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#1976 Aff'd 194 B.R. 521 (3-29-96) (Rogers, J.)



In Re:



NO. 93-40866-7







ADV. NO. 93-7147





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 in the main case a motion for an extension of the time to file a complaint under 11 U.S.C.A. §523 or 727, and, for reasons explained below, have also requested a nunc pro tunc order giving them an extension. The debtor opposes their motion and request. In the adversary proceeding, the debtor has filed a motion to dismiss the complaint as untimely filed. 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.


In 1991, Donald G. Atteberry, D.V.M., P.A., a veterinary medicine business, filed a chapter 11 bankruptcy, Case No. 91-40357. That case was later converted to chapter 7. Dr. Atteberry filed his personal bankruptcy case in 1993. Justice B. King represents both the doctor's business and the doctor as an individual. The creditors, Howard T. Paul and H.T. Paul, Inc., have an interest in each case.

Mr. Myers had discussed with Mr. King the possibility of obtaining an extension of the time for filing a complaint under §727 objecting to the doctor's discharge or under §523 to except the creditors' debts from discharge. Mr. King advised him that the doctor had given him no authority to agree to an extension. Some time later, still within the time to file a complaint in the personal case, Mr. Myers prepared and sent to Mr. King and the Court a motion for extension of time to file an objection or exception to discharge in the business case. Despite Mr. Myers' argument based on the use of the plural possessive "debtors'" in the motion, the Court is convinced that nothing in the body of the motion indicates that the caption was incorrect. Mr. Myers signed and submitted a proposed order--also captioned for the business case--granting the motion, and the Court entered it, extending the time in that case to September 20, 1993. Pleading Number 141.

About the same time as he submitted the proposed order in the business case that became pleading number 141, Mr. Myers sent Mr. King another proposed order, also captioned for the business case, to grant the same relief. When he received it, Mr. King realized that Mr. Myers had probably made an error in seeking the extension in the business case; however, since he had no objection to that relief, he signed the proposed order and it was forwarded to the Court. As indicated, Mr. King had no authority to agree to an extension in the doctor's personal case. The Court caused this agreed order to be entered as well. Like the motion, the orders contain nothing that indicates Mr. Myers intended for them to be entered in a case other than the one named in the caption.

On September 20, 1993, Mr. Myers filed a complaint in connection with the personal case, No. 93-40866-7, asserting claims for the creditors under §§523 and 727 of the Bankruptcy Code. This pleading was assigned adversary proceeding number 93-7147. At the same time, he filed a motion for more time to object to discharge and dischargeability pending additional discovery in connection with the complaint, stating that this was the second extension he had requested. Mr. King promptly objected to the extension request, contending the time for making such objections had already expired. On the day the doctor's answer was due in the adversary proceeding, Mr. King filed a motion to dismiss the complaint as untimely. In response to the objection to the extension-of-time request in the personal case, Mr. Myers asked the Court to enter an order nunc pro tunc deeming the motion and orders that were filed in the business case to have been filed in the personal case. Mr. King has opposed this request. The parties have now fully briefed the propriety of the motion for extension of time and the motion to dismiss.


Federal Rules of Bankruptcy Procedure 4004(a) and 4007(c), in substantially similar language, provide that complaints under 11 U.S.C.A. §727 and §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. FRBP 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 FRBP 9006(b)(1). See In re Ichinose, 946 F.2d 1169, 1176 (5th Cir. 1991) (FRBP 9006(b)(3) excludes "excusable neglect" doctrine from FRBP 4007(c)); cf. 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.").

Unless there is something unique that requires a different result here, the law is clear that untimely complaints are subject to dismissal. In re Harten, 78 B.R. 252, 254 (9th Cir. B.A.P. 1987); In re Strickland, 50 B.R. 17 (Bankr.M.D.Ala. 1985); In re Barr, 47 B.R. 334, 335-36 (Bankr.E.D.N.Y. 1985). Even in a case where a motion for an extension of the time to file a dischargeability complaint was made before the time expired but was filed in an unrelated case because the caption contained the wrong name and case number, a motion to dismiss the complaint was nevertheless granted. In re Beam, 73 B.R. 434, 435-37 (Bankr.S.D.Ohio 1987). Although the mistake in this case is somewhat more understandable since the motion for extension was filed in a related case and might seem more excusable because the debtor's counsel had notice of the motion, the fact remains that the pleading did not seek an extension and was not filed in this case because the creditors' counsel erred. See In re Alton, 837 F.2d 457, 458-61 (11th Cir. 1988) (late-filed motion for extension under Rule 4007(c) could not be granted even though debtor deprived creditor of official notices from bankruptcy court by omitting him from list of creditors and deprived him of §523(a)(3) claim by mailing him notice of bankruptcy filing and automatic stay).

