Matter of Serafini, Bankruptcy No. 81-00774

• Decision Date: 28 April 1983
• Docket Number: Bankruptcy No. 81-00774,Adv. No. 83-0099.
• Citation: 30 BR 606
• Parties: In the Matter of Robert D. SERAFINI, Debtor. Robert D. SERAFINI, Plaintiff, v. UNION BANK & TRUST CO., Erie and Robert W. Parker, Jr., Trustee, Defendant.
• Court: U.S. Bankruptcy Court — Western District of Pennsylvania

30 B.R. 606 (1983)

In the Matter of Robert D. SERAFINI, Debtor Robert D. SERAFINI, Plaintiff, v. UNION BANK & TRUST CO., Erie and Robert W. Parker, Jr., Trustee, Defendant.

Bankruptcy No. 81-00774, Adv. No. 83-0099.

United States Bankruptcy Court, W.D. Pennsylvania.

April 28, 1983.

Warren W. Bentz and Clinton A. Shamp, Erie, Pa., for plaintiff.

James J. Stuczynski, Erie, Pa., for Union Bank & Trust Co.

Robert W. Parker, Erie, Pa., pro se for trustee.

MEMORANDUM AND ORDER REFUSING TO REOPEN CLOSED CASE TO AVOID LIENS AND DENYING COMPLAINT THEREFOR

WILLIAM B. WASHABAUGH, Jr., Bankruptcy Judge:

The within bankruptcy case was filed December 24, 1981 and closed June 29, 1982 after the discharge and reaffirmation hearing required by 11 U.S.C. § 524 May 12, 1982, and the granting of the debtor's discharge June 17, 1982. A petition to reopen to add additional creditors to the schedules was filed July 29, 1982 and after hearing on notice to parties-in-interest the case was reopened and the additional creditors added notwithstanding the fact that the deadline dates for objections and complaints to determine dischargeability had expired February 24, 1982. The case was again closed on approval of the trustee's report of no distribution August 25, 1982 and the matter is before us on a further Petition to reopen filed March 4, 1983 to permit the filing of an adversary proceeding to avoid the lien of a charging order obtained against the debtor's interest in partnership real estate August 25, 1981 before the initial filing of the proceeding December 24, 1981.

It is our opinion that the debtor's petition to reopen the case a second time for the scheduling of hearings on his complaint to avoid the lien of the Union Bank's Charging Order at Adversary Proceeding No. 83-0099 filed more than one year and two months after the case was initiated, eight months after it was closed the first time and six months after its second closing, should be denied.

Whether a closed bankruptcy case should be reopened to permit a debtor to obtain relief to which he would have been entitled if seasonably applied for is a matter within the sound discretion of the Court: In re Perlman, 116 F.2d 49, 51 (2nd Cir.1940); Bartle v. Markson, 357 F.2d 517 (2nd Cir.1966), and the burden of establishing proper grounds for the allowance of such reopening is on the party seeking the same: In re Fair Creamery, 193 F.2d 5 (6th Cir.1952). That such reopening will be denied when applied for twelve months after the holding of the discharge hearing and seventeen months after date of the order for relief in a case in which a secured creditor was endeavoring to obtain satisfaction of the judgment sought to be avoided thru pending execution proceedings at the time of the bankruptcy filing was held in In re Robert Lee Williams, 17 B.R. 204 (Bkrtcy.W.D.Ky.1982) in which the Court quoted In re Ridill, 1 B.R. 216, 218 (C.D.Cal. 1979) to the effect that one of the purposes of bankruptcy proceedings is to:

". . . . secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period. . . . Crosby v. Mills, 413 F.2d 1273 (10th Cir.1969) which adopted the reasoning in Katchen v. Landy, 382 U.S. 323 (86 S.Ct. 467, 15 L.Ed.2d 391) (1966)."

While reopenings to avoid liens have been allowed on the ground that no time limit is provided for applications therefor under the remedial provisions of Section 522(f) in In re Hall, 22 B.R. 701 (Bkrtcy.E.D.Pa.1982) and in In Re Gene Haywood Russell, et ux, 20 B.R. 537 (Bkrtcy.W.D.Pa.1982) in the within Court (Gibson, J.) and others, we think...