In re Fiore

Full title: IN RE FIORE

Court: United States Bankruptcy Court, M.D. Florida

Date published: Aug 7, 1980

No. 77-1217 T (Bankr. M.D. Fla. Aug. 7, 1980)

Opinion

No. 77-1217 T

August 7, 1980

Former Bankruptcy Act — Discharge of Debts — Unscheduled Debts — Notice to Creditor

PASKAY, Bankruptcy Judge.

A liability represented by a state court judgment will be declared a non-dischargeable debt by virtue of Section 17a(3) of the Bankruptcy Act if the creditor is not scheduled and does not have actual notice of the pendency of the bankruptcy proceeding. Further, even if the existence of a joint venture were established between the creditor and another entity, knowledge within the maning of Section 17a(3) "must be actually existent and not merely constructive or imputed." See Sec. 17a(3) at ¶ 2147 and Sec. 523(a)(3) at ¶ 9229.

[Digest of Opinion]

At the time of the debtor's petition were filed there was an unsatisfied judgment in favor of the creditor and against the bankrupts. Notwithstanding this undisputed fact, the creditor was not listed by the bankrupt in their schedule of liabilities and was not notified by the court of the pendency of the proceedings.

Approximately six months after discharge, the debtors sought to amend, in order to schedule the creditor for the first time since the institution of the case.

Thereafter, the creditor instituted the present adversary proceeding challenging the dischargeability of the debt pursuant to Section 17a(3) of the Bankruptcy Act. The debtors argued that there was a joint venture between the creditor and another entity, and that notice of the bankruptcy proceedings received by this organization should be imputed to the creditor.

However, the record failed to establish the existence of a joint venture on the part of the creditor and this other entity which could have formed the basis for imputing knowledge. Furthermore, even if the existence of a joint venture were established, knowledge within the meaning of Section 17a(3) "must be actually existent and not mere constructive notice or imputed knowledge." Accordingly, the creditor not having received any notice, the court was satisfied that the bankrupt's debt should be excluded from the general discharge provisions of the Bankruptcy Act.