*4 FERNANDEZ, Before WARDLAW FLETCHER, and W. Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence Judge FERNANDEZ.
OPINION FLETCHER,
WILLIAM A. Circuit Judge. presented
We are in this case awith question impression: of first does the doc- trine of apply to nondischargeability complaints brought under U.S.C. and Federal Rule of Bank- 4007(b)? ruptcy Procedure When unsche- duled David Selinger sought creditor dischargeability determination of his state court judgment against Chap- default ter 7 Beaty, debtor Thomas bankrupt- cy granted court summary judgment in Beaty’s favor based on his affirmative de- fense of appeal, laches. On the bankrupt- (“BAP”) cy appellate panel reversed on ground that laches is never available as an affirmative defense in a ac- tion. For the reasons below, discussed we disagree holding with the BAP’s that lach- However, es is never available. because Beaty establish the unable elements of a laches defense this we hold that the BAP was correct in reversing the grant summary judgment in his favor.
I
The relevant facts are not dispute. 1991, September In Thomas and Nancy in the further occurred Nothing ment.” bankruptcy peti- Chapter Beaty filed a action. state court earlier, January Nine months tion. complaint had filed Selinger David 29, 1994, later, August Sel- year One a real against court state
in a California adversary proceeding proa se inger filed Does 1- company development Beatys’ estate seeking to revoke alia, conceal- fraudulent § 727. In June alleging, inter under U.S.C. Selinger summary judg- time At the bankruptcy granted malice. court ment with not action. It later action, Beatys Beatys and the did he ment to the filed his motion for reconsidera- they Selinger’s had denied Unaware know each other. lawsuit, the bank- The district court affirmed tion. Selinger or his any connection April court’s dismissal ruptcy a credi- Selinger list Beatys did In schedules. their tor on years after just six April In over grant- court January just discharge was issued Beatys’ discharge. Beatys ed the after filed shy years five Selinger that informed Notice state-court 1992, Selinger substituted In March status, Selinger, discharged Beaty’s *5 (“Beaty”) one of the Beaty Thomas se, a second bank again acting pro filed action. in his state court Does unnamed This against Beaty. complaint ruptcy Beaty after had been June On subject present ap the the of complaint, summons, complaint and substi- the served judgment that the peal, alleged default to order, Beaty had failed and after tution nondischargeable under U.S.C. was answer, the entered state court and appear (4) (6). 523(a)(2), complaint The § and against him. The judgment a default a Selinger not listed as noted that was in Beaty’s that conduct judgment stated no Beaty’s petition, received creditor in “fraudulent, had been injuring Selinger closed, and that the case would notice malicious, willful, in disre- and conscious until after of knowledge had no the court rights. The Selinger’s of gard” could not discharge, and therefore damages specified general awarded filing proof of of claim timely have amade deter- damages would be punitive that discharge- of or for determination request 17, 1993, a date. On June mined at later us, briefing and to ability. In his to that he a court order in to state response below, that he Selinger suggested courts examina- judgment at a debtor’s appear he did complaint when filed this second tion, Injunction earlier, a “Notice of filed a month United States because Cruz, Court, he Proceedings,” to which in v. de la Supreme Cohen Against Further dis- 140 L.Ed.2d of his 118 S.Ct. copy attached a 523 U.S. (1998), damages punitive stated ef- had held that “[t]he The Notice that charge. bankruptcy. in His Discharge equiva- dischargeable of Debtor is are fect of this that a injunction against complaint sought declaration lent to an automatic nondischarge judgment debt was commencing continuing or default creditors from 523(a)(3)(B);1 a modification any judg- able under enforcement any lawsuit [or] debtor, to whom such of the creditor provides 1. Section owed, permit— in time to debt discharge ... of this under section 727 [a] specified para- such debt is of kind if discharge debtor title does not individual subsection, (6) (2), (4), of this graph or debt— timely timely filing proof of a claim and discharge- scheduled section neither listed nor under request for determination name, title, para- 521(1) ability one of such of such debt under with the if known of this discharge order to allow continued learning of the after first [Beaty] had filed bank- prosecution of the state court action for a It ruptcy.” stated: punitive damages; determination Here, Mr. Selinger’s delay is inexcusable ruling punitive future award of and was done for tactical reasons. The damages would nondischargeable. Plaintiff expressed an intent- to await a In September change the law regard with to dis- granted by Beaty court a motion to dis- chargeability