11 U.S.C. § 523

Section 523 permits a creditor to seek an exception from discharge for a particular debt; a complaint seeking that relief does not give notice of an objection to the debtor’s discharge under § 727.

Canon USA, Inc. v. Berger (In Re Berger) · filed 1982-08-19

All of these matters indicating the pleader was relying solely upon § 523 far outweigh the plaintiff’s contention that the third claim was intended to assert grounds for relief under § 727.

Section 523(c)'s time limits for objections based on fraud, larceny, or malicious injury do not apply to a request to determine that an obligation is not a debt.

In Re Killian · filed 1982-07-08(c)

Any objections to the dischargeability of debts predicated on fraud, larceny or malicious injury need be filed within the prescribed time limits. 11 U.S.C. § 523(c). The Postal Service’s position is that the obligation is not a debt at all. Accordingly, there is no statutory time limit within which it had to move for this determination.

Section 523(c) makes a Social Security overpayment dischargeable when the agency does not file a complaint to determine its dischargeability.

Hawley v. United States Social Security Administration Bureau of Disability Insurance (In Re Hawley) · filed 1982-09-27(c)

In the instant case since the Social Security Administration has not filed a complaint to determine the dischargeability of the debt, 11 U.S.C. § 523(c) renders the overpayment dischargeable.

For a § 523(c) dischargeability complaint, notice of the filing deadline to a partnership’s counsel suffices for the partnership and its partners when counsel represents them in the same dispute.

In re Kirkpatrick · filed 1982-11-22(c)

In light of the facts of this matter, in that Mr. Ott was retained by the partnership for the purpose of proceeding against these debtors on the identical grounds now sought to be argued in this Court as the basis for finding that the debt to Mr. Lewis is nondischargeable, it seems to this Court that service upon Mr. Ott was sufficient service to put the partnership and the partners on notice of the dates fixed by the Court. That being the case, the Court will find that the motion for extension of time was not timely filed and that there has been no showing of excusable neglect. The motion therefore will be denied.

Section 523(a)(6) requires a complaint to allege directly what the debtor did to injure the creditor or its property; allegations made only in other lawsuits are insufficient.

Wenzoski v. Palmer (In re Palmer) · filed 1982-11-23(a)(6)

Section 523(a)(6) renders nondischargeable a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” ... The complaint fails to allege that the defendant has caused any injury to the plaintiffs or to any property of the plaintiffs. At most the complaint merely alleges that it has been alleged in other suits or actions that the defendant has caused injury to the plaintiffs. The defendant should not be required to answer such indirect allegations. The complaint should allege directly whatever acts of the defendant the plaintiffs assert have caused them injury.

Section 523(c) allows a creditor owed a debt to seek a determination that it is nondischargeable; a Chapter 7 trustee cannot file the complaint or obtain a filing extension on the creditor’s behalf.

In Re Overmyer · filed 1982-11-30(c)

Thus, not having any fiduciary duty to obtain such an extension of time, it must be concluded, conversely, that the trustee in bankruptcy is not a “party in interest” for the purpose of applying for the extension of time on behalf of creditors of the estate to file complaints to determine the dischargeability of their debts.

Section 523(c) permits a party other than the debtor to seek a dischargeability determination only if that party is a creditor owed the debt.

Ambrose, Wilson & Grimm v. Hill (In re Hill) · filed 1982-12-15(c)

Bankruptcy Rule 409(a) and § 523(c) of the Bankruptcy Code require that any party, other than the debtor, seeking a dis-chargeability determination must be a creditor of the debtor.

New § 523(a)(4) and (a)(6) grounds do not relate back to a timely § 523(a)(2)(A) complaint when they require different proof and lack sufficient identity with the original claim.

Citizens Fidelity Bank & Trust Co. v. Wahl (In Re Wahl) · filed 1983-02-09(a)(4), (a)(6)

In the instant case, and following the standard set forth in In Re Dean, supra, the causes of action added by the amended complaint would require the introduction of additional evidence relating to the elements of proof of malice and intent under § 523(a)(6), as well as fiduciary capacity pursuant to § 523(a)(4). It is the opinion of the Court that there is not sufficient identity between the causes of action asserted in the amended complaint and the basis of the action in the original complaint to enable the amendment to relate back to the original claim.

Section 523(a) permits a money judgment in a dischargeability proceeding against the debtor, but not against a debtor in possession or trustee.

Bell v. Financial Guild of America (In Re Bell) · filed 1983-03-15(a)

The bankruptcy court is authorized to enter judgment against the debtor as part of a dischargeability proceeding. 11 U.S.C. § 523(a); Bankruptcy Rule 409(b). ... A dischargeability judgment lies only against a debtor and not a debtor-in-possession or trustee.

