In re Lewis
| Decision Date | 20 March 1987 |
| Docket Number | Adv. No. 86 A 825.,Bankruptcy No. 86 B 4186 |
| Citation | 71 BR 633 |
| Court | U.S. Bankruptcy Court — Northern District of Illinois |
| Parties | In re Gerson E. LEWIS, Debtor. FIRST NATIONAL BANK OF DEERFIELD, Plaintiff, v. Gerson E. LEWIS, Defendant. |
Alan Rauh Orschel of Crowley, Barrett & Karaba, Chicago, Ill., for First Nat. Bank of Deerfield.
James Carmel of Carmel, Marcus & Baker, Chicago, Ill., for debtor.
Mathewson, Hamblet & Casey, Chicago, Ill., for Joseph Cohen, trustee.
The First National Bank of Deerfield ("Plaintiff") has filed a complaint which seeks to bar the discharge of the debtor Gerson E. Lewis ("Debtor") under the provisions of 11 U.S.C. §§ 523 and 727. Joseph Cohen ("Successor Trustee") has joined the Plaintiff as an additional party plaintiff as respects the right of the Debtor to a discharge under the provisions of § 727 () The Debtor has moved the Court to dismiss the complaint as having been untimely filed in violation of Bankruptcy Rules 4004 and 4007. It is this motion which the Court now decides.
The facts are not in dispute as respects the motion. On November 15, 1985, the Debtor commenced his Chapter 7 in the United States Bankruptcy Court, for the Southern District of Florida. On November 25, 1985, the Clerk of that Court directed notice to creditors, including the Plaintiff, scheduling a meeting of the creditors as mandated by § 341(a) of the Bankruptcy Code. Included in this notice was the deadline date of February 14, 1986 as both the last day for filing a complaint objecting to the discharge of the Debtor pursuant to § 727, and as the deadline for filing a complaint to determine the dischargeability of a debt pursuant to § 523(c). This meeting of the creditors was postponed due to the Debtor's illness.
On January 8, 1986 the Plaintiff filed a motion with the Florida Bankruptcy Court for a change of venue to the Northern District of Illinois, Eastern Division. An order transferring venue of the case was signed on January 28, 1986. On February 6, 1986 the Debtor filed a motion for rehearing. The motion for rehearing was denied on February 12, 1986. Two days later, the deadline for objections to discharge expired.
On March 11, 1986 the Clerk of Florida Bankruptcy Court transferred its file to this Court who received it on March 17, 1986. It is to be noted that the time for filing complaints objecting to both discharge or dischargeability of the Debtor had expired prior to the transfer.
On April 28, 1986 the Clerk of this Court directed a combined notice and order ("combined order") to be sent to all creditors, including the Plaintiff, notifying all parties of the pendency of this proceeding in the Northern District of Illinois, Eastern Division. This combined order is automatically sent out by the Court's computer upon the Court's receipt of a case, whether received by the original filing of a case or by the Court's receipt of a case file due to change of venue. The combined order stated that a meeting of creditors would be held on May 22, 1986 pursuant to § 341(a). The combined order fixed July 22, 1986 as the deadline for all actions under § 523(c) and § 727.
The Plaintiff urges this Court that its complaint, filed on July 22, 1986, is timely because the combined order of April 28, 1986 altered and extended the original dates. Plaintiff argues that this Court, upon transfer of venue, gained exclusive jurisdiction over this matter, thus giving it the power to alter any dates set by the transfer Court by a subsequent order. In re Miller, 485 F.2d 74 (5th Cir.1973) cert. denied sub nom., Landweher v. United States, 415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886 (1974). Miller concerned extending the dates for filing of a proof of claim by a transferee Bankruptcy Referee in Louisiana, who received the case from a Bankruptcy Referee in Florida on a change of venue.
This Court finds Miller distinguishable from the present case, based on the difference between the bar date for filing a proof of claim, and an objection to discharge or the determination of the dischargeability of a debt. Bankruptcy Rule 3002(c) sets forth six exceptions in which a proof of claim can be filed beyond the ninety day limit, showing a willingness on behalf of the authors of the rules to allow some flexibility in the filing of late claims in certain circumstances. This willingness is not present in either Bankruptcy Rule 4004 or 4007. In pertinent part, Bankruptcy Rule 4004 provides as follows:
Bankruptcy Rule 4007(c) provides as follows:
(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) . . . The court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. (Emphasis added.)
Bankruptcy Rules 4004(b) and 4007(c) have been construed that once the time for filing discharge or dischargeability complaint expires, it cannot be extended on grounds of excusable neglect or otherwise. In re Kirsch, 65 B.R. 297, 300 (Bankr.N.D. Ill.1986); In re Shelton, 58 B.R. 746, 748-49 (Bankr.N.D.Ill.1986). Any complaint objecting to discharge must be filed before the time has expired. See In re Smolen, 48 B.R. 633, 635 (Bankr.N.D.Ill.1985). ("Motion to enlarge the time within which to file a complaint to determine dischargeability must be made before the time to file has expired."). See also Vaccariello v. Lagrotteria, 43 B.R. 1007, 1012 (N.D.Ill. 1984) ()
The Debtor correctly brings to this Court's attention Matter of Hill, 48 B.R. 323 (N.D.Ga.1985). Two of the arguments presented in Hill are similar to the Plaintiff's arguments in this case. The first contention that the Hill court found unpersuasive was that the sixty day time limit was tolled until the § 341(a) meeting actually took place. The Bankruptcy Rules make no special provision for automatically extending the filing date for dischargeability complaints in the event of a rescheduling of the first meeting of creditors, and the Court can not read one into them. Id. at 325. The deadline date stands, whether or not the § 341 meeting is actually held. In re Rhodes, 61 Bankr. 626 (9th Cir.BAP 1986); In re McDowell, 57 B.R. 310 (M.D.Penn.1986).
Finally, with respect to the Plaintiff's reliance on the April 28, 1986 computer printout notice, the Hill court stated:
. . . The Bankruptcy Rules do not contemplate the giving of any notice with respect to the due-date for objections to discharge and complaints seeking a dischargeability determination . . . a notice given with respect to the due-date for objections to discharge in complaints seeking...
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