In re Williams, Bankruptcy No. 90-00230.

• Decision Date: 15 January 1991
• Docket Number: Bankruptcy No. 90-00230.
• Citation: 124 BR 864
• Parties: In re Judith Nadine WILLIAMS, Debtor.
• Court: U.S. Bankruptcy Court — Northern District of Florida

124 B.R. 864 (1991)

In re Judith Nadine WILLIAMS, Debtor.

Bankruptcy No. 90-00230.

United States Bankruptcy Court, N.D. Florida, Gainesville Division.

January 15, 1991.

Eric S. Ruff, Gainesville, Fla., for debtor.

Mark Freund, Tallahassee, Fla., Trustee.

ORDER ON DEBTOR'S MOTION TO VACATE

LEWIS M. KILLIAN, Jr., Bankruptcy Judge.

This matter came on for hearing January 3, 1991 on Debtor's motion to vacate the order, entered on November 5, 1990, extending by 70 days the time for the trustee to object to the debtor's claim of exemptions. Having considered the arguments of counsel, and for the reasons set forth below, debtor's motion is denied.

The debtors filed their petition for protection under Chapter 7 of the Bankruptcy Code on September 4, 1990. The § 341 meeting of creditors was held on October 2, 1990. On October 31, 1990, the Chapter 7 trustee filed a motion to extend the period for filing objections to the claim of exempt property. The debtor filed a response to the trustee's motion on November 7, 1990. On November 5, 1990, prior to receiving the debtor's response, the Court granted the trustee's motion. The debtors then, on November 27, 1990, filed the motion to vacate the Court's November 5 order. The issue presently before the Court is whether the Court has the authority to extend the time for filing objections to exemptions after the 30 day period following the conclusion of the meeting of creditors has expired.

At the hearing, Debtors argued that Bankruptcy Rule 4003(b) allows the court to enter an order to extend the period of objection only if the order is entered within the 30 day period. Rule 4003(b) states, in part, that "the trustee . . . may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors . . . unless, within such period, further time is granted by the court." Debtors cite to In re Brayshaw, 912 F.2d 1255 (10th Cir.1990), where the Tenth Circuit ruled on this very same point. In that case, the Court studied 4003(b) and found that "a bankruptcy court can extend the period for objections to exemptions only by acting within the original time period . . . The bankruptcy court was without power to grant the trustee's motion for an extension once the original period expired." Supra, at 1257. If we were to follow the Tenth Circuit's strict construction of the rule, in order for the order granting the extension to be valid, we would have had to enter the order by November 1, 1990.

Through our research, we found no other cases that have ruled directly on this point. Most cases simply recognize that the trustee may file for an extension of time within the 30 day period. In re Peterson, 920 F.2d 1389 (8th Cir.1990), In re Blum, 39 B.R. 897 (Bkrtcy.S.D.Fla.1984). Additionally, the Editors' Comments to Rule 4003(b), in Norton's Bankruptcy Law and Practice 1990-1991, states that the trustee has 30 days to file a motion for an extension of time. We agree with these authorities and find that the trustee has 30 days to request an extension of time for filing objections to the debtors' exemptions.

Bankruptcy Code § 365(d)(4) has similar language to BR 4003(b). That provision demands a trustee to assume or reject a lease within 60 days after the order for relief, "or within such additional time as the court, for cause, within such 60-day period, fixes." Like 4003(d), § 365(d)(4) appears to require the court to act within a specific time period. In a case before the Ninth Circuit, In re Southwest Aircraft Services, Inc., 831 F.2d 848 (9th Cir.1987), the court considered whether the bankruptcy court had authority to rule on a timely filed motion after the 60 day limit. The appellate court discussed the impracticability of requiring the court to act before the 60th day. It said that such an interpretation would encourage unnecessary motions for extension of time; leading to even greater delays. The Court went on to hold that the interpretation that "best comports with congressional intent is the one that preserves the authority of the bankruptcy court to rule on timely filed motions."

The Ninth Circuit also discussed the former version of Federal Rule of...