When defendant-appellant Dr. Bruce S. Smith filed a Chapter 7 bankruptcy petition in September 2005, he failed to include appellees Trina Tidwell and Sandra Sterling-Ahlla on his schedule of creditors holding unsecured, nonpriority claims. Tidwell and Sterling-Ahlla had sued Smith in state court for sexual assault. Because Smith omitted Tidwell and Sterling-Ahlla from his list of creditors, neither of them was sent notice of his bankruptcy petition. Their counsel learned of Smith’s pending bankruptcy only weeks before his discharge and took no action at that time.
Roughly one year after the discharge, Tidwell and Sterling-Ahlla (whom we shall also refer to as the “plaintiffs”) filed motions asking the bankruptcy court for leave to proceed with their lawsuits against Smith, along with adversary complaints asking the court to declare their claims against Smith nondischargeable pursuant to 11 U.S.C. § 523(a)(3)(B) and (a)(6). Following an evidentiary hearing, the court granted their request in part. The court found that Smith had deliberately and fraudulently failed to schedule the
Smith again appeals, contending that the evidence does not support the bankruptcy court’s findings that he deliberately omitted Tidwell and Sterling-Ahlla from his schedule of unsecured creditors and that they did not become aware of his bankruptcy in time to seek a declaration of nondischargeability before the bankruptcy proceeding was closed. We agree with the lower courts that the eleventh-hour notice of the bankruptcy that Tidwell and Sterling-Ahlla received did not afford them sufficient time in which to protect their rights before Smith was discharged. Their post-discharge complaints were therefore timely, and we affirm on that basis without reaching the question of whether Smith omitted Tidwell and Sterling-Ahlla from his list of unsecured creditors with fraudulent intent.
I.
Tidwell аnd Sterling-Ahlla separately filed suit against Smith in the Circuit Court of Cook County, Illinois on December 18, 2003. Each alleged that Smith, a physician specializing in obstetrics and gynecology, had unlawfully engaged in sexual intercourse with her during a routine prenatal examination.
Smith first sought the protection of Chapter 7 in a petition filed on June 24, 2004. By the terms of 11 U.S.C. § 521(1) and Fed. R. Bankr.P. 1007(a)(1), he was required to identify all creditors holding unsecured, nonpriority claims on Schedule F of his petition. The clerk of the bankruptcy court in turns sends notice of the filing of a bankruptcy petition to all identified creditors, including those on Schedule F. See Fed. R. Bankr.P.2002. Smith did not list Tidwell and Sterling-Ahlla by name on that schedule, but he did list their attorney, Darryl Robinson, indicating (incorrectly) that Robinson represented the unidentified plaintiffs in a “medical malpractice claim.” Bankr.No. 04-23845, Doc. No. 1 at 6. Robinson, presumably, received notice of the petition as a result: the service list for the notice of bankruptcy mailed on June 25, 2004 indicates that he was among those creditors who were served with notice. Id., Doc. No. 5 at 3. 1 However, the bankruptcy court dismissed the 2004 petition on the motion of the United States Trustee, who argued that in view of Smith’s ongoing employment, substantial income, and unreasonably high monthly expenses, discharging his debts pursuant to Chapter 7 rather than funding a repayment plan pursuant to Chapter 13 would amount to a “substantial abuse” of Chapter 7’s provisions. See 11 U.S.C. § 707(b). The case was dismissed on November 23, 2004, and the proceeding was closed and the trustee was discharged on January 31, 2005.
After Smith’s financial situation deteriorated further with the loss of his job, he
Section 523(a)(6) of the Bankruptcy Code exempts from discharge any debt “for willful or malicious injury by the debt- or to another entity or to the property of another entity,” and because the lawsuits filed by Tidwell and Sterling-Ahlla allege that Smith sexually assaulted them, their claims against Smith are potentially non-dischargeable under that provision.
See generally Kawaauhau v. Geiger,
Tidwell and Sterling-Ahlla were first placed on notice of Smith’s bankruptcy in late December 2005, when the attorneys defending Smith in their lawsuits filed motions asking the state court to transfer the suits to that court’s bankruptcy calendar. Copies of these motions were served by fax on Robinson, the attorney representing Tidwell and Sterling-Ahlla, on December 23, 2005, the day after they were filed. Robinson was out of town on December 23, and he remained unaware of the motions until he returned to his office on or about January 4, 2006. Beyond stating generally that Smith had filed a bankruptcy petition and that notiсe of the bankruptcy had been issued, the motions did not provide any information about the status of the bankruptcy — e.g., when or whether there had been a creditors’ meeting or by what date objections to the dischargeability of a debt were due. The state court granted Smith’s motion on January 6, 2006, and the two lawsuits were placed on dormant status on the court’s bankruptcy calendar.
