*884 OPINION
This сase was commenced on April 14, 1980, when James and Katharine Magouirk filed a joint voluntary petition under Chapter 7 of the Bankruptcy Code. The Mago-uirks listed the appellants, “Fasson”, as unsecured creditors in their debt schedules. Thereafter, a notice was duly mailed to all scheduled creditors of the Mаgouirk estate, including Fasson. The notice set July 16, 1980 as the last day for filing complaints to determine the dischargeability of debts. The notice also stated that the last day for filing objections to the discharge of thе debtors was August 13, 1980.
When this notice arrived at the offices of counsel for Fasson, it was directed to a “new” associate, who was handling the file. This associate mistakenly believed that the deadline for filing a сomplaint to determine the dischargeability of a debt in this case was August 13th, not July 16th. Pursuant to this belief, counsel for Fasson filed its complaint to determine dischargeability on August 11, 1980, three weeks after the actual deаdline. It was not until Fasson’s counsel received the court’s order dated August 16,1980, dismissing the said complaint, that the еrror in filing was realized.
On August 27, 1980, Fasson filed a motion for permission to make a late filing and for relief from the оrder dismissing its complaint. An order denying Fasson’s motion was entered on October 28,1980. It is from this latter order that Fasson now appeals.
The sole issue presented by this appeal is whether the trial court abused its disсretion in denying the appellants’ motion to make a late filing. In a somewhat different context, the Ninth Circuit has held that “[a] judge abuses his discretion only when his decision is based on an erroneous conclusion оf law, or where the record contains no evidence on which he rationally could have based that decision.”
Premium Service Corp.
v.
Sperry & Hutchinson Co.,
In examining the trial court’s decision in this case, the Panel must look to Rules 409(a)(2) and 906(b) of the Fеderal Rules of Bankruptcy Procedure.
See
12 Collier on Bankruptcy ¶ 409.4, at 4-85 (14th ed. 1978).
But see In re Koritz,
“(b) Enlargement. When by these rules or by a notice given thereunder or by order of cоurt an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon application- made after the expiration of the sрecified period permit the act to be done where the failure to act was the result of еxcusable neglect. ... ”
Although Rule 409(a)(2) does not specifically address extensions requested after the bar date for complaints to determine the dischargeability of a debt, the Panel believes that thеse are permitted pursuant to Fed.R.Bankr.P. 906(b).
See In re Canifax,
In this regаrd, the burden of showing circumstances which would constitute excusable neglect is on the moving party.
See In re Oakton Beach & Tennis Club, Etc.,
*885 The term “excusable neglect” was recently defined in Beneficial Finance Co. of Hartford v. Manning, 4 BCD 304, 305 (D.Conn.Bkrptcy.1978):
“The words, ‘exсusable neglect’, are words of art, and are subject to the interpretation of the trier. This court hаs interpreted ‘excusable neglect’ as meaning the failure to timely perform a duty due to circumstances which were beyond the reasonable control of the person whose duty it was to perform.”
As this definition might imply, the term “excusable neglect” is susceptible of both a liberal and a more restrictivе construction in any given circumstance.
Compare In re Hart,
7 CBC 479 (D.N.J.Bkrptcy.1975);
In re Murphy,
In the instant case, the trial court concluded that duе diligence could have prevented the new associate’s error. Therefore, the failure tо file a timely complaint was not due to circumstances beyond the reasonable control оf the attorneys for Fas-son. The record before the Panel contains sufficient evidence on which the trial court could and did rationally rely in reaching its decision. Thus, although it cannot be denied that anоther court might look upon such a mistake with greater liberality than did the trial court in this case, we do not find that it was an abuse of the trial judge’s discretion to refuse to excuse the conduct of Fasson’s counsеl. Since the language of Rule 409(a)(2) is permissive and that of Rule 906(b) has the effect of limiting review of its application to the abuse of discretion standard, we cannot find error in the trial court’s actions in this proceeding.
Affirmed.
