In re Vinson
In re Vinson
Opinion of the Court
ORDER ON MOTION TO EXTEND DEADLINE FOR FILING COMPLAINTS PURSUANT TO SECTIONS 727 AND 523 OF THE BANKRUPTCY CODE
This matter came on for hearing before the Court on February 5, 2013, upon the Motion to extend the deadline for filing a complaint to object to discharge or to determine dischargeability of debt (Doc. #42) filed by CFBank on December 21, 2012, as supplemented on February 4, 2013 (Doc. # 58) (hereinafter, the “Mo
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(a), and General Order No. 05-07, entered by the District Court for the Southern District of Ohio, referring all bankruptcy matters to this Court. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (I), (J) and (0).
December 26, 2012 was the deadline set in this case for filing a complaint objecting to Debtors’ discharge under § 727
Debtors retort that the Bankruptcy Rules require a showing of cause in order to warrant an extension of the deadline, and that CFBank has failed to illustrate sufficient cause to justify an extension of the deadline for its benefit. In fact, according to Debtors, CFBank has done nothing to further its interests since the commencement of the case other than attend the § 341 Meeting and filing the Motion: CFBank did not ask questions at the § 341 meeting of creditors, has not asked for information from Debtors, has not propounded discovery, and has not contacted Debtors or their counsel aside from requesting an extension of the deadline. This is in stark contrast to the conduct of Fahey Bank, which engaged in inquiry at the meeting of creditors, immediately thereafter posed additional questions, has requested documents and additional information from Debtors, and has requested a Rule 2004 Examination of Debtors.
Bankruptcy Rule 4004(a) provides, in pertinent part, that a complaint objecting to a debtor’s discharge “shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a).” Fed. R. Bankr.P. 4004(a). Rule 4004(b)(1) allows that deadline to be postponed upon a timely filed motion of any party in interest, stating that “the court may for cause extend the time to object to discharge.” Fed. R. Bankr.P. 4004(b)(1) (emphasis supplied). Similarly,
CFBank relies heavily (and solely) on the Ninth Circuit case of Moreno v. Newton (In re Newton), No. 93-16788, 1995 WL 251136, 1995 U.S.App. LEXIS 9855 (9th Cir. April 28, 1995). In Newton, the bankruptcy court denied a creditor’s motion to extend the deadline to file such complaints, and on appeal, the district court affirmed. In analyzing the question of what constitutes cause for an extension pursuant to Bankruptcy Rule 4007, the Ninth Circuit Court of Appeals adopted the factors articulated by an Oklahoma Bankruptcy Court: “ ‘(1) whether granting the delay will prejudice the debtor and (2) the length of the delay and its impact on efficient court administration.’ ” Id. at *2, 1995 U.S.App. LEXIS 9855 at *5 (quoting In re Sturgis, 46 B.R. 360, 365 (Bankr.W.D.Okla. 1985)). The Newton court found that the creditor had met the criteria in that there were already two adversary proceedings pending at the time the creditor’s motion was filed (although it is unclear whether the complaints were brought under § 523 or § 727, or some other provision of the Bankruptcy Code), the debtor had stipulated to an extension of the deadline for three other creditors to file complaints objecting to discharge, the debtor’s bankruptcy proceeding was complex, and the § 341 meeting of creditors had been continued twice, finally to a date that fell after the initial deadline. The court did not discuss the length of delay and its impact on court administration, but found that there was no prejudice to anyone since extensions had been granted other creditors.
Courts in this circuit have thus far adopted a narrower view of cause. Judge Hopkins of this Court has previously stated that Rule 4007(c) requires that the cause for an extension “must be compelling and a creditor must show why it was not able to comply with the deadline originally set.” Huntington Nat’l Bank v. Lewis (In re Lewis), 224 B.R. 619 (Bankr.S.D.Ohio 1997) (Hopkins, J.) (citing 9 Lawrence P. King, Collier on Bankruptcy ¶ 4007.04[3][b] (15th ed. 1996)). In Lewis, Huntington National Bank (“Huntington”) filed a motion to extend the deadline for a dischargeability complaint, alleging that the parties were in negotiations, and needed additional time to conclude their discussions. The debtor objected, on the basis that Huntington did not demonstrate cause for the extension of the deadline: Although Huntington had attended the § 341 meeting of creditors, it had not been in contact with the debtor or debtor’s counsel about its claims, had not sought a Rule 2004 examination, and did not attend the hearing on its motion. The court noted that had Huntington’s counsel attended the hearing, perhaps he could have clarified the discrepancy regarding communications between the parties, but in the absence of his input, the court found that Huntington failed to state a compelling reason for the extension of time or explain why it was unable to meet the deadline.
In a very different but illustrative case, the Northern District of Ohio Bankruptcy Court denied a motion to extend the deadline in In re Hake, No. 04-41352, Order Granting in Part and Denying in Part Motion for Extension of Time to File Complaint to Object to Discharge (Bankr.N.D.Ohio August 11, 2006). In that case,
The court in In re Nowinski, 291 B.R. 302 (Bankr.S.D.N.Y. 2003) renders additional guidance. In Nowinski Wells Fargo Bank (“Wells Fargo”) sought an extension of the deadline, asserting that in light of the complexity of the debtor’s financial affairs and the debtor’s prepetition failure to cooperate, it needed time to complete discovery and prepare a complaint. Although it had knowledge of the bankruptcy case, Wells Fargo failed to attend the meeting of creditors, and failed to make any effort to obtain information about the debtor or his financial affairs via discovery, a Rule 2004 examination or contact with others having information about the debt- or’s affairs.
