Blackstone Financial Group Business Trust v. Myler (In re Myler)
Blackstone Financial Group Business Trust v. Myler (In re Myler)
Opinion of the Court
MEMORANDUM DECISION
This proceeding concerns a creditor’s right to maintain revocation of discharge and nondischargeability claims filed out of time. Under the Bankruptcy Code, a creditor may request revocation of a chapter 7 debtor’s discharge within one year after the discharge was granted if the discharge was obtained through fraud and the creditor did not know of the fraud until after the discharge was granted.
The Court holds that the deadline to file a complaint to revoke the debtors’ discharge under § 727(d)(1) and (2)
JURISDICTION
The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and (b) and 157(a) and (b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) and (J), because it involves a determination of the dischargeability of a particular debt and an objection to discharge in the form of a request for revocation of discharge.
FACTUAL BACKGROUND
Blackstone Financial Group Business Trust (“Blackstone”) is the lender of record in a $62 million loan to Midtown Joint Venture, LC (“MJV”). The loan was for the development of a mixed-use commercial and residential real estate project known as “Midtown Village.” Lawrence Myler was a principal of MJV and personally guaranteed the loan (“MJV Loan”). The project ultimately failed and MJV defaulted on its obligations to Blackstone’s predecessors-in-interest, BankFirst and Marshall Investments Corporation.
Lawrence Myler and his wife, Jill, (the “Mylers”) filed a chapter 7 bankruptcy petition on August 20, 2010, and they received their discharge on November 23, 2010. The case was closed on June 21, 2011. On May 30, 2012, Blackstone filed a complaint seeking a determination that its claim against Lawrence Myler was nondis-chargeable and requesting revocation of the Mylers’ discharge. The complaint alleges that Lawrence Myler fraudulently obtained and used MJV Loan proceeds for his personal benefit, that the Mylers failed to disclose assets and transfers, and that they obtained property of the estate that they failed to report or deliver to the bankruptcy trustee. The Mylers filed a motion to dismiss on June 28, 2012.
DISCUSSION
The Mylers ask the Court to dismiss the adversary proceeding under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7012. To support their positions, the Mylers have attached affidavits and other documents to their pleadings. A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted must be treated as a Rule 56 motion for summary judgment if matters outside of the pleadings are presented to and not excluded by the Court.
A. Standard for Motion to Dismiss
“In reviewing a motion to dismiss, the court must ‘look for plausibility in the complaint.’ ”
B. The Section 727 Claim
Blackstone requests revocation of the Mylers’ discharge pursuant to § 727(d)(1) and (2). Under § 727(d)(1), a court shall revoke a debtor’s discharge granted under § 727(a) if the discharge “was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge.”
The deadlines for requesting revocation of a discharge under § 727(d)(1) and (2) are set forth in § 727(e). Section 727(e)(1) allows a creditor to seek a revocation of a debtor’s discharge under § 727(d)(1) “within one year after such discharge is granted.”
Blackstone also failed to meet the deadline provided in § 727(e)(2), which allows a creditor to seek revocation of a discharge under § 727(d)(2) “before the later of (A) one year after the granting of such discharge; and (B) the date the case is closed.”
Blackstone argues that the deadline imposed by § 727(e)(1) should be equitably tolled. The United States Court of Appeals for the Tenth Circuit has not spe
Blackstone’s claim under § 727(d)(2) also falls short because it was untimely. The plain language of § 727(e)(2) makes clear that there is a time limit within which a creditor can request revocation of a discharge. Congress has given no indication that it intended to toll those deadlines.
C. The Section 523 Claim
Subject to certain limitations, section 523(c) grants a debtor a discharge from a “debt of a kind specified in paragraph (2), (4), or (6) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), or (6) ... of subsection (a) of this section.”
Federal Rule of Bankruptcy Procedure 4007(c) requires that a creditor file its “complaint to determine the discharge-ability of a debt under § 523(c) ... no later than 60 days after the first date set for the meeting of creditors under § 341(a).”
Blackstone, once again, claims that the doctrine of equitable tolling should apply to the deadline of Rule 4007(c) and that the Court should allow the untimely nondischargeability claim. Unlike the time limits of § 727(e), the bar laid out in Rule 4007(c) is subject to equitable tolling.
The crucial question facing the Court is “whether these facts, if taken as true, justify an equitable exception to the normal rule that an untimely adversary proceeding must be dismissed if the issue is properly raised by the defendant.”
The plaintiff bears a weighty burden to show that equitable tolling applies.
Nothing contained in the record or the pleadings supports a finding that Blackstone diligently pursued its rights. Equitable tolling is appropriate when “despite all due diligence, a plaintiff cannot obtain the information necessary to realize that he may possibly have a claim.”
