Dischargeability Time For Filing

DISCHARGEABILITY – Time for filing Nondischargeability Actions

Kontrick v. Ryan, 124 S.Ct. 906 (2004)

Rule 4004(a) time limit is not jurisdictional, and may be waived by the debtor. Debtor

might have raised the issue in his amended answer, or perhaps even at any time up to the time of

trial, but failed to do so. Court does not decide whether the time limit might be softened on

equitable grounds.

In re Staffer, 306 F.3d 967 (9th Cir.2002)

Under Bankruptcy Rule 4007(b), a non- § 523(c) dischargeability complaint can be

brought at any time (except where laches is found). The case need not be reopened to bring a

complaint.

In re Bryan, 261 B.R. 240 (9th Cir. B.A.P. 2001)

Genuine issue of material fact existed as to when complaint was submitted to bankruptcy

court for filing. Court had a drop box system whereby anything left in the box “would be timestamped

with that day’s date.”

In re Williams, 185 B.R. 598 (9th Cir. B.A.P. 1995)

Some objective evidence is required to rebut mailbox presumption (clerk’s declaration,

mail stamped, etc.)

In re De la Cruz, 176 B.R. 19 (9th Cir. B.A.P. 1994)

Creditor’s complaint to determine dischargeability of claim untimely despite her

attorney’s statement that he did not receive notice of meeting of creditors. Mailbox rule -

excusable neglect does not apply under 4007(c).

In re Santiago, 175 B.R. 48 (9th Cir. B.A.P. 1994)

No time limit on filing action to determine dischargeability of unscheduled debt when

creditor does not receive notice of proceedings.

In re Halstead, 158 B.R. 485 (9th Cir. B.A.P. 1993), aff’d, 53 F.3d 253 (9th Cir. 1995)

Creditors who relied on filing-bar date stated in bankruptcy court’s second notice

extending complaint were entitled to equitable relief after notice was vacated. Must have at least

30 days to meet time limit.

In re Gordon, 988 F.2d 1000 (9th Cir. 1993)

Sixty day period runs from date first set for First Meeting of Creditors, not from date it is

actually held.

In re Kennerley, 995 F.2d 145 (9th Cir. 1993)

Filing motion for relief is not the same as a complaint objecting to dischargeability or

request for extension.

In re Marino, 37 F.3d 1354 (9th Cir. 1994)

126

Objection to sale does not constitute substantial compliance with time limits for filing §

523 complaint.

In re Dewalt, 961 F.2d 848 (9th Cir. 1992)

Dismissal of creditor’s dischargeability complaint improper where notice of bankruptcy

received only seven days before claim deadline bar.

In re Anwiler, 115 B.R. 661 (9th Cir. B.A.P. 1990), aff’d, 958 F.2d 925 (9th Cir. 1992), cert.

denied, Anwiler v. Patchett, 506 U.S. 882 (1992)

“Unique circumstances” doctrine justified allowance of late filed dischargeability

complaint. (Two notices, one in original court and one in second court.)

In re Albert, 113 B.R. 617 (9th Cir. B.A.P. 1990)

Multiple extensions of filing period okay.

In re Gunn, 111 B.R. 291 (9th Cir. B.A.P. 1990)

Amended creditor’s complaint may relate back to original filing if no prejudice to debtor.

In re Bucknum, 105 B.R. 25 (9th Cir. B.A.P. 1989), aff’d, 951 F.2d 204 (9th Cir. 1991)

Scheduled creditor not entitled to rely o bankruptcy clerk’s duty to notify as to when

nondischargeability complaints are due.

In re Neese, 87 B.R. 609 (9th Cir. B.A.P. 1988)

Time for filing cannot be extended once sixty days has run.

In re Ricketts, 80 B.R. 495 (9th Cir. B.A.P. 1982)

Creditor who was not listed but had actual notice of the bankruptcy could not get

extension to file complaint after time had run.

In re Hill, 811 F.2d 484, 487 (9th Cir. 1987)

No discretion to extend time for filing complaint once time has expired.

127