GAC Enterprises, Inc. v. Medaglia (In re Medaglia)

155 B.R. 316, 1993 Bankr. LEXIS 1622
CourtDistrict Court, E.D. New York
DecidedJune 23, 1993
DocketBankruptcy No. 891-85649-20; Adv. No. 892-8377-20
StatusPublished

This text of 155 B.R. 316 (GAC Enterprises, Inc. v. Medaglia (In re Medaglia)) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GAC Enterprises, Inc. v. Medaglia (In re Medaglia), 155 B.R. 316, 1993 Bankr. LEXIS 1622 (E.D.N.Y. 1993).

Opinion

DECISION AND ORDER

ROBERT JOHN HALL, Bankruptcy Judge.

PRELIMINARY STATEMENT

This matter comes before the Court upon a motion for summary judgment (“Motion”) by the defendant in the above-captioned adversary proceeding (“Adversary Proceeding”), and a cross-motion (“Cross-motion”) by the above-referenced plaintiffs (“Plaintiffs”, or “Creditors”).

The Court has jurisdiction over the Adversary Proceeding pursuant to sections 157(b)(1) and 1334 of title 28, United States Code (“title 28”). This is a core proceeding pursuant to section 157(b)(2)(A), (B), (I), (J) and (0) of title 28. The Motion was made pursuant to Federal Rule of Civil Procedure 56, made applicable herein by Rule 7056 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). The Cross-motion was filed pursuant to Bankruptcy Rule 4007(c).

For the reasons set forth below, the Defendant’s Motion for summary judgment is GRANTED and the Plaintiffs’ Cross-motion is DENIED. Accordingly, the Adversary Proceeding is DISMISSED.

[317]*317RELEVANT FACTS

The Debtor filed a petition for bankruptcy relief under chapter 7 of title 11, United States Code (“Bankruptcy Code” or “Code”) on or about December 18, 1991. Notice dated January 8, 1992 (“Notice”) of the commencement of the Debtor’s case was sent by the Clerk’s Office of the United States Bankruptcy Court for the Eastern District of New York to all creditors listed by the Debtor in his petition. The Notice informed these creditors that a meeting pursuant to section 341 of the Bankruptcy Code would be held on February 10, 1992. The Notice also stated that April 10, 1992 was scheduled as the last date to file a complaint objecting to discharge of the Debtor or to determine the dischargeability of certain debts (“Bar Date”).

Neither of the Plaintiffs received a copy of the Notice.

As to GAC Enterprises, Inc. (“GAC”), the Notice was not received because the address supplied by the Debtor was incorrect. This envelope was returned to the Court by the United States Postal Service. As to Albee Associates (“Albee”), the Notice was not received because Albee was not listed as a creditor by the Debtor in his petition, schedules or statement of financial affairs; hence, a copy of the Notice was not sent.

On or about February 13, 1992, Eugene Killian, Esq. (“Killian”) of Orloff, Lowen-bach, Stifelman, & Siegel, P.A., counsel for the Plaintiffs, sent a letter to the Debtor’s attorney, Roy J. Lester, Esq. (“Lester”). In full, Killian’s letter provides:

Dear Mr. Lester:
We are attorneys for Albee Associates and Metrobrook, Inc., which have filed a Complaint against Aldo Medaglia and others based upon violations of federal and state anti-racketeering and securities laws, and common law fraud. A copy of the Amended Complaint, dated September 14, 1990, is enclosed.
You have advised us that Mr. Medaglia has filed for Chapter 7 protection in the Eastern District of New York. We have not yet received a notice from the Court.
If Albee and GAC were' not listed as creditors on Mr. Medaglia’s schedules, they should have been, and I suggest that you amend the schedules to reflect them as creditors. Our position is that the claims of GAC and Albee against Mr. Medaglia are grounded in fraud and are therefore not dischargeable, and we intend to obtain a ruling from the Court on this issue; however, if Mr. Medaglia does not list GAC and Albee as creditors, then there is no question that the claims of GAC and Albee are not discharged.
Thank you for your anticipated cooperation.
Very truly yours,
ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A.
By s/ Eugene Killian
Eugene Killian

Eugene Killian Letter dated February 13, 1992.

Killian’s letter was dated 57 (fifty seven) days prior to the Bar Date.

One hundred and twenty five days after the Bar Date and 182 days after Killian’s letter, the Plaintiffs commenced the Adversary Proceeding by filing a complaint with the Court on August 13,1992. Pursuant to the Adversary Proceeding, the Plaintiffs seek to have their claims against the Debt- or declared non-dischargeable pursuant to section 523(a)(2) and (a)(6) of the Code. Section 523(a)(2) provides that a discharge of an individual does not operate as a discharge for a debt obtained through fraudulent representations and 523(a)(6) excepts from discharge debts for willful and malicious injury to the person or property of another entity. 11 U.S.C. § 523(a).

The Debtor, as defendant in the Adversary Proceeding, filed his Motion on September 28, 1992, seeking summary judgment as to all of the causes of action in the Complaint, attorneys’ fees pursuant to section 523(d) of the Code, and such other and further relief and the Court finds just and equitable. Essentially, Debtor’s Motion asserts that the Plaintiffs’ Adversary Proceeding was time-barred as of the Bar Date (April 10, 1992).

[318]*318By their Cross-motion filed on October 14, 1992, the Plaintiffs requested an order, with nunc pro tunc effect as of August 13, 1992, extending their time to file a dis-chargeability complaint pursuant to Bankruptcy Rule 4007(c).1 Both the Plaintiffs’ response to the Debtor's Motion and the Plaintiffs’ Cross-motion are premised upon their not having received the Notice from the Court.

DISCUSSION

The issue before the Court is whether the Plaintiffs’ Adversary Proceeding is time-barred in light of their non-receipt of the Notice sent by the Court, and their actual knowledge of the Debtor’s bankruptcy case.

The Bankruptcy Code expressly deals with the unlisted or unscheduled creditor holding a claim of the type held by the Plaintiffs at bar.2 Section 523 provides that a chapter 7 discharge does not discharge an individual debtor from any debt neither listed nor scheduled with the name of the creditor, if known to the debtor, in time to permit timely filing of a proof of claim and/or timely request for a determination of dischargeability of such debt, unless such creditor had notice or actual knowledge of the case in time for such timely filing and/or request. 11 U.S.C. § 523(a)(3) (emphasis added). Accordingly, a debt that is simply not listed or scheduled by a debtor will nevertheless be discharged if the “creditor had notice or actual knowledge of the case in time” to file a proof of claim, a dischargeability complaint, or a motion for an extension of time to file such complaint. Id.

The Bankruptcy Rules provide the time periods within which a complaint objecting to the discharge of a debtor or objecting to the discharge of a particular debt must be filed.

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155 B.R. 316, 1993 Bankr. LEXIS 1622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gac-enterprises-inc-v-medaglia-in-re-medaglia-nyed-1993.