In re Rhodes, BAP No. CC-85-1399-VAbM
Decision Date | 23 May 1986 |
Docket Number | BAP No. CC-85-1399-VAbM,Motion No. M5-04696-WL.,Bankruptcy No. LA 84-21211-WL |
Citation | 61 BR 626 |
Parties | In re Herbert B. RHODES, Debtor. Richard C. DeLESK, Appellant, v. Herbert B. RHODES, Appellee. |
Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
Suzanne M. Delesk, Santa Ana, Cal., for appellant.
Herbert B. Rhodes, Lomita, Cal., for appellee.
Before VOLINN, ABRAHAMS and MEYERS, Bankruptcy Judges.
The appellant, Richard C. DeLesk, contends that neither he nor his attorney, Suzanne DeLesk, received notice from the bankruptcy court of the deadline for filing a complaint to determine nondischargeability in the Chapter 7 bankruptcy case of the appellee, Herbert B. Rhodes. DeLesk's complaint was filed six months late. The bankruptcy court held it was untimely filed under BR 4007(c), and denied DeLesk's motion for relief from stay, which was filed four days after the untimely complaint. We affirm.
In this particular case, the facts are best stated by providing a chronology of dates and events:
The issues on appeal are: (1) what was the deadline for filing a complaint to determine dischargeability; (2) did DeLesk's attorney receive notice from the bankruptcy court as to the deadline for filing such a complaint; and (3) if not, does lack of notice, or "excusable neglect," relieve her from meeting the deadline?
Both parties assume that the deadline for filing a complaint to determine dischargeability is calculated from the date the first meeting of creditors was actually held, i.e., April 15, 1985. Therefore, DeLesk contends that his complaint was filed only 41 days late.
This assumption is incorrect. BR 4007(c) provides, in part:
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). . . .
(Emphasis supplied.)
The "first date set" for the meeting of creditors was November 26, 1984. The deadline fixed by the bankruptcy court for filing complaints was January 25, 1985. The deadline does not change, even if the meeting is continued.
The continuance of the first meeting of creditors does not affect the deadline for filing complaints to determine the dischargeability of a debt because the rule refers to the `first date set\' for the meeting of creditors.
In re Hill, 48 B.R. 323, 325 (N.D.Ga.1985).
Therefore, DeLesk's complaint, filed on July 25, 1985, was six months late.
DeLesk contends that the complaint was untimely filed because she did not receive notice from the bankruptcy court of the January 25, 1985 deadline. Her declaration filed in support of the motion to terminate the automatic stay states, in part:
I first learned of this order the order dated Oct. 30, 1984 in a telephone conversation with Charles L. Birke another creditor\'s attorney on July 24, 1985. He informed me that I was named on a proof of service list of an Order dated October 30, 1984, setting January 25, 1985, as the last day for filing complaints to determine dischargeability of debt. He asked me if I had received such an order from the court. I told him that I had never received such an order from the court. I did not received sic such an order until Mr. Birke sent a copy of same to me by mail. The first information I had about such an order was in my telephone conversation with Mr. Birke on July 24, 1985.
(Emphasis supplied.) Also in the record is Charles L. Birke's affidavit stating that he did not receive a copy of the order from the court even though he was on the same proof of service list.
BR 2002(f)(6) requires the bankruptcy court clerk to give notice by mail to all creditors of the deadline for filing complaints to determine dischargeability. The clerk is to use the address shown on the list of creditors, unless otherwise advised. BR 2002(g). We note that the address shown on the clerk's proof of service list here was the same as the one shown on Schedule A-3, and, as mentioned earlier, DeLesk admits that it was her correct address at that time. However, assuming arguendo that DeLesk did not receive actual notice from the court, the complaint is still untimely.
Generally, under the present Bankruptcy Rules, effective August 1, 1983, the bankruptcy court has no discretion to enlarge the time for filing a complaint to determine dischargeability if the request is made after the deadline for...
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