punitive damages and to Selinger’s complaint miss see what would happen with this 727 ground In not relevant here. March objected action which he to Mr. Bea- 2000, the BAP reversed remanded. ty’s Prejudice discharge. to the Defen- remand, Beaty On answered the com- facts, dant is obvious upon based these (1) plaint. The answer admitted that Sel- and the Court rules that the Debtor is inger was an unscheduled creditor who date, entitled to a fresh start at this late had knowledge bankruptcy pro- no having received his discharge ceeding in timely time to file a nondis- Selinger appealed BAP, which re- chargeability complaint, and asserted in part versed and remanded in a publish- laches as an affirmative defense. Beaty opinion. Beaty, ed re B.R. In argued Selinger had formal notice of Cir,BAP2001). majority The panel no later than 1993 and June held that the bringing his doctrine of nondis- laches is never a chargeability action was valid defense in a unreasonable and prejudicial. He noted that Selinger adversary had proceeding except from dis- *6 objecting lost earlier action to the Bea- charge a debt that the debtor failed to tys’ discharge present and that schedule in time permit timely filing to 523(a)(3)(B) § only brought was af- of a nondischargeability complaint. The Selinger change ter learned óf a in the law panel majority emphasized that Federal might benefit him. 4007(b) Rule of Procedure 523(a)(3)(B) provides § that a complaint Beaty moved summary judgment for may that, filed “at time.” It wrote based on laches. Selinger moved for sum- may we agree Selinger’s “[w]hile fail- mary judgment preclusion based on issue ure to act promptly questionable, more and portions Beaty’s moved to strike we are not at liberty plain to rewrite the answer, including the portion containing language of the or the A Code Rules.... his laches defense. The bankruptcy court laches filing defense to the of a motion, granted Beaty’s Selinger’s denied § motions, is in complaint conflict with and Selinger’s dismissed com- Rule inappropri- and therefore is plaint prejudice. with The court noted majority ate.” Id. at 846. The long that “laches has reasoned recognized been as a that, because a protect means to a debtor is also allowed to party from unreason- able, an action prejudicial delay” bring to determine the dis- equita- and is “an himself, properly chargeability ble defense available when of a see Fed. R. pled.” debt 4007(a), It held that Selinger “guilty Beaty was debtors like need laches B.ankr.P. by failing actions, bring bring to a Section 523 not wait for creditors to such .nondis- chargeability complaint years for over five and are therefore preju- able to avert
graphs, timely unless filing request. such creditor had notice or such and knowledge actual of the in time for a kind particular to Beaty, potential B.R. at defense In re See delay. dicial de of law reviewed question action is a P’ship v. Turner Wyler Summit novo. in concurred member panel BAP One (9th Cir. 235 F.3d Sys., Broad. object result, separately to wrote but 2000). laches majority’s conclusion ac- apply never could view, role potential po “there is a as a In his laches is available
tion. Where actions, defense” such defense, the laches law has been less tential our case to use the instant majority’s attempt “[t]he standard appropriate than clear as to incorrectly ap- laches was in which appeal, court’s decision review of lower to banish laches as the occasion plied, A case. particular in a applies laches baby throwing out the risks acknowledged have opinions number of (Klein, J., Id. with the bath water.” re have not on the issue but confusion member would panel This concurring). Formulas, See, Inc. e.g., it. Jarrow solved is available such held that laches have Now, Inc., 829, 834 v. Nutrition matter, but would general actions as (9th (holding that “the district Bankruptcy Court found that have factors is of the laches court’s finding discretion abused its deference, be reviewed entitled to not to (1) diligent, Selinger was this ease because novo,” conflict declining but to resolve de (2) by being prejudiced was not of discretion or to whether the abuse ability to defend unfairly deprived applies); Danjaq, standard clear error 523(a)(3)(B) action, this (9th 942, 952 Sony Corp., v. LLC was the self- any arguable prejudice Cir.2001) (declining question address Beaty’s attempt to “bam- inflicted result concluding result proper standard by erroneously stating Selinger boozle” under either clear error would be the same Injunction that the the Notice of review); Apache of discretion or abuse any judgment. Id. enforcement of barred States, Coalition United Survival at 850. Cir.1997) (‘We review *7 timely judgment the of appealed for application court’s of laches district the BAP. error.”); clear Tel abuse of discretion or ink, States, 42, 24 47 n. Inc. v. F.3d United II Cir.1994) (9th (holding that review is 11 appeal We review de novo cases that, while noting of discretion and abuse Panel. Bankruptcy Appellate ed from the “clearly errone panels had used the prior (9th Scovis, 975, 980 Cir. In re 249 F.3d standard, ap of this purposes “[f]or “ ous” 2001). a good we are in as ‘Because may exist be peal, distinction bankruptcy BAP review position as the immaterial”); the two standards is tween examine rulings, independently court we (9th 884, Axton, v. 25 F.3d 888 Jackson decision, reviewing court’s Cir.1994) reviewed (noting court has “[t]his of interpretation court’s grounds summary judgment grant fac Code de novo its de novo and for abuse of of laches both Tag tual error.’ In re findings for clear declining resolve discretion” (9th 987, gart, 990 249 F.3d affirm the would “[w]e conflict because (In re (quoting v. Hatton United States standard”), (9th regardless district court Hatton), 1057, 220 F.3d 1059 Cir. 2000)). v. Fan- grounds by Fogerty other available as a rev’d on laches is Whether
921
Inc.,
517, 531-32,
las,
114
tasy,
510 U.S.
S.Ct.
In cases like this where sum part of the debtor' —when those debts mary judgment been granted has on the laches, were not listed the debtor in the sched basis of aspects “we review certain decision,” ule of the district of creditors. The Code court’s such as differently and Rules treat inappropriately “whether the district court these debts any resolved from debts of the disputed material facts in same sort have been decision,” reaching properly Specifically, its under the de novo scheduled. § traditionally governs nondischargeabili standard that sum creates a mary judgment ty defrauded, review. who were Jarrow Formu- for creditors
922 Co., 434, 455, 60 Improvement and had no 310 U.S. nor scheduled neither listed 1044, (1940)); L.Ed. see also knowledge of the case S.Ct. 84 1293 actual notice or Katchen, 327, 467 timely filing proof of a 382 U.S. 86 S.Ct. permit the time to essentially “are timely request (noting bankruptcy for a determi courts a of claim or two dischargeability. equity”). principles courts of These Section nation 523(c)(1), presumption combine to create a that the provides possible which laches, which equitable of the same doctrine of has as exception from goal prevention prejudicial of creditors who its kinds of debts in cases notice,2 subject bringing proceeding, to a in the of a is rele- timely receive did 4007(c). necessary That Rule vant and doctrine the bank- limit under Rule time context. days ruptcy that a creditor has 60 provides meeting first date set for the creditors’ any BAP held that the “at time” The nondischargeability in which to file language of Rule overcomes contrast, 4007(b), By Rule complaint. any equitable presumption removes governs timing of the com which the commencement of a limitation on § complaints mencement of holding action. That has creditors, “A reads: com unscheduled example, the support. some For Patent 523(c) may plaint other than under be consistently has and Trademark Office any filed at time.” Act, 14 Lanham held that Section of the question provides The before us is wheth which that a cancellation action 523(a)(3)(B), implemented by premised genericism, Rule on abandonment or er 4007(b), procurement may brought allows the doctrine of fraudulent time,” “at analysis begins any precludes laches as a defense. Our laches defense recognition with a of two fundamental ten to such actions. See Marshak v. Tread (3d well, 184, 2 240 n. bankruptcy ets of law. The first is 193 “long[-]reeognized” (citing holding). Congress that “a chief cases so Before principle a statute purpose imposed laws is ‘to se of limitations action, prompt bringing corpus cure a and effectual administration time for habeas it providing and settlement of the estate of all bank was understood the statute rupts “may period[.]’ within a limited Katchen that a motion vacate sentence 323, 328, 467, Landy, v. 382 U.S. 86 S.Ct. made at time” rendered the doctrine (1966) (citation omitted). inapplicable. L.Ed.2d 391 of laches See v. Unit Heflin States, 415, 420, The understanding second is the that a ed 358 U.S. 79 S.Ct. (1959) (Stewart, J., equity court is a court of and L.Ed.2d 407 concur equitable principles ring). similarly should invoke A few other cases have doctrines, refusing only interpreted language to do so where “at time” in oth See, their e.g., would be “inconsistent” er statutes. Sooner Fed. Sav. & Smoot, Myr with the In re Loan P.2d Bankruptcy Code. Ass’n (9th Cir.2000) Leslie, (Okla.1995); vang, Marriage In re (1989). (citing Realty SEC v. United States & Wash.2d 772 P.2d *9 owed, 523(c)(1) 2. Section reads: creditor to whom such debt is and hearing, and a after notice court deter- (a)(3)(B) Except provided in subsection section, excepted mines to such debt from dis- of this the debtor shall be dis- (2), (4), (6), charge paragraph charged under or specified from a debt of a kind in be, (2), (15), (a) (4), (6) paragraph may as the case of subsection or of subsection (a) section, unless, request of this on of the this section.
