In re Dewalt
| Decision Date | 15 December 1989 |
| Docket Number | BAP No. SC 88-1795-AsPR,Adv. No. C88-0123-H7.,Bankruptcy No. 87-5435-H7 |
| Citation | 107 BR 719 |
| Parties | In re Judy L. DEWALT, et al., Debtors. MANUFACTURERS HANOVER, fka Finance One of California, Inc., Appellants, v. Judy L. DEWALT, et al., Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
Jerry Michael Suppa, San Diego, Cal., for appellants.
George E. Alspaugh, El Cajon, Cal., for appellees.
Before ASHLAND, PERRIS and RUSSELL, Bankruptcy Judges.
Finance One appeals the bankruptcy court's judgment dismissing its dischargeability complaint as late filed. We affirm.
Dewalt, the debtor, filed a petition for relief under Chapter 7 on July 28, 1987. Following the meeting of creditors, a claims bar date of November 2, 1987 was set for filing of complaints seeking a determination of nondischargeability under § 523. Dewalt did not list Finance One as a creditor as required by § 521(1). Instead Finance One was listed on the debtor's notice of intent under § 521(2) in the amount of $4,065.81. Consequently, Finance One was not given notice of Dewalt's bankruptcy by the court.
Subsequent to the bankruptcy, Finance One filed a state court action against Dewalt, and on October 21, 1987 requested a default judgment. Five days later on October 26, 1987, Dewalt's attorney contacted Finance One's attorney and informed him that Dewalt had filed bankruptcy on July 28, 1987, and requested that the state court matter be dismissed. Between October 26, 1987 and November 2, 1987, the bar date for filing dischargeability complaints, Finance One did not file a complaint or seek an extension of time in which to do so.
Finance One filed a complaint to determine dischargeability under § 523(a)(2)(A) on March 21, 1988, almost five months after receiving actual notice of Dewalt's bankruptcy. Dewalt brought a motion to dismiss the complaint for lack of jurisdiction because it was untimely filed. The bankruptcy court granted Dewalt's motion and Finance One timely appealed.
Whether Finance One had actual knowledge of Dewalt's bankruptcy in time to permit the filing of a complaint to determine dischargeability pursuant to § 523(a)(3)(B).
Whether Finance One received sufficient notice to file a complaint to determine dischargeability is a question of law requiring interpretation of a statute, and is therefore reviewed independently. In re Price, 871 F.2d 97, 98 (9th Cir.1989).
Section 523(a)(3)(B) provides:
11 U.S.C. § 523(a)(3)(B).
Finance One's complaint for dischargeability alleged a cause of action under § 523(a)(2)(A). Section 523(a)(3)(B) requires that a debt of the kind specified in § 523(a)(2), must be listed or scheduled in time to permit the filing of a complaint to determine dischargeability of the debt. In this case, it is undisputed that the bar date was November 2, 1987 and that Finance One was not properly scheduled as a creditor under § 521(1) until November 25, 1987.
However, § 523(a)(3)(B) contains an exception for creditors that had notice or actual knowledge of the case in time to timely file a complaint for dischargeability. 11 U.S.C. § 523(a)(3)(B); In re Price, 79 B.R. 888, 890 (9th Cir. BAP 1987), aff'd 871 F.2d 97 (9th Cir.1989). It is uncontroverted that Dewalt's attorney contacted the attorneys for Finance One on October 26, 1987, seven calendar days and five court days before the claims bar date. At this time, Dewalt's attorney informed Finance One that Mrs. Dewalt had filed bankruptcy on July 28, 1987.
In Price this court held that for purposes of § 523(a)(3)(B), notice to a creditor's attorney of the bankruptcy proceeding is sufficient to constitute notice to the creditor if the creditor's attorney received the notice while representing his client in enforcing the claim against the debtor. Price, 79 B.R. at 889-90. The attorneys for Finance One were in state court pursuing the very claim for which the dischargeability complaint was filed when they received notice from Dewalt's attorney. As a result, the telephone call to the Finance One attorneys was sufficient to give notice of Dewalt's bankruptcy. An unscheduled creditor with actual notice of the bankruptcy has the burden to inquire as to the bar date for filing a nondischargeability complaint. In re Alton, 64 B.R. 221, 224 (Bankr.M.D.Fla. 1986), aff'd 837 F.2d 457 (11th Cir.1988); see In re Gregory, 705 F.2d 1118, 1123 (9th Cir.1983); Price, 79 B.R. at 890.
