In re Hill

Full title: IN RE: PAUL HILL DEBTOR FRANKLIN MAYS a/k/a FRANK MAYS PLAINTIFF v. PAUL…

Court: United States Bankruptcy Court, E.D. Kentucky, London Division

Date published: Nov 20, 2009

CASE NO. 08-60070, ADV. NO. 09-6062 (Bankr. E.D. Ky. Nov. 20, 2009)

Opinion

CASE NO. 08-60070, ADV. NO. 09-6062.

November 20, 2009

MEMORANDUM OPINION

JOSEPH SCOTT JR., Bankruptcy Judge

This matter having come before the Court on a trial held on October 13, 2009, and the matter having been taken under submission, the Court hereby issues this Memorandum Opinion.

The Court has already ruled from the bench that Plaintiff has proven the elements of fraud pursuant to 11 U.S.C. § 523(a)(2). Thus the remaining and dispositive issue is whether this adversary proceeding is time barred because it was not timely filed.

Facts.

1. Defendant filed a chapter 7 bankruptcy petition on January 24, 2008.

2. The date set for the first meeting of creditors was February 28, 2008.

3. The last date on which a complaint could have been timely filed to determine dischargeability was April 28, 2008.

2. Plaintiff was omitted from the schedules and never received a notice of bankruptcy.

3. At a motion hour in state court on February 11, 2008, bankruptcy was discussed, but the Court finds that the evidence is lacking that Plaintiff was informed that bankruptcy had already been filed at that time.

4. At a mediation conference in a state court action on July 18, 2008, bankruptcy was once again discussed, but the evidence is lacking that Plaintiff was informed that bankruptcy had already been filed at that time. Furthermore, that date is after the deadline to file a timely complaint.

5. At a trial in state court on December 16, 2008, Plaintiff and his counsel were notified of the bankruptcy.

6. On July 16, 2009, the complaint in this adversary proceeding was filed.

Conclusions of Law.

Federal Rules of Bankruptcy Procedure 4007 requires a complaint to determine the dischargeability of a debt under 523(c) shall be filed no later than 60 days after the date set for the first meeting of creditors.

11 U.S.C. § 523(a)(3) provides that a debt neither scheduled nor listed is not discharged unless the creditor acquires actual knowledge of the bankruptcy in time to timely file a complaint to determine the dischargeability of the debt.

Here, a timely complaint would have been by April 28, 2008; but evidence is lacking that Plaintiff knew of the bankruptcy filing at that time. The evidence is that Plaintiff clearly knew of the bankruptcy on December 16, 2008.

"Actual knowledge of the case for purposes of this discharge exception is knowledge received in time to allow a creditor to timely file a claim and to timely file a complaint to determine the dischargeability of the debt if it falls within the ambit of section 523(a)(2), (a)(4), (a)(6) or possibly (a)(15)." COLLIER ON BANKRUPTCY 523-69 (15^th ed.) citing In re Compton, 891 F.2d 1180 (5^th Cir. 1990); Robinson v. Henderson, 162 So. 2d 116 (La. Ct. App. 1964).

Here, Plaintiff did not receive actual knowledge of the bankruptcy in time to timely file a complaint to determine dischargeability of the debt. Thus the complaint here is not time-barred.

This memorandum opinion constitutes the Court's findings of fact and conclusions of law. A separate order shall be entered granting judgment for the Plaintiff.