In re Hill
In re Hill
Opinion of the Court
ORDER ON DEBTOR’S AMENDED OBJECTION TO AMENDED PROOF OF CLAIM
This matter came before this Court on Debtor’s Amended Objection to the Amended Proof of Claim of the New Mexico Department of Taxation and Revenue (the “Department”) and the Response thereto by the Department. The Debtor seeks a declaration from this Court that the ben of the Department is void ab initio because the notice of ben identified the Debtor as “Larry E. Hill” instead of his correct name, Larry M. Hib.
The Department asserts that this matter is improperly before this Court because it was not brought as an adversary proceeding and therefore must be dismissed. The Department also asserts that the objection is without merit and the ben is vabd.
DISCUSSION
First, the Court must determine whether to consider this objection or dismiss the objection and require the Debtor to file a complaint under Bankruptcy Rule 7001, with its formabties and notice requirements. The Rule provides in relevant part the following:
An adversary proceeding is governed by the rules of this Part VII. It is a proceeding ... (2) to determine the vabdity, priority, or extent of a ben or other interest in property, ... (9) to obtain a declaratory judgment relating to any .of the foregoing,
The Debtor’s objection, which seeks a declaration that a ben is void ab initio, essentially asks this Court to determine the vabdity of the ben. As such, this matter should have been brought as a adversary proceeding governed by Part VII of the Rules. Therefore, this Court must dismiss the objection. See, Matter of Beard, 112 B.R. 951, 954-56 (Bankr.N.D.Ind. 1990) (stating that when adversary proceeding is required to resolve the dispute, potential defendant has the right to expect that the proper procedures will be foHowed); Matter of Lipply, 56 B.R. 68, 69 (Bankr.N.D.Ind. 1985) (debtor asserted defect in perfection of creditor’s ben, should have been brought as an adversary proceeding).
The Court notes that under NMSA § 7-1-38, the notice of tax ben must among other things “identify the taxpayer whose habihty for taxes is sought to be enforced, ...” A copy of the notice must be sent to the taxpayer at “the last address shown on his registration certificate or other record of the department.” NMSA § 7-1-9. The Debtor argues that the Department did not fulfib the requirements of NMSA § 7-1-38 because it did not properly identify the taxpayer. The Department argues that the information on the notice was sufficient to alert the debtor of the ben and that the debtor had actual notice of the ben because it was mailed to the correct address.
The object of the notice of tax ben is to give constructive notice to mortgagees, pledgees, purchasers, and other potential creditors. See, In the Matter of Hugues J. de la Vergne, II, Ducote, Trustee v. United States, 156 B.R. 773, 777 (Bankr.E.D.La. 1993) (in proceeding to avoid tax ben under
IT IS ORDERED that the Debtor’s Amended Objection to the Amended Proof of Claim of the Department is dismissed.
. At the hearing on this motion, the Debtor testified that all of the information on the face of the notice was correct except for his middle initial. The notice correctly stated his business name as Hill Building Company and its location as 834 Griegos NW, Albuquerque, NM with a CRS ID number 01-164397-008.
Reference
- Full Case Name
- In re Larry HILL, d/b/a Hill Building Company, Debtor
- Cited By
- 1 case
- Status
- Published