Since Finance One received notice of Dewalt's bankruptcy prior to the bankruptcy case and did not act to protect its claim, the only question remaining is whether Finance One had sufficient time to act, in order to protect its interests. Finance One argues that seven days was too short a time in which to review the facts surrounding the obligation and alleged wrongdoing of the debtor. Finance One contends that the shortened time did not allow time for consultation with its attorneys, obtaining of documentary evidence, investigation of the merits of the case, filing of the complaint itself, and conducting settlement discussions and other "pre-complaint inter-party communications."
The bankruptcy court, contrary to Finance One's contention did not hold that notice at any time before the bar date is sufficient to exempt a creditor from the protection afforded under § 523(a)(3)(B). The bankruptcy court specifically found that seven days was sufficient time for Finance One to protect its claim by either filing a complaint or by seeking an extension of time. The bankruptcy court inquired as to why Finance One did not either check the bankruptcy file to establish the claims bar date or seek an ex parte application to extend time for filing a complaint. No explanation, other than the lack of formal notice, was given for Finance One's failure to act to protect its claim.
In order to determine whether Finance One could have timely filed a complaint to determine dischargeability, it is necessary to analyze the interrelationship between § 523(a)(3)(B), (c) and Bankruptcy Rule 4007. Finance One's complaint to determine dischargeability was based on § 523(a)(2). Section 523(c) provides that § 523(a)(2) debts will be discharged unless, on request of the creditor, the court determines the debt is to be excepted from discharge. 11 U.S.C. § 523(c). It is the creditors duty to request a determination of nondischargeability. Id.
Bankruptcy Rule 4007 which governs the timeliness of § 523(c) complaints provides:
(c) . . . A complaint to determine the dischargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a) . . . On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired.
The language in § 523(a)(3)(B) excepting a § 523(a)(2) debt from discharge unless the debt is scheduled or the creditor has actual notice of the case in time to timely request a determination of dischargeability must be read in conjunction with § 523(c) and Bankruptcy Rule 4007(c). A timely request for a determination of dischargeability is made when the creditor provides notice and requests a hearing in the time provided by Rule 4007(c). Rule 4007(c) provides that a § 523(c) complaint is timely if brought within 60 days of the first meeting of creditors. Rule 4007(c) also provides that on motion of a creditor and for cause the court may extend the time in which a § 523(c) complaint may be filed. A motion to extend time in which to file a § 523(c) complaint must be made before the original 60 day period for filing a complaint has expired.
Finance One had seven calendar and five court days in which to bring a motion seeking an extension of the deadline for filing a dischargeability complaint. While it is questionable whether a complaint could have been filed in the time remaining after Finance One received notice of Dewalt's bankruptcy, there was ample opportunity to seek an extension of time to file a § 523(c) complaint under Rule 4007(c). A motion for extension of time in which to file a complaint is a simple matter and it would have been an abuse of discretion not to grant such a motion in this case. See In re Magouirk, 693 F.2d 948, 951 (9th Cir. 1982). As a result we hold that Finance One's complaint was properly dismissed as untimely.
Our holding is supported by In re Price, 871 F.2d 97 (9th Cir.1989), In re Alton, 837 F.2d 457 (11th Cir.1988), and Neeley v. Murchison, 815 F.2d 345 (5th Cir.1987). In Price the Ninth Circuit in affirming this court's opinion stated "Counsel for the appellant in the present appeal was given actual notice of the bankruptcy proceedings in time to file a complaint, or at least to file a timely motion for an extension of time." Price, at 99 (emphasis added). Likewise in Alton the Eleventh Circuit stated, "if the appellant, once warned of the bankruptcy proceeding, had made a minimal effort to determine the date of the filing of the petition, he would have realized the outside dates for the filing of his complaint contesting the dischargeability of this claim or for a motion to extend such time." Alton, 837 F.2d at 461 (emphasis added). Finally, in Neeley the Fifth Circuit in...
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