A creditor’s counterclaim seeking a determination of nondischargeability must be filed by the deadline set for § 523(c) complaints.

Sanborn v. Bangor Federal Credit Union (In Re Sanborn) · filed 1983-05-02(c)

The order and notice for meeting of creditors dated July 28, 1982, stated that “October 12, 1982, is fixed as the last date for the filing of a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(c).” Because the credit union failed to file its counterclaim by that date, the counterclaim must be dismissed.

A creditor who misses the bankruptcy court’s deadline to assert the willful and malicious injury exception waives the right to challenge dischargeability.

Sipl for Sipl v. United Ben. Life Ins. Co. · filed 1983-04-25(a)(6)

Plaintiffs failed to make such assertion by this date. The failure to make this timely assertion in the Bankruptcy Court resulted in a waiver of the right of the plaintiffs' to challenge the dischargeability of their claims against Malcolm.

A motion filed after the deadline to extend the time for a § 523(c) dischargeability complaint requires excusable neglect under Bankruptcy Rule 906(b).

In Re Thole · filed 1983-07-21(c)

Pursuant to 11 U.S.C. § 523(c) and Bankruptcy Rules 404 and 409, the Court established March 21, 1983 as the last day for filing a complaint to determine dischargeability of any debt and for filing a complaint objecting to the discharge of the Debtor. ... After reviewing the arguments of counsel and applicable law, the Court is satisfied the more specific extension provisions of Rule 906(b) govern this case, rather than the more general provisions of Bankruptcy Rules 404(c) and 409(a)(2). Consequently, Plaintiff must establish excusable neglect for failing to file their motion within the time period originally prescribed.

Section 523(c) allows a request to except a debt from discharge only by a creditor to whom that debt is owed.

Missouri, Ex Rel. Ashcroft v. Cannon (In Re Cannon) · filed 1983-07-15(c)

Therefore, the request referred to at Section 523(c) must be made by an entity which is a creditor of the debtor; and the debt sought to be excepted from discharge must be owed to that entity.

Section 523 permits a co-signer who received no consideration or benefit from a loan to challenge discharge of the resulting debt, even if the co-signer has not paid the loan.

Browning v. Browning (In Re Browning) · filed 1983-07-18(c)

We hold therefore, that a co-signer of a loan who has received no consideration for co-signing and derives no benefit from the loan is a creditor for purposes of Section 523 and has standing to object to the discharge of a debt arising out of that loan.

Section 523 dischargeability objections are barred when a creditor receives notice but misses the deadline to object.

Artinian v. Peli (In Re Peli) · filed 1983-08-04(a)(2)

The plaintiff is time barred from raising the issue of dischargeability under 11 U.S.C. Section 523. The plaintiff was listed as an unsecured creditor on the defendant’s schedule of liabilities and was afforded a full and adequate notice of the bankruptcy proceedings. As part of that notice he was informed that any objections to discharge-ability must be raised between thirty and ninety days following the date of the first meeting of creditors. ... That time having passed the creditor is barred from raising the issue of dischargeability with respect to the subject debt.

Section 523(c) requires a request from the creditor owed the debt to determine whether that debt is excepted from discharge.

Missouri v. Cannon (In Re Cannon) · filed 1983-12-20(c)

Debts for obtaining money or services by false misrepresentations are discharged “unless, on request of the creditor to whom such debt is owed ... the court determines such debt to be excepted from discharge ....” 11 U.S.C. § 523(c). ... The State does not have standing to pursue its complaint against the debtor.

Section 523(c) requires a creditor claiming that a debt is nondischargeable under § 523(a)(4) or (a)(6) to request a bankruptcy court determination.

In Re Neumann · filed 1984-01-13(c)

The bank claims that the debtor’s debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(4) and (a)(6). Section 523(c) requires a creditor who claims its debt is nondischargeable under those two sections to file a request with the bankruptcy court to determine the debt to be nondischargeable.

A complaint can state a claim under § 523(a)(2)(A) by alleging false representations used to obtain property, even if it cites only § 523(a)(6).

Maes v. Herrera · filed 1984-01-19(a)(2)(A)

Thus, a cause of action under Sec. 523(a)(2)(A) for obtaining property by false pretenses, false representations, or fraud was stated in the original complaint though the Plaintiffs did not cite to the applicable statutory provision. An amendment which adds or changes the statutory provision relied on, but which relies on the same facts to support the claim, will relate back.

Section 523(c) subjects complaints to determine the dischargeability of debts alleged under § 523(a)(2)(A) and (a)(6) to Rule 4007(c)'s filing deadline.

