Opinion
BANKRUPTCY CASE NO. 15-11285-WHD ADVERSARY PROCEEDING No. 15-1053-WHD
11-19-2015
IN THE MATTER OF: BRENDA KAY JORDAN, Debtor. LYNN OTWELL, BOBBY JO OTWELL, Plaintiffs, v. BRENDA KAY JORDAN, Defendant.
IN PROCEEDINGS UNDER CHAPTER 7 OF THE BANKRUPTCY CODE ORDER
Before the Court is the Motion to Dismiss Adversary filed by Brenda Kay Jordan (hereinafter, the "Debtor") in the above-captioned adversary proceeding. This matter arises in connection with the complaint of Lynn and Bobby Jo Otwell (hereinafter, the "Plaintiffs") objecting to the dischargeability of a debt pursuant to section 523(a)(6) of the Bankruptcy Code. This constitutes a core proceeding over which this Court has subject matter jurisdiction. See 28 U.S.C. §§ 157(b)(2)(I), 1334.
Discussion
In her Motion to Dismiss, the Debtor argues that the Plaintiffs' complaint is time barred by § 523(c) and Federal Rule of Bankruptcy Procedure 4007(c). For the reasons set forth infra, the Court agrees.
The Debtor also contends that the complaint is barred by the equitable doctrine of laches and that the Plaintiffs failed to serve the Debtor with a complaint and summons in accordance with Rule 7004. As the Court finds sufficient reason to dismiss the case pursuant to Rule 4007(c), there is no need to address these alternatives.
The Debtor filed a voluntary petition on June 17, 2015, under Chapter 7 of the Bankruptcy Code. The next day, the Court issued notice to all creditors, including the Plaintiffs, of the meeting of creditors under 11 U.S.C. § 341 (hereinafter, the "341 meeting"), which was scheduled for July 24, 2015. On September 24, 2015, the Plaintiffs filed their complaint initiating this adversary proceeding. The Plaintiffs allege that the debt owed to them by the Debtor should not be discharged pursuant to § 523(a)(6), which excepts from discharge debts owed for "willful and malicious injury." On September 29, 2015, the Debtor received her discharge and the bankruptcy case was closed.
Because the Plaintiffs object to the dischargeability of a debt under § 523(a)(6), this proceeding implicates the provisions of § 523(c). Section 523(c) provides:
[T]he debtor shall be discharged from a debt of the kind specified in paragraph (2), (4), or (6) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), or (6), as the case may be, of subsection (a) of this section.11 U.S.C. § 523(a)(1). The procedure for actions brought under § 523(c) in a Chapter 7 case is governed by Rule 4007(c), which requires that "a complaint to determine dischargeability of a debt under § 523(c)...be filed no later than 60 days after the first date set for the [341 meeting]" FED. R. BANKR. P. 4007(c). Should a creditor need more time, Rule 4007(c) allows a court, for cause, to extend the time to file a complaint on motion of a party in interest, but only if that motion was filed before the initial sixty-day period had expired. Id. So long as the plaintiff-creditor had notice of the bankruptcy case, a court may not allow a complaint filed outside of the sixty-day window. See In re Tucker, 263 B.R. 632, 635-36 (Bankr. M.D. Fla. 2001); accord FED. R. BANKR. P. 9006(b)(3) (allowing enlargement of time for bringing an action under Rule 4007(c) "only to the extent and under the conditions stated in [that] rule[]"); see also Stuart v. Mendenhall (In re Mendenhall), 572 F. App'x 858, 862 (11th Cir. 2014) (stating that the court may only extend the time to file a complaint if the motion is filed before time expires); Byrd v. Alton (In re Alton), 837 F.2d 457, 459 (11th Cir. 1988) ("There is 'almost universal agreement that the provisions of [Rule] 4007(c) are mandatory and do not allow the Court any discretion to grant a late filed motion to extend time to file a dischargeability complaint.'" (quoting In re Maher, 51 B.R. 848, 852 (Bankr. N.D. Iowa 1985))). Strict application of this limitation ensures protection of a debtor's "fresh start." See Ichinose v. Homer Nat'l Bank (In re Ichinose), 946 F.2d 1169, 1172-73 (5th Cir. 1991).
Here, the first date set for the 341 meeting was July 24, 2015. Computing the sixty-day span according to Rule 9006, this meant the last day to file a complaint was September 22, 2015. However, the Plaintiffs filed their complaint on September 24, 2015—two days after the time had run. Further, the Court finds no excuse for why the Plaintiffs missed this deadline, as they had ample notice of the bankruptcy case. See Certificate of Mailing of Notice of Meeting of Creditors, Case No. 15-11285-WHD, Doc. No. 9. Because the Plaintiffs had notice of the case and did not file their complaint until two days after the running of the sixty-day period prescribed by Rule 4007(c), their complaint is time barred.
"When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period...." FED. R. BANKR. P. 9006(a)(1). --------
Conclusion
For the reasons set forth above, it is hereby ORDERED that the Debtor's Motion to Dismiss Adversary is GRANTED, and the Plaintiffs' complaint, Adv. Proc. No. 15-1053-WHD, is DISMISSED.
The Clerk is DIRECTED to serve a copy of this Order on the Plaintiffs, the Debtor, and respective counsel.
IT IS ORDERED as set forth below:
Date: November 19, 2015
/s/ _________
W. Homer Drake
U.S. Bankruptcy Court Judge