Summary
finding "unique and exceptional circumstances" doctrine might warrant relief from Rule 4007(c) time limits if "an emergency situation prevented the filing, or that a court explicitly misled [a party]"
Summary of this case from Berkowitz v. Turchin (In re Turchin)Opinion
No. 12-17359
02-05-2015
In re. DONALD CHARLES SCHWARTZ, Debtor, DAVID A. WASNEY, SR., Plaintiff-Appellant, v. DONALD CHARLES SCHWARTZ, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 5:09-cv-05831-EJD MEMORANDUM Appeal from the United States District Court for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted November 21, 2014 San Francisco, California Before: THOMAS and CHRISTEN, Circuit Judges, and SEABRIGHT, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation.
--------
David A. Wasney, Sr., appeals the district court's order affirming the bankruptcy court's dismissal of his 11 U.S.C. § 523(c) adversary complaint against Donald Schwartz as untimely under Federal Rule of Bankruptcy Procedure 4007(c). We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1), and we affirm.
Wasney concedes that his adversary complaint was filed one day after the bar date. He sought equitable tolling or other equitable relief. The bankruptcy court, however, lacked equitable power to grant Wasney relief from the untimely filing. See Anwar v. Johnson, 720 F.3d 1183, 1187 (9th Cir. 2013). "[W]e have repeatedly held that [Rule 4007(c)'s deadline] . . . is 'strict' and, without qualification, 'cannot be extended unless a motion is made before the 60-day limit expires.'" Id. (quoting In re Kennerley, 995 F.2d 145, 146 (9th Cir. 1993)) (other citations omitted).
Even if applicable, Wasney has not demonstrated "unique and exceptional circumstances" that might warrant relief from Rule 4007(c)'s strict time limit. Id. at 1187-88 & n.6. Wasney's counsel's declaration does not establish that an emergency situation prevented the filing, or that a court explicitly misled him. See In re Kennerley, 995 F.2d at 148 ("[T]he unique circumstances exception would appear to be limited to situations where a court explictly misleads a party."). AFFIRMED.