Chi. Title Ins. Co. v. Mazik (In re Mazik)

592 B.R. 604
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedOctober 30, 2018
DocketBky. No. 18-10643 ELF; Adv. No. 18-151 ELF
StatusPublished
Cited by14 cases

This text of 592 B.R. 604 (Chi. Title Ins. Co. v. Mazik (In re Mazik)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chi. Title Ins. Co. v. Mazik (In re Mazik), 592 B.R. 604 (Pa. 2018).

Opinion

ERIC L. FRANK, U.S. BANKRUPTCY JUDGE

I. INTRODUCTION

In this adversary proceeding, Chicago Title Insurance Co. ("Chicago Title") seeks a determination that the debt owed by Debtor Tatyana Mazik ("the Debtor") is nondischargeable under 11 U.S.C. § 523(a)(2)(A) and § 523(a)(6). Pursuant to Fed. R. Civ. P. 12(b)(6), the Debtor filed a motion to dismiss the adversary complaint ("the Motion"). The Motion is based primarily on three (3) grounds:

(1) the untimely filing of Chicago Title's Complaint under nonbankruptcy law;
(2) the untimely filing of the Complaint under federal bankruptcy law; and
(3) failure to state facts alleging a valid claim against the Debtor.

For the reasons explained below, the Motion will be granted, and the Complaint dismissed. However, Chicago Title will be granted leave to amend to assert a claim under 11 U.S.C. § 523(a)(3).

II. PROCEDURAL HISTORY

Prior to commencing this bankruptcy case, the Debtor filed an earlier case, under chapter 7, on March 28, 2017, docketed at Bky. No. 17-12125 ("the Prior Case").

On June 30, 2017, Chicago Title filed an adversary proceeding in the Prior Case, alleging that the debt arising from two (2) promissory notes it holds ("the Notes") was nondischargeable under § 523(a)(2) and (a)(6). (Adv. No. 17-188). The Prior Case was dismissed on August 9, 2017 after the Debtor failed to attend several § 341 meetings of creditors. As a result, thereafter, the adversary proceeding was also dismissed.

The Debtor filed the present chapter 13 bankruptcy case on January 31, 2018.

On February 23, 2018, the court issued the Notice of Chapter 13 Bankruptcy Case (Official Form 309I) ("the § 341 Notice"). The § 341 Notice set April 4, 2018 as the date for the meeting of creditors and fixed June 3, 2018 as the deadline to file a complaint challenging the dischargeability of a debt under 11 U.S.C. § 523(a)(2), § 523(a)(4) and § 1328(f). See Fed. R. Bankr. P. 4007(c) (nondischargeability *607complaints under § 523(a)(2) or (a)(4) must be filed "no later than 60 days after the first date set for the meeting of creditors").1

On July 2, 2018, Chicago Title filed the instant adversary complaint ("the Complaint") and a motion to enlarge time to file a proof of claim (Bky. No. 18-10643, Doc. # 47).2

On July 16, 2018, the Debtor filed the Motion. (Adv. No. 18-151, Doc. # 9). Chicago Title responded to the Motion on August 7, 2018. (Adv. No. 18-151, Doc. # 13).

III. MOTION TO DISMISS STANDARD

The Debtor moves to dismiss the Complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6) is applicable in adversary proceedings under Fed. R. Bankr. P. 7012. I have previously discussed the legal standard for a motion to dismiss:

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the factual allegations of a complaint, see Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and determines whether the plaintiff is entitled to offer evidence to support the claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A defendant is entitled to dismissal of a complaint only if the plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 547, 127 S.Ct. 1955. A claim is facially plausible where the facts set forth in the complaint allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In evaluating the plausibility of the plaintiff's claim, the court conducts a context-specific evaluation of the complaint, drawing from its judicial experience and common sense. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) ; In re Universal Marketing, Inc., 460 B.R. 828, 834 (Bankr. E.D. Pa. 2011) (citing authorities). In doing so, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, viewing them in the light most favorable to the plaintiff. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ;

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Cite This Page — Counsel Stack

Bluebook (online)
592 B.R. 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chi-title-ins-co-v-mazik-in-re-mazik-paeb-2018.