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#2276 signed 10-22-96

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

JAMES ALFRED BOHANNAN,

DEBTOR(S).

NO. 96-41490-7

CHAPTER 7

ORDER DENYING MOTION TO FILE COMPLAINT OUT OF TIME

This proceeding is before the Court on the motion of creditor Marvin Dale Wingert "to file complaint objecting to discharge or to determine dischargeability out of time." Despite the motion's label, it actually asks for an extension of time to file such a complaint. Mr. Wingert appears by counsel Steven R. Wiechman. Through counsel Paul D. Post, the debtor objects to the motion. The Court has reviewed the relevant pleadings and is now ready to rule.

The debtor filed a chapter 7 petition on June 28, 1996, listing Mr. Wiechman as an attorney "collecting for an unknown creditor." A few days later, a notice was mailed to Mr. Wiechman informing him of the date set for the meeting of creditors and of the deadline for filing a complaint objecting to discharge or to determine the dischargeability of a debt. A week after that deadline had passed, Mr. Wiechman filed the present motion. He declares that a state court had granted Mr. Wingert a judgment based on the debtor's fraudulent act. Mr. Wiechman also asserts that he "did not file the claim" within the specified time through "excusable error," which he describes as his being absent from his office for an extended period of time in the past two months. The debtor responds that the motion does not show good cause or excusable neglect for the delay in its filing.

Federal Rules of Bankruptcy Procedure 4004(a) and 4007(c), in substantially similar language, provide that complaints objecting to discharge under 11 U.S.C.A. §727 and seeking a determination of dischargeability under §523(c), respectively, must be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to §341. Both rules further provide that extensions of time may be granted for cause but state that motions seeking extensions "shall" be made before the time expires. Rule 9006(b)(3) declares that extensions under Rules 4004(a) and 4007(c) may be granted only under the conditions stated in those rules, thus precluding consideration of late-filed motions under the "excusable neglect" standard in Rule 9006(b)(1). See Ichinose v. Homer Nat'l Bank (In re Ichinose), 946 F.2d 1169, 1176 (5th Cir. 1991) (FRBP 9006(b)(3) excludes "excusable neglect" doctrine from FRBP 4007(c)); cf. Clark v. Brayshaw (In re Brayshaw), 912 F.2d 1255, 1257 (10th Cir. 1990) (Applying FRBP 4003(b), which says an extension of time to object to exemptions must be granted before the original time expires, the Circuit said: "There is simply no room in the wording for construing Rule 4003(b) or Rule 9006(b) to permit granting an extension of time to file objections outside the original thirty-day time limit.").

As recently explained by Judge Rogers, the only exceptions which the Tenth Circuit has recognized to the strict application of these rules are: (1) where the creditor relied on an erroneous notice provided by the bankruptcy court, and (2) where the creditor did not receive adequate notice of the pendency of the bankruptcy case. H.T. Paul Co. v. Atteberry (In re Atteberry), 194 B.R. 521, 523-24 (D.Kan. 1996). Otherwise, a bankruptcy court does not have authority to grant a motion filed after the time period fixed by Rules 4004(a) and 4007(c) has expired. Mr. Wiechman's assertions do not invoke either of these limited exceptions.

Consequently, the motion for additional time to file a complaint must be and it is hereby denied.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of October, 1996.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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