Just shy of a year later, on December 20, 2006, Tidwell and Sterling-Ahlla filed motions with the bankruptcy court seeking a declaration that Smith’s discharge had no effect on their lawsuits and that they were free to proceed against Smith in state court. The motions noted that because Smith had omitted Tidwell and Sterling-Ahlla from his list of unsecured creditors despite knowing of their suits, they remained ignorant of his bаnkruptcy petition until he asked the state court to transfer their suits to the bankruptcy calendar. The bankruptcy court continued the hearing on the motions in order to allow Tid-well and Sterling-Ahlla to prepare adversary complaints against Smith, which they filed on January 8, 2007. As amended, the complaints alleged that because Smith had committed the intentional tort of sexual assault and was subject to punitive damages, their claims were exempt from discharge pursuant to section 523(a)(6) and that they were entitled to a declaration to that effect. Alternatively, the complaints sought relief under section 727, which in relevant part permits a creditor within one year of the discharge to ask that the discharge be revoked on the ground that it was obtained through the debtor’s fraud. See § 727(d)(1) and (e)(1). 2 The bankruptcy court denied Smith’s motion to dismiss the complaints as untimely and set the complaints and the motions for leave to proceed with the state-court lawsuits down for a hearing on the merits.
The court subsequently received testimony regarding both the omission of Tid-well and Sterling-Ahlla from the list of Smith’s unsecured creditors and the notice that their attorney, Robinson, had received in December 2005 regarding the request to transfer their suits to the state court’s bankruptcy calendar. On the latter point, Chykola Jones, the office clerk at Robinson’s law firm, testified that it was her practice to place incoming correspondence, including faxes, on the recipient’s desk. Jones also testified that she is not an attorney and has not worked for attorneys who practiced bankruptcy law, and thus would not have appreciated the significance of the motions to transfer that were faxed to Robinson. Smith’s bankruptcy attorney, Nathaniel Sinn, then testified regarding the preparation of Smith’s second bankruptcy petition. At the time he prepared that petition in 2005, Sinn worked for the Chicago office of Legal Helpers, a firm that specializes in consumer bank
After hearing the evidence, the bankruptcy court concluded that the plaintiffs were entitled to proceed in state court against Smith, and it entered an order to that effect. Two key findings led the court to that conclusion.
First, the court found that Smith’s omission of Tidwell and Sterling-Ahlla from the Schedule F he filed was deliberate rather than inadvertent. When Smith signed the 2005 petition, he subscribed to an oath that he had read the schedules included with the petition and that they were true and correct to the best of his knowledge.
Second, although the plaintiffs’ counsel, Robinson, did receive notice of the 2005 bankruptcy before the deadline for objecting to the dischargeability of any debt expired and before Smith was granted a discharge, the court deemed the notice too late and insufficiently enlightening to obligate Robinson to act at that time.
Id.
at 327-30. The court acknowledged that, pursuant to section 523(a)(3)(B), an unscheduled, nondisehargeable debt will be discharged so long as the creditor had notice or actual knowledge of the bankruptcy in time to object to the discharge-ability of the debt.
Id.
at 326. The court summarily rejected as “absurd” Smith’s assertion that because the plaintiffs’ claims were scheduled in his 2004 bankruptcy petition, Tidwell and Sterling-Ahlla somehow should have known of his 2005 petition, notwithstanding the fact that they were never served with notice of the second petition as a result of their omission from his list of creditors.
Id.
at 324. On the other hand, the court did agree that when Robinson’s office was served by fax on December 23, 2005, with a copy of Smith’s motion to transfer the two suits to the state court’s bankruptcy calendar, he was provided with actual notice of the pending bankruptcy, and through him Tid-well and Sterling-Ahlla were also given notice.
Id.
at 327. But due process entitled the plaintiffs to reasonable notice.
Id.
at 326-27. In the court’s view, that meant notice which alerted the plaintiffs to key deadlines in time enough for them to take action in compliance with those deadlines.
Id.
at 327-30. By the time Robinson received the fax, Smith’s bankruptcy petition had been pending for nearly ninety days, the creditors’ meeting had been held more than a month earlier, and the deadline for filing objections to the dischargeability of a debt was just sixteen days off.
See
The bankruptcy court consequently deemed Count I of the plaintiffs’ adversary complaints to have been timely filed and allowed their complaints to stand as an objection to dischargeability pursuant to sections 523(a)(3)(B), 523(a)(6), and
Smith appealed to the district court, which affirmed the bankruptcy court’s decision.
II.
We have jurisdiction to review the district court’s affirmance of the bankruptcy court, provided that the bankruptcy court’s order is appropriately characterized as a “final” decision. 28 U.S.C. § 158(d)(1);
see Zedan v. Habash,
Because our review in a bankruрtcy appeal is plenary, we apply the same standards that the district court did in reviewing the bankruptcy court’s decision.
Wiese v. Cmty. Bank of Cent. Wis. (In re Wiese),
Smith’s initial challenge is to the bankruptcy court’s factual determination that his failure to schedule Tidwell and Sterling-Ahlla’s lawsuits was fraudulent, but we need not decide whether or not that finding was clearly erroneous. Fraud is a prerequisite to revocation of the debt- or’s discharge pursuant to section 727(d)(1).
