In re Goode, Bankruptcy No. 7-79-00952.

• Decision Date: 12 March 1980
• Docket Number: Bankruptcy No. 7-79-00952.
• Citation: 3 BR 207,6 BCD 70
• Parties: In re Geneva Crockett GOODE, Debtor.
• Court: U.S. Bankruptcy Court — Western District of Virginia

3 B.R. 207 (1980)

In re Geneva Crockett GOODE, Debtor.

Bankruptcy No. 7-79-00952.

United States Bankruptcy Court, W.D. Virginia, Roanoke Division.

March 12, 1980.

Robert P. Doherty, Jr., Salem, Va., for debtor.

Donald W. Huffman, Roanoke, Va., for trustee.

MEMORANDUM OPINION AND ORDER

H. CLYDE PEARSON, Bankruptcy Judge.

The issue here is whether or not excusable neglect exists which will permit Colonial-American National Bank (Bank) to file a Complaint seeking a determination of the dischargeability of a debt owing to the Bank by the Debtor.

The facts pertinent to this decision generally are as follows:

The Debtor, Geneva Crockett Goode, filed her voluntary petition on November 27, 1979, seeking a discharge of her debts under Chapter 7 of the Bankruptcy Reform Act of 1978. Thereupon the Court entered an Order fixing the date of January 10, 1980, at 10:00 a.m. for a meeting of creditors pursuant to 11 U.S.C. § 341. The Order also fixed the date of February 11, 1980 as the last day for filing Complaints objecting to the Debtor's discharge or for the determination of the dischargeability of debts and fixed the date of February 13, 1980 for discharge hearing pursuant to 11 U.S.C. § 524(d). This Order and Notice went forth to all the Debtor's creditors, including the Bank, which received a copy of the notice and had a representative present at the 341 Meeting.

The administration of the Debtor's case progressed through the discharge hearing which was duly held on February 13, 1980 as scheduled, upon which date the order granting the discharge was duly issued and mailed to all creditors by the Clerk of this Court on February 14, 1980.

On February 25, 1980, eleven days later, Counsel for the Bank filed a petition seeking leave of Court to file a complaint to have the dischargeability of its debt determined. The Debtor filed written objections thereto. The petition was set for hearing on the issue of excusable neglect.

At said hearing, it appeared that the Bank had received the Order and Notice of the Creditors' Meeting, containing the time table fixed for filing complaints and the discharge hearing; that the facts surrounding the issue as to dischargeability which would be presented upon trial, were known to the Bank prior to the filing of the petition herein by the Debtor on November 27, 1979, and therefore, were not facts which were only recently discovered and unknown to the Bank prior to the passing of the deadline for filing complaints on February 11, 1980. It further appeared that this matter was not referred to Counsel until after February 11, 1980; and that subsequently, Counsel filed the petition herein seeking leave to file a belated complaint upon the grounds of excusable neglect.

Counsel for the Bank stated that although the Bank had full knowledge of this Debtor proceeding and the deadlines fixed in the Order, that nevertheless it was confused as to procedure which should be employed to effect its remedy.

The Court must observe that while the Bankruptcy Reform Act of 1978 became effective October 1, 1979, and is new, that further, the fixing of a deadline for filing complaints to determine the dischargeability of debts has been a part of and is construed as routine Bankruptcy procedure since the Congress amended § 17 and § 14 of the Bankruptcy Act of 1938, which became effective December 18, 1970. Indeed, it would seem that a creditor's uncertainty as to its remedy would require something more than routine handling and therefore, Counsel's advise and guidance should have been sought long before the deadline clearly fixed for filing complaints.

Excusable neglect questions are governed by Federal Bankruptcy Rule 906(b) which provides for the enlargement of time for the performance of certain acts required to be performed and generally follows Rule 6(b)...