In re Gunn

• Decision Date: 06 March 1990
• Docket Number: BAP No. CC-89-1133 MeVJ,Bankruptcy No. SA 86-03662-JB.
• Citation: 111 BR 291
• Parties: In re Gordon C. GUNN, Debtor. FIRST FEDERAL SAVINGS BANK OF ROGERS, ARKANSAS, Appellant, v. Gordon C. GUNN, Appellee.
• Court: U.S. Bankruptcy Appellate Panel, Ninth Circuit

111 B.R. 291 (1990)

In re Gordon C. GUNN, Debtor.

FIRST FEDERAL SAVINGS BANK OF ROGERS, ARKANSAS, Appellant, v. Gordon C. GUNN, Appellee.

BAP No. CC-89-1133 MeVJ, Bankruptcy No. SA 86-03662-JB.

United States Bankruptcy Appellate Panel of the Ninth Circuit.

Argued and Submitted November 14, 1989.

Decided March 6, 1990.

Simon Aron, Manatt, Phelps, Rothenberg & Phillips, Los Angeles, Cal., for appellant.

Arnold M. Stone, Newport Beach, Cal., for appellee.

Before MEYERS, VOLINN and JONES, Bankruptcy Judges.

OPINION

MEYERS, Bankruptcy Judge:

I

A creditor filed a timely complaint objecting to the dischargeability of certain debts and to the discharge of the debtor. However, well beyond the 60-day period stated by Bankruptcy Rule 4004(a) for filing such objections, the creditor sought to augment its original complaint with two additional causes of action opposing discharge of the debtor. The trial court denied the motion. We REVERSE and REMAND for trial.

II FACTS

Appellee debtor Gordon C. Gunn ("Gunn") was the guarantor of two promissory notes payable to the Appellant creditor First Federal Savings Bank of Rogers, Arkansas ("First Federal"). These notes, totalling more than $22 million, were executed by Gunn on behalf of Caltennco-Colorado, Inc., of which Gunn was a principal. Once the notes were in a default status, First Federal looked to Gunn for payment. Gunn filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code ("Code") in July, 1986.

First Federal filed a timely complaint that objected to Gunn's discharge and the dischargeability of Gunn's debt. The first two causes of action invoked Code Sections 523(a)(2)(A) and (B), alleging the debtor's false pretenses, fraud and submission of materially false written financial statements. The third cause of action opposed Gunn's overall discharge on the Section 727(a)(5) ground of failure to explain satisfactorily the loss of funds loaned by the creditor.

After almost two years of substantial formal and informal discovery, and two and one-half months prior to the scheduled trial, First Federal sought to amend its complaint. It asserted additional causes under Sections 727(a)(3) and (4), for concealing or failing to keep adequate books and records and for knowingly making false oaths. The debtor opposed the late amendment on grounds of prejudice, undue delay and bad faith.

The Motion to Amend was denied at two separate hearings. Following the first hearing in November, 1988, First Federal redrafted its amended complaint to particularize allegations of the debtor's active, fraudulent concealment of facts. An order denying the renewed Motion was entered on January 26, 1989. The Panel granted leave to appeal this interlocutory order on April 20, 1989.

III STANDARD OF REVIEW

The allowance or denial of amendments of pleadings under Bankruptcy Rule 7015 and Federal Rule of Civil Procedure 15 lies generally in the discretion of the trial court. Decisions are therefore reviewed under the abuse of discretion standard. Mende v. Dun & Bradstreet, Inc., 670 F.2d 129 (9th Cir.1982); Waters v. Weyerhaeuser Mortg. Co., 582 F.2d 503, 507 (9th Cir.1978); Komie v. Buehler Corp., 449 F.2d 644, 648 (9th Cir.1971). Nevertheless, leave to amend must be given freely when justice requires and refusal should be placed on some valid ground. Fed.R.Civ.P. 15(a); In re Zupancic, 38 B.R. 754, 761 (9th Cir. BAP 1984); 4 Collier on Bankruptcy ¶ 727.144, at 727-98 (15th ed. 1989).

IV DISCUSSION

The amended complaint was filed long after the Bankruptcy Rule 4004(a) deadline had passed. However, the court below should have granted First Federal's Motion to Amend since the filing of the amended complaint related back to the date of the original complaint, pursuant to Fed. R.Civ.P. 15(c). See Bankruptcy Rule 7015. We do not reach the issue of whether the running of the period for filing was equitably tolled by alleged concealment of information that, if known earlier, would have enabled First Federal to comply with the Rule 4004(a) requirement.

By the terms of Fed.R.Civ.P. 15(c), whenever the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth, or attempted to be set forth, in the original pleading, the amendment relates back to the date of the original pleading. In applying this standard, the Panel stated in In re Dean, 11 B.R. 542 (9th Cir. BAP 1981) that:

The basic test is whether the evidence with respect to the second set of allegations could have been introduced under the original complaint, liberally construed; or, as a corollary, that in terms of notice, one may fairly perceive some identification or relationship between what was pleaded in the original and amended complaints.

11 B.R. at 545.

In discharge cases such as this one, the opportunity to amend is especially important because of the short time frame under Rule 4004(a) during which such complaints must be filed. In re Englander, 92 B.R. 425, 428 (9th Cir. BAP 1988); In re Jenkin, 83 B.R. 733, 735 (9th Cir. BAP 1988).

Several cases involving objections to discharge have applied these standards to allow the relation back of amended complaints. In Englander, for example, the original complaint simply referred to Section 523(a) without alleging any specific facts apart from the outstanding balance on loans. The amended complaint, filed after the Rule 4004(a) bar date, described Section 523 prohibited conduct in greater detail. The court allowed the complaint, concluding: "the amended complaint is sufficiently identifiable with the original claim since the clear subject of both complaints is the dischargeability of specific loans." 92 B.R. at 428. Also, in In re Krank, 84 B.R. 372, 375-77 (Bkrtcy.E.Pa.1988) a Section 727 complaint was held amendable 17 months later to include a Section 523(a)(4) claim. The court found an identity of issues because "the cause of action that plaintiff is now attempting to clarify arose out of the same attorney-client relationship underlying the original complaint." 84 B.R. at 376. See also In re Blewett, 14 B.R. 840, 842 (9th Cir. BAP 1981) (trial court's denial of amendment to clarify complaint as to Sections 523 and 727 held an abuse of discretion); In re Englund, 20 B.R. 957 (Bkrtcy.E.Mich.1982) (Section 523(a)(2) claim added to Section 523(a)(4) complaint).

The Englander and Krank cases hold that a general nexus between the original and amended complaints — such as the same loans involved, or the same attorney/client relationship — satisfies the "same transaction or occurrence" requirement of Fed.R. Civ.P. 15(c). Other cases demand a closer identity between the facts that would be provable under the original complaint and those that would be provable under the causes alleged in the amended complaint. Even using this more stringent standard, however, amended complaints have been allowed under facts similar to those in the instant case. For example, in In re Morgan, 41 B.R. 259 (Bkrtcy.Tenn.1984) plaintiff originally relied on Sections 727(a)(2)(A) and (B) for fraudulent concealment and transfer of property to oppose debtor's discharge. In allowing amendment of the complaint to add a Section 727(a)(4)(A) cause of action for rendering false accounts, the court stated:

. . . the act of rendering the allegedly false account is the act of concealment or at least is

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