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Bankruptcy — clerical errors

By: WISCONSIN LAW JOURNAL STAFF//October 24, 2011//

Bankruptcy — clerical errors

By: WISCONSIN LAW JOURNAL STAFF//October 24, 2011//

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United States Bankruptcy Court

Civil

Bankruptcy — clerical errors

Where the denial of a debtor’s discharge was incorrectly granted under sec. 727(a)(8), rather than subsec. (a)(2), the error can be corrected.

“Although most clerical errors are inconsequential, as is evidently clear in this case, not all are. For purposes of relief from judgment, ‘[t]he defining element is not that the error was trivial, but that the parties knew that it was by pure inadvertence, rather than a mistaken exercise of judgment, that an error had crept into the judgment.’ Lowe v. McGraw-Hill Cos., 361 F.3d 335, 341 (7th Cir. 2004). Clearly, ‘[a]dvantage to a party in allowing a mistake to stand as part of a judgment or order is exactly what Rule 60(a) seeks to prevent, and efforts to avoid correction by calling the mistake a matter of substance or a substantial error, rather than one of form, will not succeed where the record itself reflects an error of form in presenting what the court decided or intended to do.’ Jean F. Rydstrom, Construction of Rule 60(a) of Federal Rules of Civil Procedure, 13 A.L.R. Fed. 794 §1(c) (1972, Suppl. 2010).

“The record in this case is clear. This Court intended to deny the debtor a discharge under section 727(a)(2) on account of her own wrongdoing, not because of a mistake in timing the filing of the petition. The fact that the order cited section 727(a)(8) instead of section 727(a)(2) is a clerical error correctable by Fed. R. Civ. P. 60(a). She cannot be allowed to exploit a keystroke mistake to gain rights the Court clearly intended that she not have. The United States Trustee’s motion for correction is thereby granted.”

05-44803 In re McClellan

E.D.Wis., McGarity, Bankr. J.

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