Fasson v. Magouirk (In re Magouirk)

693 F.2d 948
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 2, 1982
DocketNo. 82-5137
StatusPublished
Cited by14 cases

This text of 693 F.2d 948 (Fasson v. Magouirk (In re Magouirk)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fasson v. Magouirk (In re Magouirk), 693 F.2d 948 (9th Cir. 1982).

Opinion

HUG, Circuit Judge:

In this bankruptcy action, we are required to define the standard to be applied by the bankruptcy court in considering a motion for leave to file untimely objections to the discharge of an individual debt. We hold that the bankruptcy court erred in applying a strict construction of the term “excusable neglect,” and remand for reconsideration of the motion under the proper standard.

In April 1980, James and Katharine Ma-gouirk filed a voluntary petition for bankruptcy. They listed among their liabilities an unsecured debt to the Fasson Corporation for $87,644.47. Fasson was scheduled by the bankruptcy court as a creditor, and subsequently received a notice fixing the dates of discharge proceedings. The notice specified that the last day for the filing of complaints to determine dischargeability of individual debts was July 16,1980, and that August 13, 1980 was the last day for filing objections to general discharge. Fasson’s counsel misread or misrecorded the notice; she assumed August 13 was the last day to file the complaint. Fasson’s compláint, filed August 11, was dismissed as untimely on August 15.

Fasson then sought permission to file its complaint late. It claimed the delay in filing was due to the excusable neglect of its counsel. After hearings on the motion, the bankruptcy judge concluded that the failure to file the complaint in compliance with the schedule was not the product of excusable neglect. He denied with prejudice the motion to permit a late filing of the complaint. On September 30, 1980, he granted discharge of the Magouirks’ debts.

Fasson appealed to the bankruptcy appellate panel. The panel concluded that although “another court might look upon [counsel’s] mistake with greater liberality than did the trial court in this case,” the [950]*950denial was not an abuse of discretion. Fas-son appeals the panel’s decision.1

The grant or denial of discharge is governed by Bankruptcy Rule 404. See also Rule 409 and Advisory Committee’s Note to Rule 409. Rule 404(c) provides that: “The court may for cause, on its own initiative or an application of any party in interest, extend the time for filing a complaint objecting to discharge.” The grant of an extension of time to file a complaint is within the “ample discretion” of the bankruptcy judge. Jackson v. Menick, 271 F.2d 806, 808 (9th Cir.1959); see In re Semel, 427 F.2d 651, 653 (3d Cir.1970). That discretion must, however, be exercised under the appropriate legal standard. See Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 648 (9th Cir.1980); Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir.1975). Fasson contends that the bankruptcy judge erred in concluding that he was required to consider its motion under the strict construction of “excusable neglect,” the standard applied when a notice of appeal has not been filed within the prescribed time.

The procedure for granting an extension in a Rule 404 proceeding is set out in Rule 906. See Matter of Capshaw, 611 F.2d 55, 56 (4th Cir.1979) (applying Rule 906(b)(2) to discharge proceeding); Matter of Heyward, 15 B.R. 629, 635 (Bkrtcy.E.D.N.Y.1981) (same); In re Klayer, 13 B.R. 542, 544 (Bkrtcy.W.D.Ky.1981) (same). Rule 906(b) provides:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... upon application made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . .

This case turns on interpretation of this provision, and specifically of its “excusable neglect” standard. The bankruptcy judge and the reviewing panel agreed that “excusable neglect” is subject to differing interpretations, depending upon the procedural context in which it appears.

In Bankruptcy Rule 802, which governs the time for filing a notice of appeal, “excusable neglect” is used as follows:

A request to extend the time for filing a notice of appeal must be made before such time has expired, except that a request made after the expiration of such time may be granted upon a showing of excusable neglect ....

In this context, “excusable neglect” is very strictly construed. It requires (1) a finding that the party failed to learn of the entry of judgment, or (2) a finding of extraordinary circumstances, where excusing the delay is necessary to avoid an injustice. Matter of Estate of Butler’s Tire & Battery Co., 592 F.2d 1028, 1034 (9th Cir.1979).

An “excusable neglect” standard is also applied under Bankruptcy Rule 924,2 which incorporates Fed.R.Civ.P. 60(b).3 [951]*951Under Rule 60(b), “excusable neglect” is liberally construed, especially in those instances where the order or judgment forecloses trial on the merits of a claim. Schwab v. Bullock’s, Inc., 508 F.2d 353, 355 (9th Cir.1974); Patapoff v. Vollstedt’s, Inc., 267 F.2d 863, 865 (9th Cir.1959). Unlike a request for appellate review under Bankruptcy Rule 802 or Fed.R.App.P. 4(a), a court reviewing a Rule 60(b) motion may consider the merits of the untested claim and determine whether setting aside the order will prejudice the other party. Schwab, 508 F.2d at 355; Provident Security Life Insurance Co. v. Gorsuch, 323 F.2d 839, 842-43 (9th Cir.1963), cert. denied, 376 U.S. 950, 84 S.Ct. 966, 11 L.Ed.2d 970 (1964).

The bankruptcy judge considered these conflicting interpretations of “excusable neglect.” He concluded that procedurally Fasson’s motion was similar to an appeal, in that it sought reconsideration of the dismissal of its complaint. Because of this analogy, the judge felt compelled to apply the strict interpretation of “excusable neglect” required by Bankruptcy Rule 802. Therefore he did not consider the prejudice to Fasson, the relative lack of prejudice to the Magouirks, or the merits of the underlying claim.

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693 F.2d 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fasson-v-magouirk-in-re-magouirk-ca9-1982.