923
However,
directly
disapproving
equitable
the few cases
reach-
notion of debtor
good faith.
at
Id.
1439 n. 4.
virtually
conclusion do so with
no
ing this
why
language would
analysis as to
such
(Bankr.
Lyman,
In re
B.R.
equitable
eliminate
S.D.Ill.1994), the one bankruptcy opinion
doctrine,
simply assuming that the
instead
the BAP considered to have”dealt
limitation
in
absence of a time
also results
squarely” with the issue of the applicability
523(a)(3)(B) actions,
the absence of a laches limitation. See
(cid:127)§
of laches in
gave no
Sooner,
1090; Leslie,
why
at
hint as to
any
894 P.2d
P.2d
the “at
time” language
in Rule
Further,
should eliminate the
“at
lan-
laches
any
at 1017.
time”
in
defense
those actions. The district
in all of these cases is contained in a
guage
in
court
that case provided only the conelu-
statute,
procedural
rather than
a
rule
sory statement that “a debtor who fails to
a statute.
implementing
a
jurisdictional
list
creditor loses the
and
majority
heavily
The BAP
relied
on
523(c)
limit protections
time
of Section
Judge O’Scannlain’s concurrence in In re
(c) ],”
Rule
“[tjherefore,
4007[
debtor’s
(9th Cir.1993),
Beezley,
barrier between the debtor and his dis- laches is available as a defense in a charge Congress simply did not enact First, action. an examina “[cjourts Code,” are tion other actions that are Congress not free to condition the relief without time limitations reveals Con has made available in the Bankruptcy gress nevertheless intended laches to act Congress deliberately Code factors has as a constraint in. those For ex actions. excluded from consideration.” Id. at 1439. ample, a Chapter may debtor move to But Judge O’Scannlain’s concurrence nev- reopen his case and a lien avoidance bring er to purported speak broadly about the time, any action at and creditors are pro applicability equitable doctrines to tected a concept having Indeed, cases. he cited prejudicially face actions debtors who very specific legislative history expressly Further, bringing such actions.3 See, Chabot, liens, e.g., “leading approach In re tions to avoid but the ("Absent prejudicial delay, incorporates ... an defense akin to laches, may brought may reopen avoidance action at so that debtor bank- time."), grounds by Bankruptcy ruptcy rev'd on other time avoid lien absent creditor”); finding prejudice Reform Act of Pub. Law No. 103-394 In re Bianucci, (1994); (D.NJ.2000) Levy, (noting § 303 In re 256 B.R. (7th Cir.1993) (noting statutory that the lien avoidance the absence of a time limitation for actions, provision bringing apply- sets no time limits on debtors' mo- of avoidance but
924 laches, provide 11 even when those rules no Chapter 13 and the Chapter both the contexts, For Rule 5010 recog example, have time limitation. courts regarding reopen bankruptcy to that, give failure to a credi motions while the nized require that a motion be precludes date cases does of the bar tor notice (and Rule period claim for filed within a certain time denying the creditor’s court from date, limitation provides one-year 9024 that the it that laches to file before failing 60(b) if of the Rules of Civil a claim there of Rule Federal bar such may nonetheless unreasonable, mo- delay.4 apply Procedure does not to these prejudicial is tions). recognized But courts have examples provides these Though none of be within a reason- com the motion “must filed perfect parallel may apply ... laches [and that] of laches in these able time application plaints, Lawrence P. reopen.” ac to a motion to 3 demonstrates contexts ¶ any King, Bankmptcy 5010.02[6] “at time” Collier on may brought tions ¶ (15th ed.1994); at 350.03[6] at 5010-6 id. excluded from per are not se history referencing in- (citing legislative laches. apply). tent for laches to Second, language the “at time” Third, con laches is not doctrine not found in Code is Rather, Rather, Bankruptcy solely cerned with it is timing. it is found itself. 