John P. Miller v. James G. Herman
737 F.3d 449
7th Cir.2013Background
- Herman filed Chapter 7 on June 4, 2010; Miller was listed on the schedules with address shown as “c/o Thomas Stilp, Attorney.”
- Bankruptcy notice was delivered to Stilp’s office in June 2010 but routed to another attorney; Stilp did not learn of the notice or notify Miller until August 31, 2010.
- The bankruptcy court entered a discharge on September 27, 2010; Miller received actual notice 24–27 days before the objection deadline (Sept. 24, 2010).
- Miller waited until September 26, 2011 (almost 13 months later) to move to reopen the case seeking revocation of discharge and nondischargeability relief.
- The bankruptcy court found that notice to Stilp could be imputed to Miller (sufficient nexus/agency) and denied reopening; the district court affirmed and this Court affirmed.
Issues
| Issue | Miller's Argument | Herman's Argument | Held |
|---|---|---|---|
| Sufficiency of listing/§ 727(a)(4)(A) | Herman failed to list Miller; discharge should be objected to/revoked | Miller was listed on Schedule F; § 727(a) objection deadline missed | Dismissed: Miller was listed; § 727(a) objection untimely |
| Revocation under § 727(d)(1) (fraud on discharge) | Discharge procured by fraud related to construction defects | Alleged fraud occurred years earlier and unrelated to obtaining the discharge | Denied: no fraud in obtaining discharge; claim unrelated to discharge |
| Notice/nondischargeability (§ 523(a)(3)(B)) | Service to Stilp’s office was insufficient; Miller lacked timely notice to act | Notice to Stilp was proper; sufficient nexus between Miller and Stilp; notice imputed | Held: Notice to Stilp imputed to Miller; no basis to reopen |
| Standard of review | — | Bankruptcy court’s discretion and factual findings entitled to deference | Affirmed: no abuse of discretion; factual findings not clearly erroneous |
Key Cases Cited
- Redmon v. Fifth Third Bank, 624 F.3d 793 (7th Cir. 2010) (standard for reviewing denial to reopen bankruptcy)
- In re Ingersoll, Inc., 562 F.3d 856 (7th Cir. 2009) (discretionary standard for reopening bankruptcy cases)
- In re Smith, 582 F.3d 767 (7th Cir. 2009) (notice sufficiency and imputed notice analysis)
- United States v. U.S. Gypsum Co., 333 U.S. 364 (U.S. 1948) (clear error standard for factual findings)
- In re Schicke, 290 B.R. 792 (10th Cir. B.A.P. 2003) (totality-of-circumstances test for imputing notice to creditor’s attorney)
- In re Faden, 96 F.3d 792 (5th Cir. 1996) (reasonableness standard for debtor’s diligence in informing creditor)
- In re Bianucci, 4 F.3d 526 (7th Cir. 1993) (deference to bankruptcy court’s decision to reopen)