Edwards v. Whitfield (In Re Whitfield) · filed 1984-08-10(c)

Plaintiffs proposed complaint objecting to the dischargeability of a particular debt is, however, clearly governed by § 523(c) of the Code, hence plaintiff must comply with the deadline set out in Rule 4007(c).

Section 523(c) requires a creditor seeking to except a debt based on fraud or deceit from discharge to initiate proceedings in bankruptcy court; otherwise, the debt is discharged.

Fitzgerald v. Fitzgerald · filed 1984-06-22(c)

The case is therefore governed by 11 U.S.C. § 523(c). Section 523(c) provides that creditors who seek to have debts owed to them excepted from discharge because they were based on fraud or deceit must initiate proceedings in the bankruptcy court for an exception to discharge.

A creditor seeking to contest dischargeability under § 523(c) must file within Rule 4007(c)'s deadline or move to extend it before the deadline expires; excusable neglect does not permit a late extension.

State Guaranty Bank of Okeene v. Ensminger (In Re Ensminger) · filed 1984-09-07(c)

It provides that “[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).” ... While enlargement for excusable neglect is permitted pursuant to Bankr.R. 9006(b)(1), it is expressly limited pursuant to Bankr.R. 9006(b)(3).

Section 523(c) dischargeability complaints remain subject to the original Rule 4007(c) filing deadline when a Chapter 11 case converts to Chapter 7.

National City Bank of Minneapolis v. Richards (In Re Richards) · filed 1984-09-25(c)

Accordingly, the time to file Section 523(c) dischargeability actions under Rule 4007(c) was not revived by application of Sections 348 and 341(a) to the converted continuing case by the scheduling of a second meeting of creditors.

The filing deadline for a § 523(c) dischargeability complaint may be extended only if a motion is filed before the deadline expires.

Ware Co-Operative Bank v. Smith (In Re Smith) · filed 1984-10-01(c)

As can be seen from the above-quoted language, where paragraph (3) limits the discretionary power of the Court to enlarge the time for filing complaints brought under § 523(c) pursuant to Rule 4007(c), the general enlargement power of the Court under paragraph (1) does not apply.

Section 523(c) permits only the creditor to whom a debt is owed to request an exception from discharge for a debt arising from misrepresentation.

In Re William Anthony Cannon, Jane Cannon, Debtors. State of Missouri, Ex Rel., John D. Ashcroft, Attorney General v. Wi · filed 1984-08-21(c)

In order to challenge the dischargeability of a debt resulting from a misrepresentation under section 523(a)(2)(A), “the creditor to whom such debt is owed” must request the court to except the debt from discharge.

A motion to extend the time to bring a § 523(c) dischargeability complaint is timely if filed within 60 days after the first date set for the creditors’ meeting following conversion to Chapter 7.

In Re Kellogg · filed 1984-09-07(c)

The Citizens Bank of Lawton has moved to extend the time to object to the debtor’s discharge pursuant to 11 U.S.C. § 727(a) or to determine dischargeability of its debt under 11 U.S.C. § 523(c). ... The motion is timely pursuant to Bankruptcy Rules 4004(a) and 4007(c) in that it was made within 60 days following the first date set for the meeting of creditors subsequent to conversion. ... We thus hold that the Bank’s motion is timely.

Section 523(c) permits only the creditor owed a debt to object to its dischargeability under subsections (a)(2), (4), or (6); a Chapter 7 trustee cannot do so.

Vaccariello v. Lagrotteria (In Re Lagrotteria) · filed 1984-09-21(c)

Section 523(c) states that only a creditor to whom such debt is owed may object to the dischargeability of its particular debt upon sections 523(a)(2), (4) or (6).

A creditor must file a § 523(c) dischargeability complaint within 60 days after the first date set for the creditors’ meeting or request an extension before that deadline expires.

In Re Schones · filed 1984-09-28(c)

Rule 4007(c) of the Federal Rules of Bankruptcy Procedure allows that a complaint pursuant to 11 U.S.C. § 523(c) must be filed not later than 60 days following the first date set for the meeting of creditors. It continues to say that the Court may extend the time for cause but “[t]he motion shall be made before the time has expired.” ... The language in the stay relief motion fails for lack of particularity and the motion merely requests relief from the stay not an extension of the time for a dischargeability complaint.

A Chapter 11 case’s conversion to Chapter 7 does not restart the deadline for filing a § 523(c) dischargeability complaint under Rule 4007(c).

F & M Marquette National Bank v. Richards (In Re Richards) · filed 1984-11-01(c)

Accordingly, the time to file § 523(c) dischargeability actions under Rule 4007(c) was not revived by application of Sections 348 and 341(a) to the converted continuing case by the scheduling of a second meeting of creditors.

