811 F.2d 484 (9th Cir. 1987), 85-2701, In re Hill

Docket Nº:85-2701.
Citation:811 F.2d 484
Party Name:In re Moses HILL, Debtor. Phelix JONES, et al., Creditors, Appellants, v. Moses HILL, Debtor, Appellee.
Case Date:February 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 484

811 F.2d 484 (9th Cir. 1987)

In re Moses HILL, Debtor.

Phelix JONES, et al., Creditors, Appellants,

v.

Moses HILL, Debtor, Appellee.

No. 85-2701.

United States Court of Appeals, Ninth Circuit

February 24, 1987

Argued and Submitted Dec. 8, 1986.

As Amended on Denial of Rehearing April 22, 1987.

Page 485

William F. Taylor, Berkeley, Cal., and Eric P. Schnurmacher, Oakland, Cal., for appellants.

Thomas Roland, Albany, Cal., for appellee.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, POOLE and WIGGINS, Circuit Judges.

POOLE, Circuit Judge:

The judgment creditor Jones Family (the Family) appeals the district court's judgment affirming the bankruptcy court's order denying the Family's motion for leave to file a late complaint against the debtor Moses Hill. The bankruptcy court found excusable neglect but held that it could not enlarge the filing period under the bankruptcy procedure rules. We affirm.

Moses Hill (Hill) brutally assaulted members of the Family, shooting Mr. Jones in the head. The Family sued Hill in state court for assault and battery, and on November 7, 1979 was awarded $79,487 in damages, accumulated interest on which has brought the total to $100,425.

On August 15, 1983, Hill voluntarily filed for bankruptcy. Counsel for the Family attended the first creditors' meeting held on October 6, 1983. The Family sought a determination that the judgment was a nondischargeable debt under 11 U.S.C. Sec. 523(a)(6) (1982). Under Bankruptcy Rule 4007(c), the Family had 60 days from the date of the first creditors' meeting on October 6 within which to file a complaint, which meant that the last day was December 6, 1983. The bankruptcy court erroneously determined the deadline to be January 5, 1984. Counsel for the Family then mistakenly entered the date on his calendar as February 5, 1984. No timely complaint was filed.

On November 21, 1984, counsel moved in the bankruptcy court for leave to file a late complaint. The bankruptcy court found excusable neglect on the part of counsel but that it had no discretion to permit late filing, and therefore denied the motion. On September 18, 1985, the district court affirmed the bankruptcy court's ruling. On October 17, 1985, the present appeal was filed.

The sole issue before us is whether the bankruptcy rules relied on by the bankruptcy court and the district court (rules 4007(c) and 9006(b)) are invalid because they contravene 11 U.S.C. Sec. 523 and...

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