Citibank (South Dakota), N.A. v. Dishman (In re Dishman)

257 B.R. 780, 45 Collier Bankr. Cas. 2d 1009, 2000 Bankr. LEXIS 1660
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedDecember 12, 2000
DocketBankruptcy No. 99-37332-T; Adversary No. 00-3012-T
StatusPublished
Cited by1 cases

This text of 257 B.R. 780 (Citibank (South Dakota), N.A. v. Dishman (In re Dishman)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citibank (South Dakota), N.A. v. Dishman (In re Dishman), 257 B.R. 780, 45 Collier Bankr. Cas. 2d 1009, 2000 Bankr. LEXIS 1660 (Va. 2000).

Opinion

MEMORANDUM OPINION

DOUGLAS O. TICE, Jr., Chief Judge.

Hearing was held August 9, 2000, on Citibank (South Dakota) N.A.’s motion to enlarge time to file a complaint objecting to discharge and debtor’s motion to dismiss Citibank’s complaint that was untimely filed. At conclusion of hearing, the court took both matters under advisement.

For reasons stated in this opinion, Citibank’s motion will be denied and its complaint dismissed.

I. Facts and Procedural History.

On February 2, 2000, Citibank filed the complaint to except a debt from discharge1 two days after the January 31, 2000, filing deadline. Citibank’s complaint was based upon debtor’s alleged false representations, false pretenses and/or actual fraud under 11 U.S.C. § 523(a)(2), associated with her use of a Citibank credit card. Debtor filed a motion to dismiss Citibank’s complaint based upon the untimely filing of the complaint. Citibank’s response to debtor’s motion to dismiss was a motion for the court to enlarge time to answer. In support of this request, Citibank cited hazardous weather conditions and delayed delivery by the U.S. mail of the complaint.

II Statutory Discussion and Analysis.

A. Bankruptcy Code and Rules.

Bankruptcy Code § 727(b) states that a discharge granted by the court under § 727(a) “... discharges the debtor from all debts that arose before the date of the order for relief under this chapter.... ” Section 727(b) notes, however, that this general discharge is subject to exceptions pursuant to § 523. Section 523 states, in part:

[782]*782A discharge under section 727 ... does not discharge an individual debtor from any debt — for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.]

11 U.S.C. § 523(a)(2)(A).

Citibank’s complaint is based upon debt- or’s allegedly fraudulent use of a Citibank credit card during the two-month period of July 6, through September 8,1999.

In order to make a successful case for determination of the dischargeability of a debt under § 523, a creditor must follow the process outlined in Federal Rule of Bankruptcy Procedure 4007(c), which provides as follows:

A complaint to determine the dischax-ge-ability of a debt under § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a).... On motion of a party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be filed before the time has expired.

Fed.R.Bankr.Proc. 4007(c) (emphasis added).

Rule 4007(c)’s deadline for filing a complaint or motion must be interpreted with the aid of Rule 9006, which governs the computation of time.

Here, Rule 9006’s subsections (b)(1) and (b)(3) are applicable. Rule 9006(b)(1) governs enlargement of time on a “general” basis and requires a pleading and showing of “excusable neglect” if the motion to enlarge is not made before the expiration of the specified period. Rule 9006(b)(3), on the other hand, permits the court to grant a “limited” enlargement of time for taking action under Rule 4007(c), “only to the extent and under the conditions stated in ... [that] rule[ ].” Rule 9006(b)(3) explicitly applies to and cross-references Rule 4007(c), which applies in chapter 7 cases such as this one, when a complaint like Citibank’s is filed to determine dis-chargeability of debt.

At hearing, Citibank’s counsel argued that although the enlargement motion cited 9006(b)(1), Citibank was actually pleading general equitable principles and requesting judicial notice of the hazardous weather conditions surrounding the filing deadline. Counsel continued to explain that Citibank’s argument rested in the policies of the equitable powers of the court and its discretion, rather than in an assertion of a statutory “excusable neglect” argument. (Plaintiff, Citibank’s Response to Debtor’s Opposition to Complaint, p. 2). Furthermore, in pleadings, counsel for Citibank proffered reasonable and “good faith” conduct on the part of the bank as additional bases for its request that the court permit the untimely filing. (Plaintiff, Citibank’s Response to Debtor’s Opposition to Complaint, p. 2). In response to Citibank’s argument narrowing the authority for its requests, the court will not rely upon the “excusable neglect” provisions of Rule 9006(b)(1); rather, the court will look to Rule 9006(b)(3).

B. Case law and Secondary Authority.

Recent case law supports the view that no equitable power nor broad means of judicial discretion exists to depart from Rule 9006(b)(3)’s mandate of compliance with specific deadlines. See In re Coastal Alaska Lines, Inc., 920 F.2d 1428 (9th Cir.1990) (highlighting that it was error for a bankruptcy court to purport to exercise its equitable discretion to extend the time within which a proof of claim might be filed in the absence of the specific controlling rule setting forth a basis for the extension). In addition, the 1983 Advisory Committee Note to Rule 9006 states a similar proposition concerning the lack of discretion afforded courts:

Many rules which establish a time for doing an act also contain a specific authorization and standard for granting an extension of time, and, in some cases, [783]*783limit the length of the extension.... Unless a rule which contains a specific authorization to extend time is listed in paragraph [9006(b)](3) of this subdivision, an extension of time may be granted under paragraph [9006(b)](l) of this subdivision. If a rule is included in paragraph [9006(b)](3) an extension may not be granted under paragraph [9006(b)] (1).

Collier on Bankruptcy, ¶ 9006.08 — 9[1] (Lawrence P. King ed., 15th ed., rev.2000) (emphasis added).

In a discussion of Rule 9006(b)(3), Collier on Bankruptcy states that one should look to the underlying particular rule to determine if an enlargement of time is appropriate, as opposed to generally consulting Rule 9006, at large. See 10 Collier on Bankruptcy, ¶ 9006.08. Under Collier’s suggested analysis, the specific rule applicable in this instance, Rule 4007(c), mentions that extensions are possible upon motion and a showing of “cause,” but that the “motion shall be filed before the time has expired.” Id. Rule 9006(b)(3) affirms this mandatory premise that extension motions must be filed before the termination of the underlying time limitation, by stating that, “[t]he court may enlarge the time for taking action under ... 4007(c) only to the extent and under the conditions stated in ... [the] rule[ ].”

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257 B.R. 780, 45 Collier Bankr. Cas. 2d 1009, 2000 Bankr. LEXIS 1660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citibank-south-dakota-na-v-dishman-in-re-dishman-vaeb-2000.