Section 523(c) requires the creditor owed the debt to bring a challenge to discharge under § 523(a)(2), (4), or (6).

Black Hawk County v. Vik (In Re Vik) · filed 1984-11-02(c)

It is clear the County lacked standing to object to the discharge of the underlying Projects Inc. debt since 11 U.S.C. § 523(c) requires all challenges to discharge under § 523(a)(2), (4) or (6) be raised by the creditor to whom the debt is owed.

Section 523(c) does not give a trustee power to seek a determination of whether a particular debt is dischargeable.

Vaccariello v. Lagrotteria · filed 1984-11-07(c)

What is significant for current purposes is that (in sharp contrast to Section 727(c)(1)) no such power to obtain a determination of dischargeability is given the trustee under the language of either Section 523(c) or Rule 4007(a).

A complaint to except a debt from discharge under § 523(c) must be filed within 60 days after the first date set for the creditors’ meeting; an extension requires a motion before that period expires.

Agway Insurance v. Grant (In Re Grant) · filed 1984-12-28(c)

Bankruptcy Rules 4004(a) and 4007(c) provide that complaints objecting to a debtor’s discharge under § 727 and objecting to the dischargeability of a debt under § 523 shall be filed within 60 days after the first date set for the meeting of creditors held pursuant to § 341. Agway Insurance Company contends that the Court, in its discretion, may extend the time for filing complaints under § 727 and § 523. This Court does not agree. The Court may only extend the 60-day time period upon motion of a party in interest made before the time has expired.

A creditor cannot add a § 523 nondischargeability claim after the filing deadline by amending a timely § 727 complaint when the claims lack sufficient identity to relate back.

Maine Bonding & Casualty Co. v. Grant (In Re Grant) · filed 1984-12-28(c)

This Court does not perceive a “sufficient identity” between the plaintiffs allegations under § 727 and that which the plaintiff seeks to assert in its amendment to the complaint by adding allegations under § 523.

Section 523(c) requires a creditor to seek a determination that a debt under § 523(a)(2), (4), or (6) is excepted from discharge; otherwise, the debt is discharged.

Durham v. Yancey (In Re Yancey) · filed 1985-02-20(c)

Bankruptcy Rule 4007(c) states, crystal-clearly, that such an action must be commenced no later than sixty days after the first date set for the first meeting of creditors. Since this period obviously expired prior to Durham’s filing of the complaint, we will dismiss these counts of the complaint which are predicated on § 523(a).

A timely complaint seeking to except a specific debt from discharge may proceed under § 523(c) when its facts and requested relief are clear, even if it mistakenly cites § 727.

Worthley v. Smith (In Re Smith) · filed 1985-01-28(c)

The plaintiff’s timely complaint setting forth sufficient facts to sustain a cause of action under § 523, but incorrectly citing § 727, is an insufficient basis for dismissing the complaint.

A creditor seeking a determination that a debt is excepted from discharge under § 523(a)(4) must file a complaint initiating an adversary proceeding.

In Re Dodd · filed 1985-02-08(a)(4)

An objection to the dischargeability of a debt in a Chapter 13 case falls under Rule 4007. The determination of the discharge-ability of a debt is an adversary proceeding initiated by the filing of a complaint. R.Bankr.P. 4007. The creditors have not proceeded in the manner which would entitle them to the relief they have requested.

Section 523(c) requires a creditor that suspects fraud to pursue its own dischargeability complaint; notifying the trustee does not excuse a late filing.

In Re Kirschner · filed 1985-02-15(c)

The creditor offers no explanation for its failure to file a dis-chargeability complaint on time, except that its attorney wrote to the trustee regarding these matters. If a creditor suspects fraud, it is the responsibility of the creditor, not the trustee, to follow the proper procedures for objecting to the dis-chargeability of its debt.

Complaints to determine dischargeability under Section 523(c) must be filed within 60 days after the first date set for the creditors’ meeting; rescheduling the meeting does not restart the deadline.

European-American Bank v. Hill (In Re Hill) · filed 1985-04-04(c)

The court rejects Appellant-creditor’s interpretation of Bankruptcy Rules 4004(a) and 4007(c) as it is contrary to the plain meaning of those Rules. Appellant-creditor apparently would have the court construe the phrase, “60 days following the first date set for the meeting of creditors,” to mean 60 days following the date of the first meeting of creditors. This construction ignores the language of the Rules and cannot be adopted by the court. The Bankruptcy Rules make no special provision for the filing date of dischargeability complaints in the event of a rescheduling of the first meeting of creditors and the court will not read one into them.

