ORDER
Plaintiffs filed the above-styled adversary complaint to determine the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(2). It is before the Court on Defendant-Debtors’ Motion to Dismiss and Plaintiffs’ Motion for Change of Venue. For the following reasons, the Court will deny both Motions.
A. MOTION TO DISMISS
Defendant-Debtors move to dismiss the instant complaint on the ground that it is untimely. Bankruptcy Rule 4007(c) provides that
A complaint to determine the discharge-ability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired.
In the case sub judice, the Clerk’s Office generated by computer and caused to be served on all creditors and parties in interest an “Order for Meeting of Creditors, Combined with Notice Thereof and of Automatic Stay” dated November 21, 1988 in which December 19, 1988 was set for the meeting of creditors and February 17, 1989 was given as the last day to file complaints pursuant to § 523(c). That Order and Notice also listed the name of the interim trustee. Later it was discovered that the interim trustee had a conflict and could not serve in the case.
Upon notice of the conflict, the Clerk’s Office then generated by computer and caused to be served on all creditors and parties in interest another “Order for Meeting of Creditors, Combined with Notice Thereof and of Automatic Stay” dated January 9, 1989. This new Order and Notice set the meeting of creditors for February 1, 1989 and gave April 3, 1989 as the last day to file complaints pursuant to § 523(c). It also listed the name of the new interim trustee. “A.D. Kahn, Bankruptcy Judge” appeared at the bottom of both the first and second Order. In reliance upon this second Order and Notice, Plaintiffs filed the instant complaint on March 31, 1988.
It is clear that the Clerk’s issuance of the second Order and Notice containing a new bar date was erroneous in that it violated Bankruptcy Rule 4007(c). Pursuant to that Rule, the last day to file complaint under § 523(c) is “60 days following the first date set for the meeting of creditors.” (emphasis added). That date can only be extended “[o]n motion of any party in interest after hearing on notice.” Bankr.Rule 4007(c). The motion must be made prior to the expiration of the bar date. Id.
The question remains: Which party must bear the consequences of the Clerk’s mis *818 take? The Court has carefully examined the cases on point. The general trend of the cases is to strictly enforce Bankr.Rule 4007(c). The Eleventh Circuit Court of Appeals has stated that
The dictates of the Code and Rules are clear. It is not our place to change them. Under Rule 4007(c), any motion to extend the time period for filing a dischargeability complaint must be made before the running of that period. There is “almost universal agreement that the provisions of F.R.B.P. 4007(c) are mandatory and do not allow the Court any discretion to grant a late filed motion to extend time to file a dischargeability complaint.” See In re Maher,51 B.R. 848 , 852 (Bankr.N.D.Iowa 1985) (and cases cited therein).
Byrd v. Alton (In re
Alton),
The
Alton
case did not deal with a clerical error as in the proceeding
sub judice.
The cases dealing with clerical errors are split as upon whom the burden of the error should fall. In
Montgomery Ward and Co. v. Gardner (In re Gardner),
In
Neeley v. Murchison,
[i]n today’s case Neeley was not notified of the exact bar date but he knew of the bankruptcy proceedings. Neeley’s counsel received notice of the date of the initial meeting of creditors and in fact attended the meeting. Indeed, even before the meeting, Neeley had himself obtained a modification of the stay from the bankruptcy court. At that time, the factual basis of his objection, the fraudulent conduct of the debtor, was established. Under these circumstances, counsel’s reliance on the blank in the form and on the oral assurances from the clerk’s employees was misplaced. At the very least, Rule 4007(c) plainly requires that a creditor file his § 523(c) complaint, or his motion for extension, within 60 days from the date set for the initial creditors’ meeting.
Neeley,
Although
Neeley
seems to stand for the proposition that the deadline for complaints contained in Bankr.Rule 4007 must be strictly enforced under all circumstances, it does contain a footnote which supports an exception to the rule under facts similar to those present in the proceeding
sub judice.
In Footnote 5, the Court noted that “[f]or example, today’s case is not one in which the clerk gave an affirmative but erroneous notice of a bar date upon which the creditor might reasonably have relied.”
*819
A case which has similar facts to this proceeding is
Francis v. Riso (In re
Riso),
The district court upheld the bankruptcy court’s refusal to dismiss the complaint as untimely. “This court concludes the bankruptcy court has the inherent equitable power to correct its own mistake to present [sic] an injustice. Based on the facts in the present case, this court believes that an injustice would occur if plaintiff Francis were not allowed to file his objection to discharge.”
Riso,
The Court agrees that, in almost all instances, Bankr.Rule 4007(c) should be strictly enforced. The Court will only step in under extreme circumstances with its equitable powers under § 105 to relieve a party from Rule 4007(c)’s explicit time table. However, where the clerk issues a second § 341 notice containing a new bar date prior to the expiration of the first bar date and there is no reason for a creditor to question the second notice, this Court’s equitable powers will be used to prevent an injustice. Therefore, the Court will deny Defendant-Debtors’ Motion to Dismiss.
B. MOTION FOR CHANGE OF VENUE
Plaintiffs seek a change of venue of this proceeding from the Northern District of Georgia to the Eastern District of Michigan. In support of their Motion, Plaintiffs state that all of the acts upon which the debt in question is based took place in the state of Michigan and all of the witnesses, except for Defendant-Debtors, reside in Michigan. Plaintiffs allege that Defendant-Debtors “moved to Atlanta primarily to file bankruptcy in an area remote from their creditors in order to frustrate potential efforts to defeat the dischargeability of their debts.” Plaintiffs’ Brief in Support of Motion for Change of Venue at 2.
In opposition to the Motion for Change of Venue, Defendant-Debtors assert that they moved to Atlanta, Georgia in May of 1986 in order to obtain employment, which was approximately two and one-half years prior to their filing bankruptcy. They further assert that a change in venue would be inconvenient and impose a great financial burden upon them. They also state that Defendant-Debtor Haya Hershkovitz has been ill and that travel would pose a medical risk to her.
From the record before the Court, it appears that Defendant-Debtors’ liability has been fixed pursuant to a Consent Judgment entered on or about January 21, 1987 by the Circuit Court for the County of Oakland, Michigan. See Consent Judgment attached as Exhibit C to Plaintiffs’ Complaint. Although the Consent Judgment determined the amount of Defendant-Debtors’ liability, it reserved the issue of fraud. The Judgment provides that “[t]he Court specifically makes no finding with respect to Plaintiffs’ claim that the damages suffered by them were caused by the fraudulent acts of Defendants preserving a determination of that question for some future court should the question arise.” Consent Judgment at 2. This Consent Judgment was entered after Defendant-Debtors had moved to Atlanta.
*820
After considering the relevant factors discussed in
Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co., {In re Commonwealth Oil Refining Co.),
In accordance with the reasoning above, IT IS THE ORDER OF THE COURT that Defendant-Debtors’ Motion to Dismiss be, and the same hereby is, DENIED.
IT IS THE FURTHER ORDER OF THE COURT that Plaintiffs’ Motion for Change of Venue be, and the same hereby is, DENIED.
IT IS SO ORDERED.
