Opinion
CASE NO. 04-56435-RBK, ADVERSARY NO. 05-5028-RBK.
September 29, 2005
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
On this date came on to be considered the "Motion of Pamela K. Frizzell for Summary Judgment" (Court document #8) and the Response filed by the Plaintiffs, Carl D. Cochran and Elizabeth M. Cochran. It appears from the file in this case that the deadline for filing a Complaint to Determine Dischargeability of Debts was February 8, 2005. The Defendant filed a Motion for Summary Judgment based upon the Complaint in this adversary proceeding being file-stamped February 9, 2005, or one day after the deadline.
The Complaint initiating this adversary proceeding was received by the Clerk's office on February 8, 2005, but a cashier's check for the $150.00 filing fee was mistakenly made payable to the Plaintiffs, Carl D. and Elizabeth M. Cochran, rather than the United States Bankruptcy Clerk. The Case Manager contacted the Plaintiffs by telephone, and Mr. Cochran obtained a replacement cashier's check and sent it by overnight mail to the Clerk's office. When it was received on February 9, the Case Manager filed the Complaint initiating this adversary proceeding. The question is whether the Complaint Objecting to Dischargeability of Debt was filed on or before the deadline of February 8.
Federal Rule of Bankruptcy Procedure 7005 governs the service and filing of pleadings and other papers in adversary proceedings, and provides, in pertinent part:
The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk . . . The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
FED. R. BANKR. P. 7005(e). Case law has held that the filing of the complaint initiating an adversary proceeding on or before the deadline is jurisdictional, while the payment of filing fees is not jurisdictional. Patterson Dental Supply, Inc. v. Hochhauser ( In re Hochhauser, 2002 WL 1232933 (Bankr. W.D. Tenn) (complaint received on last day with personal check for filing fee returned to Plaintiff deemed timely filed); Kirkley v. Emory ( In re Emory ), 219 B.R. 703, 709 (Bankr. D.S.C. 1998) (complaint treated as received but "filed" when filing fee was received six days later deemed timely); Colorado Nat'l Bank — Aurora v. Caballer ( In re Caballer ), 120 B.R. 575, 576 (Bankr. D. Colo. 1990) (plaintiff's complaint stamped "received" but not "filed" until filing fee was received two weeks later deemed timely); Security Pac. Fin. Corp. v. Bade ( In re Bade ), 87 B.R. 78, 79 (Bankr. D. Neb. 1988) (complaint received on last day but returned and not "filed" until resubmission with filing fee deemed timely); Church Charity Found. of Long Island v. Spearman (In re Spearman ), 68 B.R. 25, 26-27 (Bankr. E.D.N.Y. 1987) (holding that the "critical act was the filing of the complaint, not the payment of the fee").
One recent case discussing the issue was Stipancich v. Colston ( In re Colston ), 244 B.R. 770 (Bankr. S.D. Ohio 2000). In Colston, the complaint initiating an adversary proceeding was filed on the last day, but the required filing fee was not paid until the next day. In denying the defendant's motion to dismiss the adversary proceeding based upon the untimely payment of the filing fee, the court stated:
The term "filed" for the purpose of filing complaints "means that the pleadings `are placed in the possession of the Clerk of the Court.'" . . . A complaint, timely filed with the clerk's office, is not rendered untimely by the late payment of the filing fee after the deadline . . . In this case, the Creditors completed the critical act of "filing" their complaint with the clerk's office by the deadline of December 6, 1999. The court holds that the timely filed complaint is not rendered untimely by the creditor's late payment of the filing fee.
244 B.R. at 771 (citations and bold print omitted).
Based upon the foregoing, it is, therefore, ORDERED, ADJUDGED AND DECREED that the "Motion of Pamela K. Frizzell for Summary Judgment" is hereby DENIED.