In re Tumbleson
In re Tumbleson
Opinion of the Court
THIS MATTER came before the Court for hearing on July 3, 2018 on motions of *914Capital City Bank ("CCB") for extensions of time to file complaints objecting to dischargeability of certain debts and to Debtors' discharges (collectively, the "Motions for Extension").
Two separate loans and lending relationships underlie CCB's claims. The first loan is between CCB and Tumbleson White Construction, Inc. ("TWC") (the "TWC Loan"),
Debtors filed their voluntary Chapter 7 petition on February 24, 2018
At the § 341 meeting CCB's counsel appeared and questioned Mr. Tumbleson regarding an October 16, 2016 personal *915financial statement.
As its reason for seeking the extensions of time, CCB alleges that both its state court and bankruptcy counsel were engaged in obtaining discovery from Mr. White, but that Mr. White stopped cooperating.
Bankruptcy Rules 4004(a) and 4007(c) provide that objections under § 727 and § 523 must be filed not later than 60 days following the first date set for the § 341 meeting.
Courts have considered seven factors in determining whether "cause" exists for an extension of time to file a complaint under either Rule 4004(b) or 4007(c) : (1) whether the debtor refused in bad faith to cooperate with creditor; (2) whether creditor had sufficient notice of the deadline and the information to file an objection; (3) the possibility that the proceedings pending in another forum will result in collateral estoppel on the relevant issues; (4) whether creditor exercised diligence; (5) the complexity of the case; (6) whether granting the delay will prejudice the debtor; (7) the length of the delay and its impact on efficient court administration.
There is no evidence that Debtors have refused in bad faith to cooperate with *916CCB. Debtors, through their counsel, have diligently responded to CCB's questions and requests for information.
The most significant factor in this case is whether CCB exercised sufficient diligence to be entitled to the extensions it requests. A lack of diligence, alone, can be fatal to a creditor's request to obtain an extension.
CCB argues that it's attorneys' efforts to obtain informal discovery from Mr. White are sufficient to establish that it exercised diligence in this case. A similar argument was ineffective in In re Ballas.
Both Debtors and CCB cite this Court's ruling in In re Watson , which weighs against granting an extension to CCB.
CCB's argument at the hearing in support of its request for an extension of time file a § 523 complaint hurt its position. CCB argued that in his application for the TWC loan Mr. Tumbleson listed the value of TWC significantly higher than it actually was. CCB claims this is because Mr. Tumbleson inflated the value of TWC's accounts receivable. After TWC's business ceased, CCB apparently analyzed TWC's ledgers, which showed a significant amount of accounts receivable. But when CCB attempted to collect on these accounts, the account debtors claimed they did not owe any money to TWC. These facts show that actions by Mr. Tumbleson that could have given rise to a § 523 claim, and CCB's knowledge of same, occurred pre-petition. Mr. Tumbleson's valuation of his stock in TWC occurred before, or at least no later than when CCB made the TWC Loan in 2016. Any time between then and the date that Debtors filed their Chapter 7 petition CCB could have examined and tested TWC's accounts receivable. Apparently, CCB elected not to do so until after TWC defaulted on the underlying loan. That business decision, and its adverse consequences, are not sufficient grounds to grant CCB an extension of time to sue Mr. Tumbleson under § 523 more than the initial sixty days provided in the Bankruptcy Code and Rules.
CCB has failed to allege or show any basis for a § 727 action, much less a basis upon which the Court should grant it more time within which to do so. None of the questions it asked at the § 341 meeting, or the follow-up requests for information from Debtors' counsel, were designed to discover into actions that would give rise to a § 727 objection to discharge.
CCB failed to demonstrate that cause exists under Bankruptcy Rule 4004(a) or 4007(c) to grant an extension of time to object to Debtors' discharges under § 727, or the dischargeability of a debt under § 523.
For the reasons stated, CCB's Motions for Extension have properly been denied.
DONE and ORDERED on August 1, 2018.
CCB filed two identical motions seeking extensions of time to file complaints pursuant to
Debtors filed two identical objections to the relief sought in each motion. See Debtor's Objection to Motion of Creditor, Capital City Bank, to Extend Time for Filing Complaint Objecting to the Dischargeability of Certain Debts Pursuant to § 727 , Doc. 49 and Debtor's Objection to Motion of Creditor, Capital City Bank, to Extend Time for Filing Complaint Objecting to the Dischargeability of Certain Debts Pursuant to § 523 , Doc. 50.
Docs. 60 & 61.
Docs. 18, 49 & 50.
Doc. 6.
Docs. 49, 50, 52, Ex. "1" & 53.
See Doc. 52, Ex. "1". The suit was filed in the Circuit Court for the Second Judicial Circuit in Leon County, Florida and is styled Capital City Bank v. Tumbleson White Construction, Inc., et al., Case No.: 2017-CA-002329.
Doc. 49. It is unclear from the record when the Tumbleson Loan was entered into. On Schedule E/F, in reference to the Tumbleson Loan, Debtors state that the debt was incurred between August 2014 and May 2016. Doc. 18, p. 22.
Doc. 1.
Doc. 18.
Doc. 25.
Doc. 14.
CCB originally filed the Motions for Extension on June 1, 2018, and refiled them on June 4, 2018. See Docs. 41-46.
Docs. 49 & 50.
Docs. 49, 50 & 54. CCB does not contest Debtors' allegation that the only questions CCB asked were: "(1) how the value of Mr. Tumbleson's interest in [TWC] contained on a 2016 personal financial statement was calculated and (2) the name of the accounting firm which prepared the 2015 corporate tax return." Doc. 54.
Docs. 49 & 50. CCB does not dispute that the final correspondence between its and Debtors' counsel regarding the questions from the Section 341 meeting was on April 26, 2018.
Doc. 53, p.2.
Fed. R. Bankr. P. 4004(a) ; Fed. R. Bankr. P. 4007(c).
Fed. R. Bankr. P. 4004(b) ; Fed. R. Bankr. P. 4007(c).
In re Watson , Case No.: 13-30420-KKS,
In re Boltz-Rubinstein ,
The § 341 meeting took place on April 4, 2018 and any follow up questions CCB asked of Debtors were responded to on or before April 26, 2018. See Docs. 14, 49 & 50.
Docs. 14, 18 & 25. CCB was listed on Debtor's mailing matrix at three different addresses. Doc. 17.
In re Denike ,
The creditor came into the case 48 days prior to the deadline; attended a Rule 2004 examination but did not ask any questions; and made no attempt to obtain a copy of the transcript from the Rule 2004 examination. Id. at 455-56.
In re Ballas ,
In re Watson , Case No.: 13-30420-KKS,
The Court in Watson granted the same creditor's motion for an extension of time to file a complaint under
Reference
- Full Case Name
- IN RE: John Doyle TUMBLESON, Jr. and Karen Lynn Tumbleson, Debtors.
- Cited By
- 3 cases
- Status
- Published