Benjamin Mitchell appeals from the bankruptcy court’s order and judgment determining that the defendant’s debt to him is not excepted from her discharge. For the reasons discussed below, we reverse and remand to the bankruptcy court for further proceedings.
BACKGROUND
Kathryn Bigelow is the debtor in a chapter 7 case. Daniel P. Mitchell is Kathryn’s ex-husband. Benjamin Mitchell is Daniel’s son and Kathryn’s former stepson. In September of 2002, Benjamin alternated between living with his mother and with his father and stepmother. On September 15, 2002, there was a physical altercation that involved Benjamin and Kathryn. As a result of the physical altercation, Benjamin hurt his arm, which resulted, at a minimum, in a permanent scar. The Department of Human Services conducted an investigation and found that Kathryn was guilty of child abuse. After that, Benjamin lived with his mother, Laurie Novak Town.
The deadline to file a complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(c) was January 13, 2006 and the debtor received her discharge on February 3, 2006. Benjamin turned 18 years of age on November 30, 2006. The complaint commencing this action was filed on October 8, 2007.
The complaint by the two plaintiffs, Daniel and Benjamin, included requests for determinations of exceptions to discharge on unrelated claims. Benjamin alleged that he had been assaulted by the defendant on September 15, 2002; that the defendant’s actions were willful and malicious, which would have given rise to an exception to discharge under 11 U.S.C. § 523(a)(6); that he did not have actual knowledge of the case in time to timely file a request for a determination of discharge-ability under § 523(a)(6); and that his claim should be excepted from discharge pursuant to § 523(a)(3). He also asked that the bankruptcy court authorize him to bring a claim in state court or toll the statute of limitations. 1
Daniel claimed that he was a plaintiff in an action against the defendant in state court, which he had dismissed and he made no allegation of any grounds for excepting his debt from discharge other than a reliance on § 523(a)(3). He asked for the same relief that Benjamin did.
The defendant made a motion to dismiss the complaint as to both plaintiffs on the basis that the complaint was time-barred. The bankruptcy court granted the motion as to Daniel but denied it as to Benjamin.
See Mitchell v. Bigelow (In re Bigelow),
STANDARD OF REVIEW
This appeal turns on the proper legal interpretation of § 523(a)(3) and therefore our review is
de novo. The CIT Group/Equip. Fin., Inc. v. M & S Grading, Inc. (In re M & S Grading, Inc.),
DISCUSSION
A debtor’s chapter 7 discharge discharges most, but not all, of her debts.
Benjamin’s claim arises from the assault that he claims occurred on September 15, 2002. He has identified 11 U.S.C. § 523(a)(6) as a basis for excepting his debt from discharge, claiming that it is a debt for a willful and malicious injury. Unfortunately for Benjamin, § 523(a)(6) is one of the three exceptions to discharge which are not self-effectuating. Section 523(c) provides that the debts described in § 523(a)(6) along with those described in subsections (a)(2) and (4) are discharged unless the bankruptcy court determines that the debt is excepted from discharge. Federal Rule of Bankruptcy Procedure 4007(b), (c) provides that a complaint requesting the bankruptcy court to make such a determination must be filed no later than 60 days after the first date set for the meeting of creditors. Obviously, that time had long expired before Benjamin filed his complaint. Thus, any claim that was based solely on § 523(a)(6) is time-barred.
However, Congress has specifically provided for situations like this one. It created a separate exception to discharge, which is self-effectuating, for any debt:
[Njeither listed nor scheduled under section 521(a) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit—
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request.
11 U.S.C. § 523(a)(3)(B). The purpose of this provision is to “[protect] creditors who missed the deadline for filing § 523(c) complaints because they were not properly scheduled.”
