In re Steward

509 B.R. 123, 2014 WL 1356558, 2014 Bankr. LEXIS 1610
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedApril 4, 2014
DocketNo. HG 12-08814
StatusPublished
Cited by3 cases

This text of 509 B.R. 123 (In re Steward) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Steward, 509 B.R. 123, 2014 WL 1356558, 2014 Bankr. LEXIS 1610 (Mich. 2014).

Opinion

MEMORANDUM OF DECISION AND ORDER

SCOTT W. DALES, Chief Judge.

Chapter 7 debtors, Matthew and Jennifer Steward (the “Debtors”) filed a motion to reopen their bankruptcy case (the “Motion,” DN 17) to include creditors that they claim were inadvertently omitted from their original schedules. The court closed the case on April 22, 2013, after the chapter 7 trustee filed a report of no distribution and after the court entered a discharge under § 727.1 The Cincinnati Insurance Company (“CIC”), as subrogee of Mrs. Steward’s former employer, Erwin Quarder, Inc. (“Quarder”), opposes the Motion as unnecessary. The court held a hearing on April 2, 2014, in Grand Rapids, Michigan, to consider the Motion. After oral argument from counsel, the court took the Motion under advisement. For the following reasons, the court will grant the Motion.

By way of background, prior to filing for relief under the Bankruptcy Code, Mrs. Steward pled guilty in state court to em[125]*125bezzling funds from Quarder. As her counsel explained during the April 2, 2014 hearing, Quarder waived any claim to restitution during the criminal case in an agreement that preserved the right of Quarder’s then-unnamed insurance carrier to assert a claim against her, presumably in the nature of subrogation. Whether by mistake or design, the Debtors failed to list Quarder or CIC on their schedules filed on October 2, 2012. About a month later, the chapter 7 trustee conducted and concluded the creditors’ meeting, filing a report of no distribution on November 8, 2012. On February 28, 2013, the court entered the discharge order and, on April 22, 2013, the Clerk entered the final decree, closing the Debtors’ bankruptcy case. On October 15, 2013, CIC, as subrogee of Quarder, sued the Debtors in the Kent County Circuit Court, alleging theft, embezzlement and common law conversion against Mrs. Steward, and statutory conversion under M.C.L. § 600.2919a against both Debtors. See Objection and Brief in Opposition to Debtors’ Motion to Reopen Bankruptcy to Add “Unknown Creditor” (the “Objection,” DN 20) at Exh. D (Complaint filed in Kent County Circuit Court, Case No. 13-09891-CB).

Under § 350(b), “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). Here, the Debtors move to reopen the ease in order to seek relief from CIC’s state court lawsuit, relying largely on the Sixth Circuit’s opinion in Zirnhelt v. Madaj (In re Madaj), 149 F.3d 467 (6th Cir.1998). Under Madaj, in a “no asset case” like the Debtors’, the claims of most omitted creditors are discharged, notwithstanding § 523(a)(3), because creditors in a no asset case receive no distribution anyway. The conclusion that a creditor’s claim may be discharged even if a creditor does not get notice of the bankruptcy may seem counter-intuitive,2 or contrary to notions of due process,3 but it stems from the Sixth Circuit’s careful parsing of § 523(a)(3) which provides, in relevant part, as follows:

(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—
(3) neither listed nor scheduled under 521(a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit—
(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request....

[126]*12611 U.S.C. § 523(a)(3). When the omitted creditor holds an ordinary unsecured claim not “of a kind” described in § 523(a)(2), (4), or (6), the application of § 523(c) is straightforward: “the moment the creditor receives notice or knowledge of the bankruptcy case, § 523(a)(3)(A) ceases to provide the basis for an exception from discharge.” Madaj, 149 F.3d at 470. In no-asset cases involving ordinary claims, the court routinely issues its so-called “Madaj Order” to assist debtors and creditors in understanding the consequences of the omission from the schedules.

Where, however, the claims of the omitted creditors are arguably claims of the kind described in § 523(a)(2), (4), or (6), the analysis becomes more circular.4 Under § 523(c), only the federal courts have authority to declare a debt excepted from discharge under § 523(a)(2), (4), or (6):

(c)(1) Except as provided in subsection (a)(3)(B) of this section, the debtor shall be discharged from a debt of a kind specified in paragraph (2), (4), or (6) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), or (6), as the case may be, of subsection (a) of this section.

11 U.S.C. § 523(c) (emphasis added). Interpreting “the court” to refer to the bankruptcy court in which the debtor’s case is pending prompted the federal courts to conclude that Congress bestowed on the federal forum the exclusive authority to determine whether a debt is discharged under § 523(a)(2), (4), or (6). See Dollar Corp. v. Zebedee (In re Dollar Corp.), 25 F.3d 1320, 1325 (6th Cir.1994). Unless a creditor timely files a request to except a debt of this land from discharge in the bankruptcy court, the debt will be discharged.

As the statutory text expressly notes, however, the exclusivity inherent in § 523(c) is subject to an important exception, namely the provisions of § 523(a)(3)(B) — for debts “of a kind specified in paragraph (2), (4), or (6) of subsection (a)” held by omitted creditors. In other words, although the federal court has exclusive authority to except a debt from discharge under those Code sections, it shares authority with the state courts to determine whether a debt is excepted from discharge under § 523(a)(3)(B), even if this means a state court has to decide whether the debt falls within § 523(a)(2), (4), or (6). Indeed, the Michigan Court of Appeals so held in the First Source Bank case noted above, albeit in a manner at odds with the Sixth Circuit’s interpretation of the statute. See First Place Bank v. Casino Concepts by Design, Inc., No. 30683, 2013 WL 331572 (Mich.App. Jan. 29, 2013).

The applicable provisions of title 28 confirm the concurrent authority of the [127]*127state courts5 to hear proceedings related to bankruptcy cases.

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Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 123, 2014 WL 1356558, 2014 Bankr. LEXIS 1610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-steward-miwb-2014.