Opinion
Bankruptcy No. 81-00817-BKC-JAG.
December 9, 1983.
Edmund A. Adamo, Pompano Beach, Fla., for debtors.
A.W. Beck, Plantation, Fla., Trustee.
Charles Throckmorton, c/o Kozyak Tropin, Miami, Fla., for William Dunne.
ORDER REOPENING CASE AND SETTING EVIDENTIARY HEARING
This matter came before the court on October 17, 1983 on the debtor's motion to reopen the case to amend his schedules by adding a creditor not previously listed. The court concludes that it is bound by Robinson v. Mann, 339 F.2d 547 (5th Cir. 1964), made binding precedent of the Eleventh Circuit through Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981). Further, the court concludes that the adoption of 11 U.S.C. § 523(a)(3) does not change the applicability of Robinson, which was decided under the Bankruptcy Act, although the legislative history is not entirely clear on this point. Under Robinson, a debtor may be permitted to amend his schedules beyond the date for filing claims, but such an amendment will only be allowed in exceptional circumstances in the equitable discretion of the court. Also, e.g., In re Souras, 19 B.R. 798 (Bkrtcy.E.D.Va. 1982) and In re Holloway, 10 B.R. 744 (Bkrtcy.D.R.I. 1981). An evidentiary hearing is necessary to determine whether the debtor here should be permitted to amend his schedules to list William A. Dunne as a creditor and whether exceptional circumstances exist. Counsel are urged to present to the court case law defining "exceptional circumstances" prior to the hearing date. It is, therefore,
ORDERED that:
1. The case be reopened, with payment of the filing fee waived until the next hearing, at which time it will be determined whether or not a filing fee is required.
2. A hearing is set on Monday, January 9, 1984, at 9:15 a.m., in the United States Courthouse, Courtroom No. 206A, 299 East Broward Boulevard, Fort Lauderdale, Florida, on the debtor's Motion to Amend Schedule of Unsecured Creditors.