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#2071

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

DONALD G. ATTEBERRY,

DEBTOR(S)

NO. 93-40866-7

CHAPTER 7

H.T. PAUL CO., INC., and HOWARD T. PAUL,

PLAINTIFFS,

v.

DONALD G. ATTEBERRY,

DEFENDANT

ADV. NO. 93-7147

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT DENYING

MOTION FOR AN EXTENSION OF TIME, FILED IN THE MAIN CASE, AND

GRANTING THE DEBTOR'S MOTION TO DISMISS, FILED IN THE

ADVERSARY PROCEEDING

Both the main case and the above-captioned adversary proceeding are before the Court. Creditors Howard T. Paul and H.T. Paul, Inc., have filed a motion asking the Court to alter or amend the judgment it entered in December 1993 denying their motion in Case Number 93-40866 for an extension of the time to file a complaint pursuant to 11 U.S.C.A. §§523 and 727, and granting the debtor's motion to dismiss Adversary Number 93-7147. The creditors are represented by Michael B. Myers. The debtor is represented by Justice B. King. The Court has reviewed the relevant pleadings and is now ready to rule.

The facts were extensively recited in the Court's Memorandum of Decision and will not be repeated here. For present purposes, it is sufficient to explain that the creditors filed a motion and obtained an order for an extension of the time to file a complaint under 11 U.S.C.A. §523 or 727 in the bankruptcy case of the debtor's business when they intended to file it in his personal case, and the Court ruled that by the time they had discovered their mistake, it could not be corrected.

The creditors first dispute the Court's conclusion that "nothing in the body of the motion [for extension of time] indicates the caption is incorrect." They assert the motion in fact contains a number of indications that it was intended to be filed in the debtor's personal bankruptcy case. The motion stated it was the first request for an extension of time and sought to extend a 1993 deadline. The motion referred to contacts with the debtor's counsel regarding the requested extension. The plural possessive of the word "debtor" was used in the motion. Finally, the certificate of service showed the motion had been served on the trustee for the personal rather than the corporate case and on certain attorneys "recently involved" in the personal case, including two who had filed a dischargeability complaint on behalf of other creditors. The Court is not persuaded by these references. None of them give any indication that the motion might have been intended to be filed in a different case than that referred to in the caption, except to someone with significant additional knowledge about the cases. They are certainly less indicative of an error than the fact such a motion was meaningless in the corporate case, and the Court has already rejected this fact as justifying relief here. The Court actually referred to the content of the motion only to indicate that the content gave neither the Court nor the Clerk any reasonable basis to ascertain that the motion was improperly captioned.

The creditors contend they are entitled to relief under 11 U.S.C.A. §105(a), which gives the Court equitable power to issue orders necessary to carry out the provisions of title 11. However, the Supreme Court has said any equitable powers remaining in the bankruptcy courts are limited by the provisions of the Bankruptcy Code. See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988). The Federal Rules of Bankruptcy Procedure similarly restrict the Court's power under §105(a). Rules 4007(c), 4004(b), and 9006(b)(3) strictly confine the Court's power to grant extensions of time for filing complaints under §§523 and 727, and as explained in the Memorandum of Decision, preclude excusing the creditors' mistake here.

The creditors contend the Court has not addressed their arguments about "the clerical nature of the defects in the motion's caption." The Court had not previously commented directly on this part of the creditors' brief because it believed the cited cases were not relevant to this case. The Court has again reviewed the cases cited and remains convinced they are distinguishable and have no application here. All but one involved documents filed or attempted to be filed in the correct case before the deadlines in Rules 4007(c) and 4004(a) had passed. See In re Chandler, 139 B.R. 817 (Bankr.S.D.Miss. 1992); In re Brenesell, 109 B.R. 412 (Bankr.D.Hawaii 1989); In re Pace, 130 B.R. 338 (Bankr.N.D.Fla. 1991); In re Barnes, 96 B.R. 833 (Bankr.N.D.Ill. 1989); In re Smith, 42 B.R. 927 (Bankr.D.Mass. 1984). The other case involved a motion filed in the correct case but incorrectly labeled as a "Motion for Reconsideration" rather than a motion for relief from judgment. In re Carmassi, Inc., 121 B.R. 735 (Bankr.W.D.Pa. 1990). None involved a document that was captioned with the wrong case name and number and contained nothing to indicate it should have been captioned for a different case. The Court is still aware of only one factually similar case, In re Beam, 73 B.R. 434 (Bankr.S.D.Ohio 1987), cited in the Memorandum of Decision; that court also dismissed the dischargeability complaint.

The creditors also complain the Court did not address their argument under FRBP 7015. A motion for extension of time under Rules 4007(c) and 4004(b) is a contested matter governed by Rule 9014, which makes some of the adversary rules applicable to contested matters but not Rule 7015. Furthermore, the cases the creditors cite in support of this argument are distinguishable. One involved documents filed in the correct bankruptcy case but not in the proper form. See In re Levine, 132 B.R. 464 (Bankr.M.D.Fla. 1991). The other addressed the proper method for determining when the time period fixed by Rule 4007(c) expired. In re Welso, 138 B.R. 630 (Bankr.M.D.Fla. 1992). Neither concerned the question whether a document filed in the wrong case should be treated as if it had been filed in the right case.

Finally, the creditors insist they were misled by the debtor's counsel when he signed a proposed order granting an extension of time in the corporate case. This argument overlooks the fact the Court also signed a similar order submitted without the signature of the debtor's counsel. The creditors argue counsel's signing of a meaningless order violated Federal Rule of Civil Procedure 11 and FRBP 9011. Civil Rule 11 does not apply in bankruptcy, but Bankruptcy Rule 9011 is substantially similar. The Court does not believe counsel violates the rule by signing a proposed order granting relief which is meaningless but to which he does not object.

For these reasons, the creditors' motion to alter or amend the Memorandum of Decision and Judgment entered in December 1993 is hereby denied.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of August, 1994.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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