4007(b), adopted pursuant primarily prejudice. concerned with Rule which was nothing inherently Act. Like a Federal There is thus contradic Enabling Rules to the Procedure, saying may “a that an action that Bankruptcy tory about Rule of Civil brought “at time” is exception create an to the nonetheless Rule cannot Code,” subject it cannot to an limitation equitable and based Bankruptcy “ modify any prejudicial delay. v. Am. enlarge, or substan See Couveau ‘abridge, (9th Airlines, Jastrem, 1083 tive In re 218 Cir. right.’ 2000) (“To 28 U.S.C. establish laches a defendant (quoting 2075). 2072(b) delay by must prove §§ We should there both unreasonable itself.”); extremely plaintiff prejudice reluctant to find in Rule fore be Coalition, Apache of the doctrine of Survival 118 F.3d at the abolition (“To laches, would if otherwise establish the defense of party prejudice with the limitation must show caused allow it. Consistent Act, Enabling diligence pursu lack imposed by opposing party’s the Rules other claim.”). ing implicitly Rules have been read to allow its This fact ing “recognized undisputed limitation” of laches to date. It is that Plaintiffs did not delayed filing). However, prejudicially bar a receive of the bar date.... notice inquiry, for a does not end Court's 4. See In re The Drexel Burnham Lambert indefinitely cannot wait to file a creditor (S.D.N.Y.1993) (al Group, 157 B.R. may apply equitable claim. This Court lowing court to use doctrine of laches in a prevent filing doctrine of laches to the late noting Chapter distinction 11 case “the proof of claim Plaintiff's was unrea- if rights between a creditor’s to notice under (citations omitted)); Barsky, sonable.” In re rights bankruptcy law and debtor's to resist (C.D.Cal.1988), aff’d, 85 B.R. dilatory claims under the doctrine (9th Cir.1991) that, (holding in a F.2d 1013 Hunt, laches”); In re 146 B.R. Chapter provide failure to notice (Bankr.N.D.Tex.1992) ("[A Chapter credi 11] preclude limiting “does not a court from tor's can be barred for failure to file a claim right pursuant creditor's to file a claim prior only proof to the bar date if the of claim laches”). independent creditor received reasonable notice of the bar doctrine
925
himself,
(such
chargeability
in
doctrine that a claim
in
recognized
some cases
described)
if
may
by
be barred
laches even
the stat
just
as the one
the debtor
for the claim has not
Further,
ute of limitations
would not know to do so.
it is
(not
Jackson,
expired. See
887
nearly always the case that a defendant
ing
of limitations bar claims
“[statutes
who invokes
brought
laches could have
time;
only upon
passage
laches bars
earlier
declaratory
judgment
prejudice
because
would
claims
otherwise
against the late-litigating plaintiff, see 28
defendant”);
result to the
see also
v.Wells
§
U.S.C.
but common sense and a
Carnegie
&
United States Steel
Pension
judicial
concern for
economy prevent this
Fund, Inc.,
Cir.
acting as bar to a laches defense in
1991) (noting
may ripen
laches
within a other contexts. We see no
why
reason
applicable period
that is short of the
time
laches should not be
in bankrupt-
available
limitations);
Loesch,
Maksym
937 cy when it is available elsewhere.
