Third Federal Savings & Loan Ass'n v. Meeks (In re Meeks)
Third Federal Savings & Loan Ass'n v. Meeks (In re Meeks)
Opinion of the Court
OPINION
The issue before us springs from a motion, filed by the above defendant, against whom a default judgment had been entered, seeking leave to file a late answer. We will deny the motion.
The facts are not in dispute: On November 9,1979, Joseph A. Meeks and Eleanor L. Meeks (“the debtors”) filed a voluntary petition for relief under the Bankruptcy Reform Act of 1978. On March 27, 1980, the Third Federal Savings and Loan Association of Philadelphia (“the plaintiff”) filed an adversary proceeding against said debtors seeking relief from the automatic stay imposed by § 362(a) of the Bankruptcy Code. The Summons and Notice of Trial, served on the debtors by certified mail pursuant to Rule 704(c) of the Rules of Bankruptcy Procedure, mandated the debtors to file a responsive pleading by April 7, 1980. They filed nothing. Instead, on April 17, 1980, the date set for trial, the debtors appeared with their counsel, prepared (they say) to be heard on the issue not joined. Instead, counsel for the plaintiff moved for a default judgment.
As happens too often, the attorney who appeared at the trial on behalf of the debtors was not the attorney who knew anything about the cáse. Counsel who was in court merely stated that “because the other attorney could not make it this morning I was given the file. Among the papers I have there is a rough draft of an answer. That is as much information as I can give the court at this time.”
The Bankruptcy Reform Act of 1978 provides that the present Rules of Bankruptcy Procedure which became effective on October 1, 1973, shall continue in effect until new Rules are adopted.
Rule 701 under Part VII of the Rules of Bankruptcy Procedure provides that
The rules of this Part VII govern any proceeding instituted by a party before a bankruptcy judge to . (6) obtain relief from a stay as provided in Rule 401 or 601 . . . Such a proceeding shall be known as an adversary proceeding.
And Rule 712 requires
If a complaint is duly served upon him, a defendant shall serve his answer within 30 days after the issuance of the summons, except when a different time is prescribed by the court.
In the case at bench the complaint was filed on March 27 and the court directed that an answer be filed by April 7.
Rule 755 states that
When a judgment is sought against a party in adversary proceedings and such party has, without sufficient excuse, (1) failed to plead or otherwise defend or, (2) having filed a pleading or motion, is not ready to proceed with trial on the day set therefor in accordance with these rules, the court upon request therefor shall enter a judgment by default .
No answer having been filed, either by April 7 or by the date set for trial, and the debtors having suggested no “sufficient excuse” for their failure to file their answer, the judgment by default was properly entered and the subsequent motion for leave to file a late answer will be denied.
. See N.T. p. 2.
. See debtors’ motion Par. 4.
. Reform Act, Title IV, § 405(d).
Reference
- Full Case Name
- In re Joseph A. MEEKS and Eleanor L. Meeks, h/w, Individually and Jointly, Debtors. THIRD FEDERAL SAVINGS AND LOAN ASSOCIATION OF PHILADELPHIA v. Joseph A. MEEKS and Eleanor L. Meeks, his wife
- Cited By
- 1 case
- Status
- Published