An insurer subrogated to an embezzlement victim’s rights may seek a determination that the debt is nondischargeable under § 523(a)(4).

National Union Fire Insurance v. Hutcherson (In Re Hutcherson) · filed 1985-06-19(a)(4)

Accordingly, National Union is privileged to file a complaint to determine the dischargeability of a debt the rights to which it has become subrogated under a policy of insurance.

Section 523(a)(6) does not prevent discharge of a conversion debt when the underlying claim is time-barred and unenforceable.

General Electric Credit Corp. v. Dunn (In Re Dunn) · filed 1985-07-02(a)(6)

Therefore, Dunn’s obligation, if any, to GECC is not a “claim” or “debt” to which an objection to discharge may be made under 11 U.S.C. § 523 since such a claim is not enforceable and not in need of discharge.

Section 523(c) does not provide for a dischargeability determination against a defendant who has not sought a discharge of the debt.

Hasbrouck v. Valeu (In Re Valeu) · filed 1985-08-07(c)

A number of the Defendants to this proceeding are not debtors who have petitioned the court for discharge of their debts. It would be inappropriate for this Court, therefore, to make a determination of non-dischargeability when there has been no request from the Defendants for a discharge of the debt.

A complaint under § 523(c) is subject to Rule 4007(c)’s sixty-day filing period, which the court may extend only on a motion filed before the period expires.

Montgomery Ward & Co. v. Gardner (In Re Gardner) · filed 1985-10-03(c)

This language expressly granted bankruptcy courts the authority to extend the time period for filing a section 523(c) complaint when the court determined that good cause existed. In contrast, Rule 4007(c) grants the court authority to extend the sixty-day period only upon motion of any party in interest filed before expiration of the sixty-day period.

A claim that a deficiency is nondischargeable under Section 523(a)(6) is not ripe before the collateral is sold and the deficiency is proven.

First National Bank of Louisville v. Scott (In Re Scott) · filed 1985-09-09(a)(6)

The Bank has also asserted a claim that any deficiency due and owing the Bank after the boat is sold is non-dis-chargeable pursuant to 11 U.S.C. Section 523(a)(6). As no sale has yet taken place, any alleged potential deficiency has not been proven by the Bank, and therefore, the non-dischargeability issue is not yet ripe for decision by this Court.

A creditor may not add a new § 523(a)(6) ground for nondischargeability by amending its complaint after the applicable filing deadline.

American Honda Finance Corp. v. Tester (In Re Tester) · filed 1985-09-24(a)(6)

As a general rule, additional or new grounds of objection may not be added by way of amendment filed after the deadline for filing Complaints objecting to discharge has passed.

Section 523(c) treats an untimely objection based on the listed misconduct as waived, allowing the debt to be discharged.

In re Ballan · filed 1985-10-03(c)

11 U.S.C. § 523(c) provides that objections to discharge based on false pretenses, fraudulent inducement, embezzlement, larceny, or willful malicious injury are deemed waived unless made within specified time periods. In this case, the court ordered that the time to object to discharge expired on June 4, 1985. Therefore, debt- or’s obligation to LILCO was properly discharged because LILCO waited too long to make their objection to discharge.

Section 523(c) complaints must be filed within 60 days of the first date set for the creditors’ meeting, even if the meeting is held later.

In Re Leroy · filed 1985-12-16(c)

For the reasons stated below, the Court concludes that the first date set for the meeting of creditors, rather than the date on which the meeting is actually held, must be used to determine the timeliness of filing of complaints objecting to dischargeability of debts under Code § 523(a). ... The Court concludes and so Orders that the movant is not entitled to have the debt- or’s discharge revoked, nor may she file a complaint objecting to the dischargeability of a debt under Code § 523(c).

Section 523 provides no right to a jury trial on whether a debt is dischargeable.

Billebault v. Schmid (In Re Schmid) · filed 1985-10-31

In neither § 523 nor the legislative history have we uncovered any mention of a right to a jury trial on the question of the dischargeability of debts. ... Thus, as a core proceeding under the Code, no right to a jury trial attaches to questions of dischargeability.

A § 523(a)(2) complaint need not use the words “intent to deceive” if its allegations support an inference of deceptive intent.

Continental Illinois National Bank & Trust Co. of Chicago v. Doppelt (In Re Doppelt) · filed 1986-01-07(a)(2)

However, the Complaint fails to state specifically that debtor acted “with an intent to deceive” Continental as required by § 523(a)(2). ... Those facts have been pleaded here. Therefore, the thrust of the Complaint clearly is that debtor intended to deceive Continental into providing financing through use of false oral statements and also a false handwritten financial statement. Certainly plaintiff has the burden of proving such intent to deceive at trial. Continental’s failure to use the precise words from the statute is an insufficient ground upon which to dismiss the Complaint.

