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Putnam v. Sezgin12/2/2004
notified potential creditors of the bankruptcy. While plaintiffs and their counsel claim that they were unaware of the bankruptcy when they filed the complaint on January 24, 2002, this issue is not dispositive. Smith, supra. They were aware of the bankruptcy no later than February 19, 2002, when they filed a complaint in the bankruptcy court. At that point, they had all of the information necessary to properly chart their course of litigation in light of the bankruptcy. On the record before this Court, it cannot be concluded that Dr. Sezgin unreasonably withheld notice of the bankruptcy or stay. Thus, the first equitable exception recognized in Easley, supra at 911, is not present.
Further, the record also does not establish that Dr. Sezgin is attempting to use the stay unfairly as a shield to avoid an unfavorable result. Plaintiffs argue that he is doing so because he never raised the issue of the void nature of the complaint before moving to quash the summons and obtain summary disposition in the trial court. Plaintiffs fail to acknowledge, however, that Dr. Sezgin was never served with the summons and complaint until January 2003. In his first responsive pleading, Dr. Sezgin raised the issue of the automatic stay and the voiding of the complaint. MCR 2.107(A) does not require a defendant to file an answer or take any other action until being served with the summons and complaint. The record does not indicate that Dr. Sezgin lulled plaintiffs into believing that he would not rely on the automatic stay. Easley, supra at 911-912. Plaintiffs' additional argument that Dr. Sezgin should have raised the issue in the bankruptcy court when litigating plaintiffs' bankruptcy complaint is abandoned. Plaintiffs cite no authority to support this proposition. Rather, they leave it to this Court to discover and rationalize whether that position has any basis in bankruptcy law. An appellant may not merely announce a position and leave it to this Court to discover and rationalize the basis of the position, nor may he give the position cursory treatment with no citation to supporting authority. Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003). Plaintiffs have not provided any authority or logical reason to support their position that this Court should conclude that the filing of the complaint during the pendency of the automatic stay was not void.
Because the filed complaint was void and no complaint could be filed during the pendency of the automatic stay, plaintiffs had thirty days to file their action after the stay was lifted. 11 USC 108(c) provides:
Except as provided in section 524 of this title, if applicable non-bankruptcy law, an order entered in a non-bankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of --
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under section 362 . . . of this title, as the case may be, with respect to such claim.
In Ashby, supra at 541, the plaintiffs timely filed their notice of intent to file a malpractice claim. The defendants' insurance carrier denied the claim within three months of the notice. Thereafter, the plaintiffs could have filed their claim, and the statute of limitations was not due to ru
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