There has also been no showing of extraordinary circumstances that prevented Blackstone from timely filing its objection to discharge. Blackstone does not argue that notice was insufficient.
In sum, Blackstone has made no showing that the Mylers impeded its ability to timely bring a claim for nondis-chargeability or that “truly extraordinary circumstances” prevented the trust from filing its claim “despite diligent efforts.”
CONCLUSION
Blackstone’s nondischargeability claim under § 523(a)(2)(A) and its request for revocation of discharge under § 727(d)(1) and (2) were untimely. The fact that Blackstone did not know of its potential claims before the time for filing these claims expired is not sufficient by itself to justify that the time periods be tolled. Equitable tolling of the § 727(e) deadlines is not proper, and Blackstone has not carried its burden of persuading the Court that the doctrine should apply to its § 523(a)(2)(A) claim either.
Accordingly, the Mylers’ motion to dismiss is GRANTED, and this adversary proceeding is DISMISSED. A separate order will be issued in accordance with this Memorandum Decision.
. 11 U.S.C. § 727(e)(1).
. 11 U.S.C. § 727(e)(2).
. Fed. R. Bankr.P 4007(c).
. Unless otherwise noted, all subsequent statutory references are to Title 11 of the United States Code.
. Fed.R.Civ.P. 12(d); see also Marty v. Mortgage Electronic Registration Systems, No. 1:10-CV-003-CW, 2010 WL 4117196 (D.Utah Oct. 19, 2010).
. See Marty, 2010 WL 4117196, at *7; see also Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
. Yaklich v. Grand County, 2008 WL 1986470, at *3 (10th Cir. May 7, 2008) (citing Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)).
. Rosenfield v. HSBC Bank, 681 F.3d 1172, 1178 (10th Cir. 2012) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Alvarado, 493 F.3d at 1215 n. 2.
. 11 U.S.C. § 727(d)(1).
. 11 U.S.C. § 727(d)(2).
. 11 U.S.C. § 727(e)(1).
. 11 U.S.C. § 727(e)(2).
. In re Walton, Adv. No. 10-01571-MER, 2012 WL 2357371, at *6 (Bankr.D.Colo. June 13, 2012).
. Id.
. Id.
. 6 Collier on Bankruptcy, ¶ 727.18[1] at 727-80 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2011).
. See In re Fehrs, 391 B.R. 53, 67 (Bankr.D.Idaho 2008).
. See In re Miller, 336 B.R. 408, 413 (Bankr. E.D.Wis. 2005).
. In re Christensen, 403 B.R. 733, 737 (Bankr.D.Utah 2009).
. Id. at 736 (citing In re Abdelmassia, 362 B.R. 207, 214 (Bankr.D.N.J. 2007)).
. See Docket No. 1, Complaint, ¶¶ 8, 27.
. Christensen, 403 B.R. at 736.
. Id. at 736-37 (emphasis added) (citing Abdelmassia, 362 B.R. at 214).
. 11 U.S.C. § 523(c)(1).
. 11 U.S.C. § 523(a)(2)(A).
. Fed. R. Bankr.P. 4007(c).
. Id.
. In re Maytorena, Adv. Nos. 11—1079—j, 11-1080-j, 2011 WL 5509194, at *6 (Bankr. D.N.M. Nov. 4, 2011).
. In re Kontrick, 295 F.3d 724, 733 (7th Cir. 2002), aff'd on other grounds; see also Maytorena, 2011 WL 5509194, at *1.
. In re Martinsen, 449 B.R. 917, 921 (Bankr. W.D.Wis. 2011).
. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
. Maytorena, 2011 WL 5509194, at *7.
. Id.
. Young v. United States, 535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (citing Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000)).
. Martinsen, 449 B.R. at 924 (citing Kontrick, 295 F.3d at 733).
. Young, 535 U.S. at 47, 122 S.Ct. 1036.
. Jones v. Res-Care, Inc., 613 F.3d 665, 670 (7th Cir. 2010) (quoting Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860 (7th Cir. 2005)).
. Martinsen, 449 B.R. at 924.
.Id.
. Id.
. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).
. Young, 535 U.S. at 49, 122 S.Ct. 1036 (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).
. Baldwin County Welcome Center, 466 U.S. at 151, 104 S.Ct. 1723.
. See Clementson v. Countrywide Financial Corporation, 464 Fed.Appx. 706 (10th Cir. 2012).
. Baldwin County Welcome Center, 466 U.S. at 151, 104 S.Ct. 1723.
. Martinsen, 449 B.R. at 921.
Reference
- Full Case Name
- In re Lawrence J. MYLER and Jill R. Myler, Debtors. Blackstone Financial Group Business Trust, a Utah business trust v. Lawrence J. Myler and Jill R. Myler
- Cited By
- 1 case
- Status
- Published