Section 523(a) provides an equitable remedy for determining dischargeability, with no right to a jury trial on that issue.

Barrios v. Ruiloba (In Re Ruiloba) · filed 1986-02-05(a)

The action is to determine dischargeability of a debt under 11 U.S.C. § 523(a). No right to a jury existed under the Common Law for such an action, which is a statutory remedy bottomed on principles of equity.

Section 523 addresses whether a particular debt is dischargeable.

South Dakota Cement Plant v. Jimco Ready Mix Co. · filed 1986-02-10

Section 523 speaks only to the non-discharge-ability of a particular debt.

A creditor cannot obtain summary judgment under § 523(a)(2)(A) or (B) while material questions remain about reliance on the debtor's statements and the debtor's intent.

Prudential-Bache Securities, Inc. v. Riposo (In Re Riposo) · filed 1986-02-19(a)(2)(A), (a)(2)(B)

There remains Plaintiff’s motion for summary judgment on the nondischargeability of its claim pursuant to § 523(a)(2)(A) and § 523(a)(2)(B). ... In the present case, there are several issues of material fact which must be addressed at a trial on the merits. Matters regarding Plaintiff's reliance upon the documents remain unanswered. The intentions of the Debtor in promulgating the documents are unclear.

A creditor seeking to except a debt from discharge under § 523(a)(2), (4), or (6) must file a timely complaint or timely seek an extension.

Manufacturers Hanover Trust v. Shelton (In Re Shelton) · filed 1986-03-10(a)(2), (a)(4), (a)(6)

There is no recourse for a party who fails to file a timely complaint objecting to the dischargeability of a debt under §§ 523(a)(2), (4), or (6) or to move in a timely fashion for an extension of the period within which to file a complaint.

Section 523(c) permits only a creditor to object to the dischargeability of a specific debt; a Chapter 7 trustee cannot seek more time for creditors to object.

In the Matter of Elma Speight Farmer, Mary Alice Parker Farmer, D/B/A Speight Oil Company Speight Oil Company, La. Elma · filed 1986-03-12(c)

However, a trustee may not object to dis-chargeability under section 523. The trustee has, therefore, no statutory basis for asserting an interest in extending the time for such objections.

A complaint under § 523(c) is timely if filed within 60 days after the first date set for a creditors’ meeting in a converted Chapter 7 case.

General Electric Credit Corp. v. Watts (In Re Watts) · filed 1986-04-14(c)

Bankruptcy Rule 4007(c) requires complaints to determine discharge-ability of debts under § 523(c) to be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a), and this Court holds that Bankruptcy Rule 4007(c) includes the first date set for a meeting of creditors held pursuant to § 341(a) in a converted case such as this one.

Section 523 lets creditors seek exceptions to discharge for individual debts, and those claims may be severed from a § 727 objection and pursued through separate complaints.

Lowe's of Virginia, Inc. v. Thomas · filed 1986-04-23

As to the final issue on appeal, the court is of the opinion that the bankruptcy court did not err in severing the plaintiffs’ § 727 claim from their § 523 based claims and putting the plaintiffs on terms to file separate complaints if they wished to seek nondischarge of individual debts under § 523.

A § 523(c) dischargeability complaint must be filed by the Rule 4007(c) deadline unless a motion to extend the time is filed before that deadline.

Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Tatum (In Re Tatum) · filed 1986-05-07(c)

However, enlargement is limited under Rule 4004(a) and 4007(c), which govern dischargeability actions pursuant to § 727(a) and § 523(c), to the extent and under the conditions stated in those rules. Bankruptcy Rule 9006(b)(3). Those rules clearly require a complaint to be filed within the deadline unless a motion for extension of time is filed before the deadline.

Section 523(c) requires a creditor seeking to except a debt described in § 523(a)(6) from discharge to file a complaint subject to Rule 4007(c)'s deadline.

Waszkiewicz v. Tuzzolino (In Re Tuzzolino) · filed 1986-09-08(c)

Code § 523(c) requires creditors to take affirmative steps should they seek to except certain debts from discharge. ... While FRBP 4007(b) does not contain a time limit for the filing of an adversary complaint to determine the dischargeability of a debt specified in Code § 523(a)(9), FRBP 4007(c) imposes a deadline for filing complaints to determine the dischargeability of a debt set out in Code § 523(a)(6). ... Plaintiffs cause of action based upon Code § 523(a)(6) is dismissed with prejudice.

The filing period for a § 523(c) dischargeability complaint does not begin until creditors receive the deadline notice required by Bankruptcy Rule 4007(c).