The creditors ask the Court to apply FRBP 9024, and through it Federal Rule of Civil Procedure 60(b), and allow relief on the basis of mistake, inadvertence, suprise, or excusable neglect, and possibly misconduct or misrepresentation by the adverse party. Certainly, the combination of FRBP 4004(b) and 4007(c) with 9006(b)(3) would seem to bar any consideration of mistake, inadvertence, surprise, and excusable neglect for motions filed after the time has run. To apply FRCP 60(b) in this manner would be to nullify the clear meaning of specific rules governing the time to file complaints objecting to discharge or dischargeability, which expressly exclude excusable neglect as a basis for allowing an extension of time that was sought too late. See In re Rhodes, 61 B.R. 626, 629 n.2 (9th Cir. B.A.P. 1986) (specific provisions of FRBP 4007(c) and 9006(b)(1) and (3) make the excusable neglect provision of FRBP 9024 and FRCP 60(b) inapplicable). Mr. Myers alleges that the Court or the Clerk of the Court made a clerical error, and cites the Tenth Circuit's recent decision in In re Themy, 6 F.3d 688 (1993). Although Themy indicates the Court could allow a late-filed motion in order to correct the Court's own error, no such error is shown in this case. Counsel erroneously captioned the pleadings. The Court signed the proposed orders as Mr. Myers prepared them, and the Clerk correctly filed the orders as captioned. Neither the Court nor the Clerk committed any error.

Mr. Myers alleges that Mr. King owed some duty to him and the creditors which was breached through some misconduct or misrepresentation. He does not point out what duty it was that Mr. King owed to the creditors or opposing counsel. The facts are simply that Mr. Myers sought an agreement to extend the time period to object to discharge or dischargeability, and Mr. King told him that he had no authority to enter into such an agreement. Some time later, Mr. Myers prepared pleadings which mistakenly sought an extension in the business case rather than Dr. Atteberry's personal case. The Court entered an order granting the extension, and later received a second, agreed order which was also entered. Both the motion and the orders were generated by Mr. Myers.

Whether Mr. King or the Court believed the proposed order to be unnecessary since the business would receive no discharge is not material. The question instead is whether the debtor's counsel, or for that matter the Court, was under any obligation to advise Mr. Myers that his motion and order sought unnecessary relief or that he might be making a mistake. Though we may in some ways have departed from an adversary system, surely counsel still owe their most significant duties to their own clients. See Nelson v. Miller, 227 Kan. 271, 287, 607 P.2d 438 (1980) (rejecting a professional negligence claim against an opponent's attorney, the court said that in an adversary situation, a "lawyer's duty must be to his client alone and there is no room for any duty running to the client's adversary"). The Court believes Mr. King would have breached his duties to his client if he had given Mr. Myers advice detrimental to d the Kansas version of the Model Rules of Professional Conduct and found nothing which would have required Mr. King to point out the possible mistake to Mr. Myers. See 1993 Kan.Ct.R.Annot. 252-352, especially MRPC 3.3, "Candor Toward the Tribunal," p. 314-15, and 3.4 "Fairness to Opposing Party and Counsel," 318-19. The Comment to MRPC 4.1 states:

A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

Emphasis added. The Court simply does not believe Mr. King made any misrepresentation by signing the proposed order which granted an extension of time in the business case based on a motion filed in that case. The fact such an order was pointless carries little weight with the Court; it is not the Court's duty to divine counsel's motive in seeking such an order. This was not the first time an attorney has asked the Court to sign an order the Court thought was unnecessary, and unfortunately, it will probably not be the last.

For these reasons, the Court concludes the creditors' motion in Case Number 93-40866 for an extension of the time to object to discharge or dischargeability must be denied, and the debtor's motion to dismiss Adversary Number 93-7147 must be granted.

The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by FRBP 9021 and FRCP 58.

Dated at Topeka, Kansas, this ____ day of December, 1993.





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