Miller v. Schuchardt (In Re Miller)

159 B.R. 849, 1993 Bankr. LEXIS 1559, 1993 WL 440610
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedAugust 17, 1993
DocketBankruptcy No. 90-30378M, Adv. No. 92-3035
StatusPublished
Cited by2 cases

This text of 159 B.R. 849 (Miller v. Schuchardt (In Re Miller)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Schuchardt (In Re Miller), 159 B.R. 849, 1993 Bankr. LEXIS 1559, 1993 WL 440610 (Ark. 1993).

Opinion

MEMORANDUM OPINION

JAMES G. MIXON, Chief Judge.

On August 14, 1990, Charles Delano Miller and Linda Carol Miller (the debtors) filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code, and Warren E. Dupwe was appointed as trustee. The debtors’ schedules do not list Robert E. Schuchardt and Carl Schu-chardt (the Schuchardts) as creditors in the case. On May 2, 1991, the debtors were granted a discharge pursuant to 11 U.S.C. § 727 (1988). The trustee filed a report of no distribution on May 28, 1992.

On April 20, 1992, the debtors filed a motion to amend their schedules to add the Schuchardts, d/b/a Chetuck Family Bowl, as creditors with an unsecured claim of $37,082.80. The Schuchardts object to the motion. The debtors also filed an adversary proceeding on October 29, 1992, to determine the dischargeability of the debt owed to the Schuchardts.

The matter before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (I) (1988), and this Court has jurisdiction to enter a final order in this case. The following constitutes the Court’s findings of facts and conclusions of law pursuant to Fed.R.Bankr.P. 7052.

On July 2, 1984, Jonesboro Bowling Center, Inc., with the debtor acting as president, purchased a bowling alley business from the Schuchardts, d/b/a Chetuck Family Bowl. The purchase agreement provided that Jonesboro Bowling Center, Inc., would purchase all assets in connection with the business, and sublease equipment leases and a real estate lease agreement associated with the business. The debtors, along with others, personally guaranteed the purchase agreement.

Pursuant to the purchase agreement, Jonesboro Bowling Center, Inc., agreed to pay $151,166.40 to Mercantile Bank, in Jonesboro, Arkansas. This amount represented the balance the Schuchardts owed to Mercantile Bank on a promissory note dated January 11, 1982. Mercantile Bank required the Schuchardts to personally guarantee $50,000.00 of the debtors’ note before the transaction was approved.’ After defaulting on the note payments, the debtors filed bankruptcy.

The debtors’ schedules lists Mercantile Bank as a creditor, but do not list the Schuchardts, d/b/a Chetuck Family Bowl. Scheduled creditors were notified of the bankruptcy case and of the first meeting of creditors to be held on October 12, 1990. The deadline to file complaints in the bankruptcy case was set for December 11, 1990. Creditors were informed not to file claims unless notified to do so since no assets were available for distribution. After the debtors received their discharge, the Schu-chardts filed suit against the debtors in the Circuit Court of Craighead County, Arkansas. The debtors now seek to add the Schuchardts, d/b/a Chetuck Family Bowl, *851 as unsecured creditors and to discharge the Schuchardts’ claim.

I

DISCUSSION

A

Section 727(b) of the Bankruptcy Code states in part, “[e]xcept as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter.” 11 U.S.C. § 727(b) (1988). Unless § 523 provides otherwise, all prepetition debts are discharged under § 727, whether listed on the schedules or not. Beezley v. California Land Title Co. (In re Beezley), 994 F.2d 1433 (9th Cir.1993); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). See also In re Stecklow, 144 B.R. 314 (Bankr.D.Md.1992); In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992).

The Schuchardts contend that their claim is nondischargeable pursuant to 11 U.S.C. § 523(a)(3)(A) (1988 & Supp.1992). That section provides as follows:

(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—
[[Image here]]
(3) neither listed nor scheduled under section 521(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_

11 U.S.C. § 523(a)(3)(A) (1988 & Supp.1992).

Generally, a proof of claim must be filed within 90 days after the first date set for the meeting of creditors. Fed. R.Bankr.P. 3002(e). In a case involving no assets, creditors may be notified that it is unnecessary to file proofs of claim. Fed. R.Bankr.P. 2002(e). If creditors are so notified, they must be informed of any subsequent discovery of non-exempt assets from which a dividend may be paid. Creditors may then file proofs of claim within 90 days of notification of available assets. Fed.R.Bankr.P. 3002(c)(5); In re Thompson, 152 B.R. 24, 27 (E.D.N.Y.1993). Since a deadline for filing proofs of claim is never set in a no-asset case, an unscheduled creditor is not deprived of the opportunity to file a proof of. claim within the meaning of 11 U.S.C. § 523(a)(3)(A). Beezley v. California Land Title Co. (In re Beezley), 994 F.2d 1433 (9th Cir.1993); Soult v. Maddox (In re Soult), 894 F.2d 815 (6th Cir.1990); Rosinski v. Boyd (In re Rosinski), 759 F.2d 539 (6th Cir.1985); Stark v. St. Mary’s Hosp. (In re Stark), 717 F.2d 322 (7th Cir.1983); In re Thompson, 152 B.R. 24 (E.D.N.Y.1993); American Credit Serv., Inc. v. Tucker (In re Tucker), 143 B.R. 330 (Bankr.W.D.N.Y.1992); Peacock v. State Farm Mut. Auto. Ins. Co. (In re Peacock), 139 B.R. 421 (Bankr.E.D.Mich.1992). 2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McMahon v. Harmon (In Re Harmon)
213 B.R. 805 (D. Maryland, 1997)
In re Ennis
178 B.R. 177 (W.D. Missouri, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
159 B.R. 849, 1993 Bankr. LEXIS 1559, 1993 WL 440610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-schuchardt-in-re-miller-areb-1993.