E.g., Citibank, N.A. v. Emery, supra,
Smith also argues that despite his failure to include them in his Schedule F, Tidwell and Sterling-Ahlla were on notice of his 2005 bankruptcy petition and thus were obliged to seek relief from the bankruptcy court before he was discharged. He relies principally on the motion to transfer Tidwell and Sterling-Ahlla’s lawsuits to the state court’s bankruptcy calendar that was served on their attorney by fax on December 23, 2005. Smith asserts that the motion made the plaintiffs aware of the pending bankruptcy proceeding in time enough for them to object to the discharge of their claims before the bar date. He secondarily contends that because Tidwell and SterlingAhlla were previously identified (through their attorney) as unsecured creditors on Schedule F of his 2004 petition, they should somehow have been aware of his 2005 petition.
The adequacy of the notice that Tidwell and SterlingAhlla received presents a mixed question of law and fact, in that it calls for the application of legal standards to the unique facts of this case.
See Thomas v. Gen. Motors Acceptance Corp.,
We agree with both the bankruptcy and district courts that the motion to transfer did not supply Tidwell and Sterling-Ahlla with adequate notice of Smith’s second bankruptcy, such that they were required to act before Smith was discharged and the bankruptcy proceeding was closed. Although it is undisputed that the plaintiffs’ attorney did become aware of the pending bankruptcy as a result of that motion, and that he acquired that knowledge while there was still some time left in the bankruptcy proceeding for Tid-well and Sterling-Ahlla to file proofs of claim and to seek a declaration that their claims were nondischargeable, this alone does not establish that the notice was adequate. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Trust Co.,
The motion to transfer did not serve these interests. Robinson’s office did not receive a copy of the motion to transfer until December 23, 2005, almost ninety days after Smith filed his bankruptcy petition and well over a month after the creditors’ meeting on November 8, 2005. The motion revealed little more than the pen-dency of Smith’s bankruptcy; it said nothing as to when the bankruptcy was filed, whether or whеn a creditors’ meeting had taken place, or when objections to discharge or to the dischargeability of any debt were due. Thus, Robinson had no way of knowing without further investigation how much time remained for Tidwell and Sterling-Ahlla to preserve their rights as creditors. Because the notice was given only sixteen or seventeen days before the deadline for dischargeability complaints
(see
n.3, supra), there was little time left at that point for Robinson to investigate the bankruptcy, ascertain the relevant deadlines, and take appropriate action before the bar date in January. Moreover, Robinson is not a bankruptcy specialist; he is a personal injury attorney. Even if he had seen the notice on December 23, 2005 (rather than on January 4, 2006 when
The notion that Sterling-Ahlla and Tid-well were on inquiry notice that Smith might have filed a bankruptcy petition in 2005 because their attorney had been scheduled and notified of his 2004 petition is untenable. The 2004 рetition had been dismissed for “substantial abuse” of the Chapter 7 process in light of Smith’s income and expenses at that time. It was not inevitable that Smith would file a second petition, and of course the plaintiffs had no way of divining
when
he might do so.
See Mountain West Fed. Credit Union v. Stradinger (In re Stradinger),
Bankr.No. 05-65113-7,
Because Tidwell and Sterling-Ahl-la were not given timely and sufficient notice of Smith’s bankruptcy for them to file complaints to determine the nondis-chargeability of their claims in compliance with the schedule set by the bankruptcy court, they remained free to file such complaints at any time. Fed. R. Banker. P. 4007(b);
Staffer v. Predovich, supra,
Under these circumstances, the bankruptcy court appropriately exercised its disсretion to allow the state-court cases against Smith to proceed. It committed no error in finding that Tidwell and Sterling-Ahlla received insufficient notice of Smith’s petition to have compelled them to take action to preserve their rights before the bar date and before Smith was discharged; their post-discharge adversary complaints and requests for leave to proceed with the state-court litigation were therefore timely.
Affirmed.
Notes
. Although the statute and bankruptcy rules require a debtor to identify his creditors by their own names, rather than by their representatives, the bankruptcy court found that notice to Robinson constituted notice to his clients.
. Although the complaints also cited section 726 of the Bankruptcy Code, it was obvious, as the bankruptсy court recognized, that the plaintiffs meant to rely on section 727, which deals with the discharge of the debtor.
. The court was assuming that the deadline for objecting to the dischargeability of a debt was January 8, 2006, although the notice sent to creditors had specified January 9, 2006, as the deadline.
. As a number of courts, including our own, have indicated, the debtor's mental state in omitting a known creditor may be relevant to the question of whether an unscheduled debt that was otherwise dischargeable under 523(a)(3)(A) was, in fact, discharged.
See Stark v. St. Mary’s Hosp. (In re Stark),