Herbert v. Schwartz (In Re Schwartz) · filed 1986-09-16(c)

Accordingly, we hold that the 60 day time period which would have began from the date set for the section 341 meeting was not triggered since notice of that deadline was lacking.

A creditor’s § 523(c) dischargeability claim is time barred if the creditor neither files a complaint nor obtains an extension by the Rule 4007(c) deadline.

In Re Hirte · filed 1986-12-11(c)

At the time the Court held the Debtors’ discharge hearing, Bank’s dischargeability claim was time barred under 11 U.S.C. § 523(c) ... and Bankruptcy Rule 4007(c) because Bank failed to either timely file a complaint or obtain an extension of time within which such complaint could be filed.

A creditor seeking a determination under Section 523(c) must meet Rule 4007(c)’s filing deadline; extensions granted to other creditors did not extend this plaintiff’s time.

Burger King Corp. v. B-K of Kansas, Inc. · filed 1987-01-15(c)

The court merely finds that under the particular facts of this case, the bankruptcy court’s orders granting extensions of time to the two moving creditors did not effect an extension of time for plaintiff. Because the plaintiff failed to file a timely application for extension of time, Bankruptcy Rule 4007(c) compels this court to dismiss plaintiff’s complaint to determine dischargeability.

A creditor cannot avoid the deadline for a § 523(a) dischargeability complaint by filing a cross-claim in an existing adversary proceeding.

Stinehart v. Mid-American Bank & Trust Co. (In re Firsdon) · filed 1987-01-21(a)

While the events which gave rise to the assertions set forth in Luckey’s Cross-Claim occurred in the same transaction as the Plaintiff’s Complaint and the Debtor’s Cross-Claim, it is well settled that the similarity in transactions does not exempt a creditor from the time requirements for filing complaints under either 11 U.S.C. § 523(a) or 727(a). Actions to oppose a debtor’s discharge and to determine the dischargeability of a debt are not compulsory counterclaims which relate back to the filing of the original complaint.

When a creditor fails to file a required dischargeability complaint on time, Section 523 does not preserve a personal claim on the discharged debt, though a valid assignment of income may remain enforceable.

In Re Ashford · filed 1987-03-19

The VA did not file a complaint to determine dischargeability of the debt within the time prescribed by Bankruptcy Rule 4007. ... Should there be any interruption or cessation in that stream of income, however, the VA would have no further claim against Mr. Ashford personally nor against his assets because the indebtedness is discharged.

A change of venue and a later court notice do not reopen an expired deadline for filing a § 523(c) dischargeability complaint.

First National Bank of Deerfield v. Lewis (In Re Lewis) · filed 1987-03-20(c)

The change of venue can not turn back the clock for the objecting creditors. Plaintiff’s reliance on the computer notice is unjustified.

Complaints under section 523(c) challenging debts described in section 523(a)(2) must meet Rule 4007(c)'s filing deadline or a court-granted extension.

Federal Deposit Insurance Corp. v. Coffey (In re Coffey) · filed 1987-04-08(c)

Since § 523(a)(2) is included in § 523(c), any complaint to determine the dischargeability of a debt under § 523(c) must be filed within 60 days following the first date set for the meeting of creditors pursuant to Code § 341(a), unless the court determines otherwise upon motion of party in interest pursuant to Rule 4007(c).

Section 523 does not incorporate preexisting procedures for challenging the discharge of a debt.

In Re Moses Hill, Debtor. Phelix Jones, Creditors v. Moses Hill, Debtor · filed 1987-04-22

We conclude, therefore, that section 523 does not incorporate preexisting procedures.

Section 523(c) puts the burden on a creditor who knows of the bankruptcy to seek a determination that a fraud-based debt is excepted from discharge; the clerk’s failure to give notice of the filing deadline does not suspend it.

Neeley v. Clinton W. Murchison, Jr. · filed 1987-04-29(c)

Moreover, § 523(c) of the Code, which Rule 4007 is designed to implement, places a heavy burden on the creditor to protect his rights: a debt of the type presented here is automatically discharged unless the creditor requests a determination of dis-chargeability.

A creditor receives a new period to file a Section 523(c) dischargeability complaint when a Chapter 11 or 13 case is converted to Chapter 7.

Goralnick v. Bromberg (In Re Goralnick) · filed 1987-07-24(c)

Accordingly we hold that when a chapter 11 or 13 case is converted to a chapter 7, a new period arises for filing complaints objecting to discharge or dischargeability.

Section 523(c) requires a creditor seeking an exception to discharge to file a good faith complaint with facts that give the debtor notice of the claim.

