Manufacturers Hanover v. Dewalt (In Re Dewalt)

107 B.R. 719, 1989 Bankr. LEXIS 2176, 1989 WL 151278
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedDecember 15, 1989
DocketBAP No. SC 88-1795-AsPR, Bankruptcy No. 87-5435-H7, Adv. No. C88-0123-H7
StatusPublished
Cited by11 cases

This text of 107 B.R. 719 (Manufacturers Hanover v. Dewalt (In Re Dewalt)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel 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
Manufacturers Hanover v. Dewalt (In Re Dewalt), 107 B.R. 719, 1989 Bankr. LEXIS 2176, 1989 WL 151278 (bap9 1989).

Opinions

OPINION

ASHLAND, Bankruptcy Judge:

Finance One appeals the bankruptcy court’s judgment dismissing its discharge-ability complaint as late filed. We affirm.

FACTS

Dewalt, the debtor, filed a petition for relief under Chapter 7 on July 28, 1987. Following the meeting of creditors, a claims bar date of November 2, 1987 was set for filing of complaints seeking a determination of nondischargeability under § 523. Dewalt did not list Finance One as a creditor as required by § 521(1). Instead Finance One was listed on the debtor’s notice of intent under § 521(2) in the amount of $4,065.81. Consequently, Finance One was not given notice of Dewait’s bankruptcy by the court.

Subsequent to the bankruptcy, Finance One filed a state court action against De-walt, and on October 21, 1987 requested a default judgment. Five days later on October 26, 1987, Dewait’s attorney contacted Finance One’s attorney and informed him that Dewalt had filed bankruptcy on July 28,1987, and requested that the state court matter be dismissed. Between October 26, 1987 and November 2, 1987, the bar date for filing dischargeability complaints, Finance One did not file a complaint or seek an extension of time in which to do so.

Finance One filed a complaint to determine dischargeability under § 523(a)(2)(A) on March 21, 1988, almost five months after receiving actual notice of Dewait’s bankruptcy. Dewalt brought a motion to dismiss the complaint for lack of jurisdiction because it was untimely filed. The bankruptcy court granted Dewait’s motion and Finance One timely appealed.

ISSUE

Whether Finance One had actual knowledge of Dewait’s bankruptcy in time to permit the filing of a complaint to determine dischargeability pursuant to § 523(a)(3)(B).

STANDARD OF REVIEW

Whether Finance One received sufficient notice to file a complaint to determine dis-chargeability is a question of law requiring interpretation of a statute, and is therefore reviewed independently. In re Price, 871 F.2d 97, 98 (9th Cir.1989).

DISCUSSION

Section 523(a)(3)(B) provides:

(a) A discharge under section 727, ... does not discharge an individual debtor from any debt—
(3) neither listed nor scheduled under section 521(1) ... in time to permit—
(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;

11 U.S.C. § 523(a)(3)(B).

Finance One’s complaint for discharge-ability alleged a cause of action under § 523(a)(2)(A). Section 523(a)(3)(B) requires that a debt of the kind specified in § 523(a)(2), must be listed or scheduled in time to permit the filing of a complaint to determine dischargeability of the debt. In this case, it is undisputed that the bar date was November 2, 1987 and that Finance One was not properly scheduled as a creditor under § 521(1) until November 25, 1987.

However, § 523(a)(3)(B) contains an exception for creditors that had notice or actual knowledge of the case in time to timely file a complaint for dischargeability. 11 U.S.C. § 523(a)(3)(B); In re Price, 79 B.R. 888, 890 (9th Cir. BAP 1987), aff'd 871 F.2d 97 (9th Cir.1989). It is uncontroverted that Dewait’s attorney contacted the attorneys for Finance One on October 26, 1987, seven calendar days and five court days before the claims bar date. At this time, Dewait’s attorney informed Finance One [721]*721that Mrs. Dewalt had filed bankruptcy on July 28, 1987.

In Price this court held that for purposes of § 523(a)(3)(B), notice to a creditor’s attorney of the bankruptcy proceeding is sufficient to constitute notice to the creditor if the creditor’s attorney received the notice while representing his client in enforcing the claim against the debtor. Price, 79 B.R. at 889-90. The attorneys for Finance One were in state court pursuing the very claim for which the dischargeability complaint was filed when they received notice from Dewait’s attorney. As a result, the telephone call to the Finance One attorneys was sufficient to give notice of Dewait’s bankruptcy. An unscheduled creditor with actual notice of the bankruptcy has the burden to inquire as to the bar date for filing a nondischargeability complaint. In re Alton, 64 B.R. 221, 224 (Bankr.M.D.Fla.1986), aff'd 837 F.2d 457 (11th Cir.1988); see In re Gregory, 705 F.2d 1118, 1123 (9th Cir.1983); Price, 79 B.R. at 890.

Since Finance One received notice of De-walt’s bankruptcy prior to the bankruptcy case and did not act to protect its claim, the only question remaining is whether Finance One had sufficient time to act, in order to protect its interests. Finance One argues that seven days was too short a time in which to review the facts surrounding the obligation and alleged wrongdoing of the debtor. Finance One contends that the shortened time did not allow time for consultation with its attorneys, obtaining of documentary evidence, investigation of the merits of the case, filing of the complaint itself, and conducting settlement discussions and other “pre-complaint inter-party communications.”

The bankruptcy court, contrary to Finance One’s contention did not hold that notice at any time before the bar date is sufficient to exempt a creditor from the protection afforded under § 523(a)(3)(B). The bankruptcy court specifically found that seven days was sufficient time for Finance One to protect its claim by either filing a complaint or by seeking an extension of time. The bankruptcy court inquired as to why Finance One did not either check the bankruptcy file to establish the claims bar date or seek an ex parte application to extend time for filing a complaint. No explanation, other than the lack of formal notice, was given for Finance One’s failure to act to protect its claim.

In order to determine whether Finance One could have timely filed a complaint to determine dischargeability, it is necessary to analyze the interrelationship between § 523(a)(3)(B), (c) and Bankruptcy Rule 4007. Finance One’s complaint to determine dischargeability was based on § 523(a)(2). Section 523(c) provides that § 523(a)(2) debts will be discharged unless, on request of the creditor, the court determines the debt is to be excepted from discharge. 11 U.S.C. § 523(c). It is the creditors duty to request a determination of nondischargeability. Id.

Bankruptcy Rule 4007 which governs the timeliness of § 523(c) complaints provides:

(e) ...

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107 B.R. 719, 1989 Bankr. LEXIS 2176, 1989 WL 151278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manufacturers-hanover-v-dewalt-in-re-dewalt-bap9-1989.