The factors that inform the court’s discretion include (1) whether the creditor had sufficient notice of the deadline and the information to file an objection, ... (2) the complexity of the case.... (3) whether the creditor exercised diligence, ... (4) whether the debtor refused in bad faith to cooperate with the creditor, ... and (5) the possibility that proceedings pending in another forum will result in collateral estoppel of the relevant issues.
Nowinski 291 B.R. at 305-306 (internal citations omitted). To leave no doubt, the court succinctly stated: “Knowledge of the deadline coupled with the failure to diligently seek discovery is, absent unusual circumstances, fatal to an extension motion.” Id. at 306.
CFBank attempts to distinguish each of these cases, pointing out that there had not been an extension of the deadline granted to any other creditor when the moving party sought its extension. In the instant case, an extension of the deadline has already been granted to Fahey Bank by Debtors. This, according to CFBank, diffuses the impact of any other extensions, and, redirecting the focus to Newton discussed above, renders an extension nonprejudicial to Debtor. CFBank couples this conclusion with the comment that, if Debtors are not hiding something, then they have nothing to worry about. This last deduction is completely off the mark and throws the cart before the horse. The burden is on CFBank as the moving party to demonstrate cause for its Motion, not on Debtors to show that there are no grounds for an objection or exception to discharge after the Motion has been granted.
Even if CFBank’s attempt to distinguish the cases above was well taken, CFBank’s conclusion about prejudice to
Turning to the standards espoused by courts in this circuit, it is clear that CFBank has not illustrated cause warranting an extension of the deadline. The Lewis court required that the reasons stated must be compelling, and the creditor must show why it was unable to meet the deadline. In this case, the Lewis criteria dovetail with the only Nowinski factors at issue: whether the creditor had sufficient information to file an objection and whether the creditor exercised diligence. Here, CFBank can only say that Debtors’ testimony at the § 341 meeting raises serious questions pertaining to their entitlement to a discharge, and that it couldn’t file a complaint timely because it lacked sufficient information to warrant filing such a complaint under its Rule 9011 obligations.
CFBank repeatedly insisted during the hearing that it would be unfair to deny CFBank’s Motion when Fahey Bank has obtained an extension. However, treatment of one creditor does not dictate the treatment appropriate for another. As aptly pointed out by Debtors, to extend the deadlines for one creditor just because a debtor agreed to an extension for another would emasculate the requirement of cause in Rules 4004 and 4007. Further, it
Additionally, the Court is of the opinion that it would be unfair to grant CFBank’s Motion when it has not engaged in appropriate activities to pursue its rights and protect its interests. Yes, Fahey Bank has obtained an extension of the deadline, but it was aggressive in protecting its rights. The § 341 meeting was in October; in November, Fahey initiated contact with Debtors’ counsel to request documents and schedule a Rule 2004 examination. Debtor agreed to an extension of the deadline to allow the parties more opportunity to exchange information, review documents and schedule the examination at a mutually convenient time. It is safe to assume that had Debtors declined to agree to an extension for Fahey Bank, they would have been justifiably subjected to demands for immediate production of documents and a quickly scheduled examination, so that Fahey could file a complaint by the deadline. This is not a case in which the deadline was unknown to CFBank, or where error of the court has caused an untimely filing,
Finally, CFBank argues that it has not acted more aggressively because it was trying to be efficient and avoid incurring additional legal fees by engaging m the same activities as Fahey Bank. This is curious coming from a creditor who argues that there is cause in that it is owed over $1,500,000, much more than Fahey Bank. It is well established that a creditor is responsible for diligently pursuing and protecting its interests, and may not sit on its rights. See e.g., Longo v. McLaren (In re McLaren), 136 B.R. 705, 718 (Bankr.N.D.Ohio 1992); Byrd v. Alton (In re Alton), 837 F.2d 457 (11th Cir. 1988). In this instance, CFBank has sat on its rights. Despite its knowledge of the deadline, it failed to engage in any actions in furtherance of its interests, and such failure is fatal to the Motion.
In accordance with the foregoing, the Motion of CFBank to extend the deadlines for filing a complaint under § 523 or § 727 is DENIED.
IT IS SO ORDERED.
. The Motion sought an extension of the deadline until February 1, 2013. The supplement amended the Motion only in that it requested that the deadline be extended to February 22, 2013.
. All statutory citations, unless otherwise indicated, are citations to provisions of the Bankruptcy Code, Title 11 of the United States Code.
. A receiver had been appointed by the state court prior to the debtor filing a petition for bankruptcy relief The receiver was in possession of records and was knowledgeable about the debtor’s affairs.
. Bankruptcy Rule 9011 provides, in short, that an attorney filing a pleading or other paper is certifying that "to the best of [his] knowledge, information and belief, formed after an inquiry reasonable under the circumstances,” that the document is not being filed for any improper purpose, that there is legal support for the claims therein, and that there is or is likely to be evidentiary support for the factual allegations. Fed. R. Bankr.P. 9011.
. I fact, when CFBank’s counsel approached Fahey’s counsel about same, Fahey's counsel referred him to Debtors’ counsel.
. See, e.g., Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629 (6th Cir. 1994).
. See, e.g., Nardei v. Maughan (In re Maughan), 340 F.3d 337 (6th Cir. 2003).
Reference
- Full Case Name
- In re Gary VINSON, Susan L. Vinson, Debtors
- Cited By
- 4 cases
- Status
- Published