Everly,
In a situation where the debt is for a willful and malicious injury and the creditor was not listed or scheduled and did not have notice or actual knowledge of the case in time, that creditor’s claim is not discharged. The statute makes clear, and we have previously held, that while
Since no one claims that Benjamin had actual knowledge of the case in time to timely file a complaint under § 523(c), Benjamin’s claim for an exception to discharge has two components. First, he must demonstrate that his debt was the result of a willful and malicious injury by Kathryn.
Everly,
Other than the reference to actual notice, which is not at issue here, § 523 says nothing about any requirement of the debtor to give notice. In fact, the responsibility for giving notice falls on the clerk of court, not the debtor. Specifically,
In other words, the clerk gives notice by mail to creditors who appear on the debtor’s schedules and mailing matrix. Obviously the clerk uses the information provided by the debtor in determining to whom to mail notice. That is one of the reasons why one of the debtor’s obligations is to file a list of creditors. 11 U.S.C. § 521(a)(1)(A). To address the situation where a creditor is a minor, the Supreme Court has promulgated Fed. R. Bankr.P. 1007(m). Because Benjamin is the creditor, the statute requires that he be listed. Rule 1007(m) provides that if the debtor knows that a person on the list of creditors or schedules is an infant 7 or incompetent person, the debtor shall also include the name, address, and legal relationship of any person upon which process would be served in an adversary proceeding against the infant or incompetent person in accordance with Rule 7004(b)(2). Because Kathryn knew that Benjamin was a minor, she was required to list Benjamin’s name and his address, and the name, address, and relationship of another person, who would meet the criteria set out in Rule 7004(b)(2). Even assuming that Kathryn is right that in an adversary proceeding she could have served Daniel as Benjamin’s parent, 8 she did not comply with her duties as a debtor because she neither listed Benjamin nor, when she listed Daniel, did she indicate his relationship to Benjamin. Section 523 helps enforce these requirements by conditioning discharge-ability of a debt on proper scheduling or listing by the debtor.
So the proper inquiry in this case is not one of notice, but one of listing. Admittedly, Kathryn did not list or schedule Benjamin at all even though she knew his name. Nor did Kathryn list anyone in his or her capacity as Benjamin’s legal representative.
CONCLUSION
Congress has charged debtors with the duty to list creditors, which the clerk then uses to provide notice in accordance with Fed. R. Bankr.P. 2002(f). The burden falls on the debtor to list
all
creditors. A creditor is the holder of a claim, and a claim is a right to payment, even if it is unliquidated or disputed. 11 U.S.C. § 101(10); 11 U.S.C. § 101(5). Thus, in listing or scheduling creditors, it is inappropriate for the debtor to make decisions about whether or not there is any merit to the creditor’s claim. It is incumbent upon the debtor to list each and every entity which has or may assert a claim against her. Kathryn obviously knew Benjamin’s
Notes
. The request for authority to file a claim in state court is totally unnecessary and was not addressed by the bankruptcy court.
In
re
Honeycutt,
. A debt is liability on a claim, and a claim includes any right to payment, even if it is disputed. 11 U.S.C. § 101(12); 11 U.S.C. § 101(5)(A).
. Admittedly, since the exceptions are all factually and legally based, a dispute may arise between the debtor and the creditor regarding whether the debt was discharged or not. Then one of them may have to resort to a court to determine whether the legal and factual predicates for an exception to discharge exist and therefore determine whether the debt was discharged or not.
. Obviously in cases like this there is a major overlap between determining "the merits” and determining whether there was a willful and malicious injury.
.
City of New York v. New York, N.H. & H.R. Co.,
. Aetna Cas. & Sur. Co. Of Ill. v. Wilson (In re Wilson),
. "Infant” is the legal word for a person under the age of majority. We have used the synonymous, but more common, word "minor.”
. Because the bankruptcy court ruled in Kathryn's favor on the issue of proper scheduling, it did not decide whether there was a debt for a willful and malicious injury.
. Because of our disposition of this appeal on other grounds, we need not delve into the issue of whether Iowa law would allow service of process on a parent with whom a minor does not reside and from whom the minor is estranged.