In re Taylor

237 B.R. 199, 12 Fla. L. Weekly Fed. B 327, 1998 Bankr. LEXIS 1878, 1998 WL 1107790
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedOctober 29, 1998
DocketBankruptcy No. 94-03900-6J7
StatusPublished

This text of 237 B.R. 199 (In re Taylor) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Taylor, 237 B.R. 199, 12 Fla. L. Weekly Fed. B 327, 1998 Bankr. LEXIS 1878, 1998 WL 1107790 (Fla. 1998).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON AMENDED MOTION FOR REHEARING

KAREN S. JENNEMANN, Bankruptcy Judge.

This case came on for hearing on September 29, 1998, on the creditor’s, First Bank of Coastal Georgia’s (the “Movant”), Amended Motion for Rehearing (the “Motion”) (Doc. No. 28). On June 24, 1998, David Taylor (“Taylor”) and Barbara Ann Taylor (collectively, the “Debtors”) filed a Motion to Reopen their Chapter 7 case for the purpose of amending their schedules to add the Movant as a creditor and discharge the claim (Doc. No. 19). On August 17, 1998, an Order Conditionally Granting Motion to Reopen Case was entered (the “Order”) (Doc. No. 24). In the Motion, the Movant seeks reconsideration of the Order which permitted this case to be reopened. Based on the pleadings and the evidence and considering the demean- or of the witnesses, the Motion is granted.

Motion to Reopen Case. During the late 1980’s and early 1990’s Taylor and a gentleman named Gerald Stuart (“Stuart”) were partners in a business venture which purchased approximately 30 units of real property in Savannah, Georgia. In order to finance these land purchases, Taylor executed several promissory notes and was personally liable for these debts. One of these land purchases was related to the promissory note at issue in this case which was originally issued by SunTrust Bank, N.A. for $22,203.59 (the “Note”) and signed by Taylor.

When Taylor moved from Savannah in 1990, Stuart assumed full responsibility for leasing the various properties. Because Taylor was no longer actively participating in the business venture, he relinquished his interest in the properties to Stuart who, in exchange, agreed to refinance the debt encumbering the property so that Taylor was no longer personally liable. Taylor transferred title to all of the properties to Stuart by quitclaim deed in April, 1992. Taylor assumed that Stuart had refinanced the underlying debts, and he had no further personal liability. However, Taylor never verified his assumption.

On July 28, 1994, the Debtors filed a liquidating bankruptcy under Chapter 7 of the Bankruptcy Code.1 No debts associated with the Savannah properties were listed. The Chapter 7 case was a no-asset case. No distribution was made from the estate. On December 20, 1994, the Debtors received a discharge (Doc. No. 16), and, on January 12, 1995, the case was closed (Doc. No. 17).

Three years later, in April, 1998, the Movant purchased the Note from Sun-Trust. Payments under the Note were delinquent, and the Movant started a state lawsuit against Taylor to collect the balance due of approximately $10,000. In response to the Movant’s collection actions, Debtors filed their Motion to Reopen Case in order to amend their schedules in the Chapter 7 case to include the Movant as a creditor (Doc. No. 19). At the evidentiary hearing on the Motion to Reopen, held August 4, 1998, Taylor testified that, after he quitclaimed the Savannah property to Stuart in 1992, he believed that the entire debt was refinanced and that he was no [201]*201longer liable on any of the notes, including the Note at question here. He also testified that he did not become aware of his liability on the Note until the Movant notified him in May, 1998. Based on this evidence, the Court granted the Debtors’ Motion to Reopen.

Movant then filed the current Motion contending that reopening the case was not appropriate due to the prejudice which would result to the Movant. At the hearing on the Motion, the Movant established that the Debtors did in fact know that Taylor was liable on the Note as early as December, 1997, four months before the Movant purchased the Note. Specifically, in December, 1997, SunTrust Bank, the holder of the Note at that time, informed the Debtors that the loan was in default. The Debtors then paid SunTrust Bank $1261.24 to bring the loan current.2 Mov-ant’s Exh. 1. Movant also submitted evidence that at the time Movant purchased the Note, they were not aware of any delinquencies in payment.

Based on this new evidence, Movant argues that the Court erred in reopening the case. Movant argues that Debtors may not reopen their case to add an omitted creditor if the creditor would be prejudiced. Furthermore, the Movant argues that the Court’s prior finding that any prejudice suffered by the Movant was due to the Movant’s own actions was not supported by the evidence.

Standard for Reopening Case to Add Omitted Creditor. Section 350 of the Bankruptcy Code provides that the court may reopen a case based on equitable principles in order to “administer assets, to accord relief to the debtor or for other cause.” A debtor will be allowed to reopen his/her case to schedule an omitted creditor as long as (i) the failure to schedule the creditor was the result of an honest mistake and not fraud or intentional design, and (ii) the creditor is not prejudiced by the reopening. Samuel v. Baitcher (In Matter of Baitcher), 781 F.2d 1529, 1534 (11th Cir.1986); Rosinski v. Boyd (In re Rosinski), 759 F.2d 539, 541 (6th Cir.1985).

Honest Mistake by Debtors. Taylor testified at both hearings that he believed all the debts relating to the Savannah properties were refinanced in 1992. Prior to filing bankruptcy, the Debtors were not aware of his continuing liability on the Note. Clearly, the Debtors were not aware that the debt on the Note existed prior to filing their bankruptcy and receiving a discharge in 1994. As such, the Debtors exhibited no intentional design or fraudulent effort in omitting the Movant from their schedules. Therefore, under the test articulated by the Eleventh Circuit Court of Appeals in Baitcher, the Debtors are entitled to reopen this case to add the omitted creditor as long as the creditor is not prejudiced.

Movant Will Suffer Prejudice. The Movant contends, however, that reopening the case will result in prejudice to them. The Movant argues that it bought the Note without knowledge of the Debtors’ bankruptcy. Allowing the Debtors to reopen this case and add the Movant as a creditor in their schedules would mean that any monies the Movant paid to buy the Note from SunTrust or to pursue collection actions against Taylor is not recoverable and is lost.

Therefore, the issue is whether the Mov-ant has suffered prejudice sufficient to warrant denying the Debtors’ Motion to Reopen. Traditionally, bankruptcy courts have held that prejudice to the creditor sufficient to prevent the reopening of the debtor’s case only exists when the creditor has lost the right to receive a dividend or to obtain a determination of dischargeability in connection with the bankruptcy case. Rosinski, 759 F.2d at 542; In re Berry, 190 B.R. 486, 488 (Bankr.S.D.Ga.1995); [202]*202Soult v. Maddox (In re Soult), 894 F.2d 815 (6th Cir.1990).

Recently, however, a majority of courts have expanded the definition of prejudice to include costs and fees expended by the creditor before the creditor became aware of the bankruptcy. See, e.g. La Bate & Conti, Inc. v. Davidson (In Matter of Davidson), 36 B.R.

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Bluebook (online)
237 B.R. 199, 12 Fla. L. Weekly Fed. B 327, 1998 Bankr. LEXIS 1878, 1998 WL 1107790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-taylor-flmb-1998.