(7th Cir.1991)
that,
(noting
We note that the question
applica-
by
because laches focuses
harm caused
§
tion of laches to
actions
delay,
plaintiff]
“the fact that
sued
[a
[a
unusual,
any
would
that the “at
time”
statutory
within the
period
defendant]
4007(b)
language of Rule
play
comes into
laches”).
does not defeat the defense of
only
specific
case of a debtor’s fail-
law,
Analogizing to this rule of
the fact
ure to schedule a creditor. As all of the
that a creditor has time remaining on his
seeking
bring
creditors
such actions
(indeed,
statutory clock
an infinite amount
have,
definition,
by
already been disadvan-
time,
time”)
any
if the clock is set at “at
taged by the debtor’s failure to schedule
says nothing about whether his right
them, they might argue that the bankrupt-
bring
might
his action
be limited
laches.
cy policy
promptness
is forfeited
In the words of
concurring
member of
omission,
virtue of the debtor
and that
the BAP
panel
this
“the authoriza-
per
laches
se
should
unavailable to such
filing
tion
Rule
such an
However, because,
a debtor.
as discussed
any
action ‘at
time’ does
...
not
forbid a
above,
timing,
laches addresses more than
applying
court from
laches in appropriate
aspect
this
actions does
circumstances;
words,
in other
phrase
necessarily
not
an application
render
‘at
time’ does not mean ‘at
time no
laches
with the
“inconsistent”
inequita-
matter what and no matter how
Myrvang,
Code. In re
until recent Supreme-Court United States success); improved prospects particu- cases for failed to make a has also Bd., showing prejudice arising Dickinson v. Ind. State Election 933 larized ” and changed dramatically’ factors ‘have bringing his Selinger’s little mean- shed[ ] The “a review of the record action. solely precise on the nature of these prejudice ingful light based assumed court element, Selinger’s changes”). alleged the first the fact that in nature. As discussed tactical delay, was awaiting while favor-
above, delays on the Facts of This tactical 3. No Laches Case in the law are excused changes able of laches “Because laches, thus the court’s purposes of all the depends on close evaluation of also fails. analysis prejudice it facts is seldom by summary judgment.” susceptible of resolution to makes a hand Beaty’s brief us veau, at 1083. How Cou additional, conclusory, but claims ful of *14 ever, party argu where a has based his that he was “de He contends prejudice. entirely on a prejudice ment of almost finality discharge,” of his that prived legal support, that without contention is attorney’s fees that he otherwise he faces not, despite ample opportunity, and has faced, might and that there might not have due any specific adduced evidence of harm witnesses (unspecified) be some and/or like, unavailability or the to of evidence unavail evidence that will be documentary development further factual remand for At passage of time. able because of would be futile. We affirm the therefore Beaty pro was unable to argument, oral Selinger’s decision of the BAP that con any specific support vide more for his be allowed to should delay prejudicial. was tention with the proceed. disagree While we of prejudice claims do not generic Such affirm its conclusion reasoning, BAP’s we case, in any a laches defense suffice for action. Selinger’s that laches does not bar in a particularly and are insufficient heightened showing in which a of extraor Conclusion and demonstrable
dinary circumstances
See,
prejudice
required.
e.g., United
We hold that
laches is available as a
Inc.,
Enter.,
States v. Admin.
defense to
action filed under
U.S.C.
(finding
prejudi
no
523(a)(3)(B).
In order to establish a
alleged
cial
where
harm was “entire
defense,
successful
laches
a defendant
ly
Meyers
Corp.,
v. Asics
hypothetical”);
extraordinary
must show
circumstances
(Fed.Cir.1992) (“De
compelling
why
and set forth a
reason
they
fendants also
suffered evi-
argue
action should be barred. Because the ele-
key
of
dentiary prejudice
witnesses
—loss
ments of the defense are not satisfied in
documentary
and loss of
evidence. How
case,
correctly
this
BAP
re-
ever,
exactly
none
the defendants state
of
grant
versed the
court’s
particular prejudice
what
it suffered from
summary judgment Beaty’s favor.
the absence of these witnesses or evidence.
AFFIRMED.
Conclusory statements
there
are
witnesses, that witnesses’ memo
missing
FERNANDEZ,
Judge,
Circuit
lessened, and that
ries have
there is miss
concurring:
evidence,
ing documentary
are not suffi
McLean,
cient.”);
agree
ex rel. Casale v.
