abandoning Chapter 13. It makes a mockery of the English language and common sense to say that Funds wasn't given notice, or was somehow ambushed or taken advantage of. But here (and in the similar cases from other courts) there was no adversary proceeding; the creditor's rights were cut off by the Chapter 13 plan, precisely as specified in the notice the creditor did receive. It is true, of course, that a plan can have no preclusive effect on matters that have been specifically reserved for resolution by way of an ongoing adversary proceeding.But Funds didn't object to the plan and didn't appeal the order confirming the plan, as it well could have. Instead, it accepted the payments made by the debtor during the plan's life and then acted as if the whole thing never happened. The only thing the creditor was not told is that it could insist on an adversary proceeding and a judicial determination of undue hardship. We reject the idea that a creditor who is in the business of administering student loans has a constitutional right to ignore a properly served notice that clearly specifies that its debt will be discharged on successful completion of the plan. We had no occasion in Enewally to consider the situation where there is no adversary and the case is resolved entirely by confirmation of the plan.But that's less a matter of notice and more of a tutorial as to what rights the creditor has under the Bankruptcy Code-a long-form Miranda warning for bankers. Seeing no reason to change course, we continue to follow Pardee. Funds also argues that the discharge order is void because Funds was denied due process, as it was never served with a complaint and summons as required by Fed. In short, we find the due process argument even less persuasive than the statutory argument, despite the eagerness of some of our sister circuits and other courts to adopt it. Anything Enewally has to say as to matters not presented in that case is, in any event, dicta and thus not binding on us.If that were the standard for adequate notice, every notification under the Bankruptcy Code would have to be accompanied by Collier's Treatise, lest the creditor overlook some rights it might have under the Code. What appears to be going on is that courts are re-casting what may be a simple statutory violation as a denial of due process so that they can set aside judgments with which they're unhappy. Reading Enewally broadly to speak to that hypothetical situation would also bring it into conflict with Pardee, which addresses precisely this issue.4. A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524's discharge injunction).