471 B.R. 768
Bankr. D. Mass.2012Background
- Plaintiff Gilbert Sullivan filed an adversary proceeding to determine dischargeability of a debt under 11 U.S.C. § 523(e) in a Chapter 7 case against Debtor Andrew Costa.
- Deadlines to object to discharge or determine dischargeability were set 60 days after the first meeting of creditors (Feb. 24, 2011), i.e., April 25, 2011, later extended to May 31, 2011 and then to August 15, 2011 and September 15, 2011.
- Plaintiff filed timely motions to extend the deadline but did not secure an extension before the September 15, 2011 cutoff.
- A October 4, 2011 motion to extend was granted after a Debtor timely objected, resulting in a November 22, 2011 extended deadline; the complaint was filed on November 21, 2011, initiating the adversary proceeding.
- Chapter 7 trustee filed five motions to extend the trustee’s time to object to discharge, ultimately to March 23, 2012, and those extensions were generally explicit as extensions for the trustee only.
- Plaintiff later sought to amend to add § 727(a) counts and to extend time nunc pro tunc under §§ 523(c) and 727(a); the court denied both amendments and dismissed the complaint with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of October 21, 2011 extension order | Plaintiff relied on the order to proceed with the case. | Order issued without Debtor’s awareness and without due consideration; infirm. | Order is infirm; treated as reconsideration de novo. |
| Timeliness of § 523(c) complaint | May extend deadline nunc pro tunc under Rule 9006(b)(3). | Rule 4007(c) extensions must be filed before expiration; untimely. | Counts under § 523(c) dismissed; untimely filed. |
| Amendment to add § 727(a) claims | Amendment should be allowed due to relation back and extensions. | Amendments are time-barred by Rule 4004(a) and (b). | Leave to amend denied; time-barred and futile. |
| Nunc pro tunc extension for additional time | Equitable grounds permit extension despite late filing. | Extensions must follow Rules 4004/4007/9006; not available here. | Motion denied; no basis to extend nunc pro tunc. |
| Relation back and tolling theories | Counts relate back; equitable tolling may apply. | No basis for relief; strict rule compliance; tolling not established. | Relate-back and tolling arguments rejected; not salvageable. |
Key Cases Cited
- Kontrick v. Ryan, 540 U.S. 443 (U.S. 2004) (time limits in Rules 4004(b) and 9006(b)(3) may be waived if not timely asserted)
- In re Nosek, 544 F.3d 34 (1st Cir. 2008) (section 105(a) cannot override codified bankruptcy procedures)
- In re Jamo, 283 F.3d 392 (1st Cir. 2002) (equitable power of 105(a) limited in bankruptcy)
- Erie Ins. Co. v. Romano, 262 B.R. 429 (Bankr. N.D. Ohio 2001) (equitable tolling requires extraordinary circumstances)
- In re Eaton, 327 B.R. 79 (Bankr. D.N.H. 2005) (strict reading of timing rules; lack of extension relief)
- Ortega Candelaria v. Orthobiologics, LLC, 661 F.3d 675 (1st Cir. 2011) (equitable tolling framework in plural contexts)