I concur in the result because I
State
(1991)
Selinger’s
569 N.E.2d
laches does not bar
com-
Ohio St.3d
(refusing
litigant
plaint
dischargeability
find laches where
of
to determine the
fraudulent,
only
judgment against Beaty
fered
“a bare assertion that certain
his
willful,
which in-
... may
and malicious conduct
leased
move the court which
vacate,
jured Selinger.
imposed the sentence to
set
aside or correct
the sentence.” The
defense,
If
an available
it is
laches were
statute further provides: “A motion for
here,
in part
not shown
as is demonstrated
may
such
relief
be made at
time.”
majority
Where I differ
opinion.
IV of the
that,
provision
This latter
simply means
think
majority
is that I do not
corpus,
as in habeas
there is no statute
in an action
that laches is ever available
limitations,
judicata,
no res
and that
reasons,
my
I will
type.
this
adumbrate
the doctrine of
is inapplicable.
succinctly.
which can be stated rather
States,
Selinger
415, 420,
In this
failed to list
v. United
358 U.S.
Heflin
schedules,
(1959)
451, 454,
as a creditor
his
79 S.Ct.
laches does Lyman, In In re 166 B.R. envision, ine, nay possibili- a whole host of (Bankr.S.D.Ill.1994), example, for the court protected ties wherein someone should be rejected argument the debtor’s that a dis- against dilatory prejudicial filings. In chargeability complaint “should be dis general, unexceptional, is and when pursuant missed doctrines nothing way, stands in its it is estoppel plaintiffs of laches or since did not even But probably something laudable. complaint year file their until one after way does stand here. receiving notice of debtor’s something phrase That is the of art “at case.” The court did so because Rule time,” any and that all the differ- makes 4007(b) expressly complaint states that the ence ih the world. Here is what the Su- can be filed at time. Id. That tois preme say had to Court about statute where a not listed a say, debtor has credi “ containing phrase: tor, ‘jurisdictional he and time loses The Congress protections’ words which has used are limit that he would otherwise (In ambiguous. provides have. v. Section Glosser Parrish Real Estate (Bankr. Grant), “A prisoner custody
that: under sen- re 160 B.R. S.D.Cal.1993) (citation omitted). ... claiming right tence to be re- Other joined by justices. 1. Justice Stewart was four other effect. are to same
bankruptcy cases
AZER;
(In
Doctor’s Medical
Morcos S.
Moberly),
re
Moberly v. Johnston
See
Laboratory,
Inc.,
(Bankr.N.D.Cal.2001)
Plaintiffs-
187, 190
266 B.R.
Appellants,
(Rule 4007(b)
can be filed at
complaint
“Equita-
laches.
not barred
time
v.
rulings
are not
basis
principles
ble
CONNELL;
Chen;
Kathleen
Ste
John
Bankruptcy
or the
contrary to the
Code
Munso;
Fujimori;
Joseph
Al
ven
P.
Procedure.”);
Bankruptcy
Rules of
Federal
Schaden, Defendants-Appellees.
(In
Santiago
re Santia-
see also Irons
No. 01-55359.
Cir.1994).
(B.A.P.
9th
B.R.
go), 175
Appeals,
United States Court of
approach
in this
is un-
good
The
sense
Ninth Circuit.
in Beezley v.
derscored
the discussion
(In Beezley),
re
Land Title Co.
California
Argued and
March
2002.
Submitted
curiam).
(per
congressional purpose, proper deemed a pears:”What Congress. equities as between debt- balancing of the respect to unlisted or and creditor -with 523(a)(3) in section debts it has enacted is not Code. It for the according to restrike that balance courts to (O’Scann- at 1440 lights.” their own Id. *16 (cid:127) lain, J., concurring). That is true here Congress desired to have the also. Had §by balance and Rule struck affected our notions of equity manifested the doctrine of laches, language it could have insisted on
less immune to those notions than “at time.” many
As defender discovered to keep strongest fortress can dismay, his by those who tunnel under it. I weakened Beaty’s participate invitation to decline 4007(b)’sdonjon. weakening Rule Thus, respectfully I concur the result n only.