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#1878

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

GERALD LEON OVERTON,

DEBTOR(S)

CHAPTER 11

NO. 91-41527-11

DONALD R. PAXSON, as Receiver,

PLAINTIFF,

v.

GERALD LEON OVERTON,

DEFENDANT

ADV. NO. 92-7052

ORDER ON MOTION TO DISMISS

This proceeding is before the Court on the debtor's motion to dismiss for failure to state a claim upon which relief can be granted. The debtor appears by counsel Jan Hamilton and Alan Tipton. The plaintiff appears by counsel Timothy J. Sear and Thomas M. Franklin. The Court has reviewed the relevant pleadings and is now ready to rule.

The debtor filed a chapter 11 petition on July 26, 1991. The Clerk's Office sent a notice setting September 20, 1991, as the date for the meeting of creditors under 11 U.S.C.A. §341(a). The notice contained a box which read: "Deadline for 727 & 523 complaint is **/**/**." The plaintiff does not question the service of this notice, only the adequacy of its contents. On April 15, 1992, well over sixty days after the first date set for the §341 meeting, the plaintiff filed the complaint which commenced this proceeding, seeking to have a number of debts determined to be nondischargeable under 11 U.S.C.A. §523(a)(2), (4), and (6).

The debtor argues the plaintiff's complaint should be dismissed under Federal Rule of Bankruptcy Procedure 7012, incorporating Federal Rule of Civil Procedure 12(b)(6), because it was not filed within the sixty-day period established by FRBP 4007(c). Although the complaint itself does not disclose this possibility, the leading treatise on federal civil procedure indicates court may consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" in ruling on a 12(b)(6) motion. 5A Wright & Miller, Federal Practice & Procedure: Civil 2d, §1357 at 299 (1990). Thus, it is appropriate for the Court to consider the notice the Clerk's Office sent because it is a public record and may be an item appearing in the record of this case, if the record may be considered to include the main case file as well as the separate file for this proceeding. It might seem peculiar to declare that a complaint fails to state a claim upon which relief can be granted because an affirmative defense like a statute of limitations can be established, but the same treatise indicates the limitations defense may indeed be raised under 12(b)(6). Id., §1357 at 352. Consequently, the debtor's motion is procedurally appropriate.

FRBP 4007(c) provides:

A complaint to determine the dischargeability 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.

The plaintiff concedes his complaint was filed after the sixty-day time period established by the first sentence of this rule, but contends the Court's failure to give him notice of the deadline prevented the deadline from expiring. The same argument was recently considered and rejected in Bishop v. Shrum, 148 B.R. 619 (D.Kan. 1992). For the reasons stated in that case, the Court concludes the debtor's motion should be granted. The Court also notes the following. The plaintiff's situation in this case is clearly distinguishable from the creditor's situation in a case like Reliable Elec. Co., Inc. v. Olson Const. Co., 726 F.2d 620 (10th Cir. 1984). There, no notice of the hearing on confirmation of the debtor's plan of reorganization was sent to the creditor, and no notice that was sent to the creditor would have allowed the creditor to calculate the hearing date itself. Here, on the other hand, notice of the 341 meeting was sent to the plaintiff, and he could have calculated for himself the time period established by Rule 4007(c). Furthermore, the plaintiff's theory would extend the deadline indefinitely based on the Court's inadvertent oversight, even though (1) parties notified of the §341 meeting date could determine from that notice the deadline fixed by the first sentence of Rule 4007(c), and (2) the rule allows the Court to extend the deadline intentionally only for "cause."

A judgment granting the debtor's motion will be entered by separate order.

Dated at Topeka, Kansas, this _____ day of April, 1993.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

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