Mission Viejo National Bank v. Englander (In Re Englander) · filed 1987-11-02(c)

I believe a creditor has an obligation to make a good faith filing of a § 523(c) complaint to satisfy the timing limitation of Rule 4007(c).

A creditor who has actual notice of the bankruptcy in time to act cannot file a late Section 523(c) nondischargeability complaint merely because the debtor failed to schedule the creditor.

Lompa v. Price (In Re Price) · filed 1987-10-08(c)

The appellee, having actual notice of the debtor’s bankruptcy, was responsible for protecting his claim and could have done so by inquiring into the bankruptcy proceedings and taking appropriate action. Because bankruptcy courts no longer have discretion to grant untimely extensions for filing 523(c) complaints, the trial court erred in granting the appellee’s motion for leave to file a late nondischargeability complaint.

A creditor who pleads nondischargeability under § 523(a)(2)(C) must amend the complaint before litigating fraud under § 523(a)(2)(A).

Boatmen's National Bank of Belleville v. Coulson (In re Coulson) · filed 1987-10-20(a)(2)(C)

As to the question of whether the Bankruptcy Judge should have allowed the introduction of evidence of fraud over the objection by appellees’ counsel, the Bankruptcy Judge was bound by what appellant pled, and absent any amendment by appellant, the question of fraud under § 523(a)(2)(A) was indeed irrelevant, making the Judge’s exclusion of such evidence proper.

A motion to extend the deadline for a § 523 dischargeability complaint must be filed before the deadline expires; excusable neglect does not justify a late motion.

DMK, Inc. v. Galemore (In re Galemore) · filed 1987-12-07

However, both Bankruptcy Rule 4004(b) and 4007(c) specify that “[t]he motion shall be made before such time has expired.” Courts have strictly observed the time limit within which the motion to extend time must be filed and will not even consider “excusable neglect” as a basis for extending the time.

A creditor given sufficient notice must file a § 523(c) dischargeability complaint by the Rule 4007(c) deadline; the court cannot extend that deadline after it expires.

Shelby Mutual Insurance v. Rose (In re Rose) · filed 1988-01-15(c)

Thus, the resolution of this matter requires a determination of whether the Debtor gave Shelby sufficient notice pursuant to Bankruptcy Rule 4007(c) to enable Shelby to timely file its Complaint under § 523(c). ... The Court finds Shelby Mutual Insurance Company did receive sufficient notice, as did all counsel. ... ORDERED, ADJUDGED AND DECREED that this Court does not have the authority to extend the time for filing a Complaint to Determine Dischargeability after such time has expired. Bankruptcy Rule 4007(c).

A complaint alleging fraud under § 523(a)(2) or (a)(4) must state the circumstances of the fraud with particularity.

Mazzocco v. Smith (In Re Smith) · filed 1988-02-02(a)(2), (a)(4)

At least two of the cited discharge-ability sections implicate fraud by a bankruptcy debtor. 11 U.S.C. § 523(a)(2), (4). The circumstances constituting fraud are to be stated with particularity — other than malice or intent which may be generally averred.

A complaint under § 523(a)(2)(B) is timely when the clerk receives it within the allowed period, even if an insufficient filing fee delays its processing.

Phoenix Federal Savings v. Boothe (In Re Boothe) · filed 1988-04-14(a)(2)(B)

Thus, the complaint was properly filed in this case on September 8, 1987. The delay in completing the processing of the complaint until September 30, 1987 by the Clerk’s Office has no affect on the substantive rights of creditor to pursue its remedies under the Bankruptcy Code.

Section 523(c) discharges covered claims unless the court determines that they are nondischargeable.

In Re Mandukich · filed 1988-06-22(c)

Section 523(c) provides that such claims are discharged unless the Court determines otherwise.

A complaint under § 523(a)(2) must identify whether it invokes subsection (A) or (B).

Associates Professional Executive Services, Inc. v. Bernard (In Re Bernard) · filed 1988-05-04(a)(2)

The Complaint is defective insofar as it does not even reveal whether the Plaintiff is invoking subsection (A) or (B) of Section 523(a)(2).

Section 523(a)(4) dischargeability cannot be determined before the individual files for bankruptcy.

Bankr. L. Rep. P 72,300 in Re San Juan Hotel Corporation, Debtor. Hans Lopez-Stubbe v. Rodriguez-Estrada · filed 1988-05-18(a)(4)

As we wrote then and as is equally true here: ... Because Rodriguez has not filed for bankruptcy, the district court’s decision regarding discharge is premature and must be vacated.

Section 523 dischargeability complaints can be deemed timely under an extended filing deadline when unusual circumstances warrant equitable relief.

In Re Wellman · filed 1988-08-19

The extension of time to file an objection, or obtain an exception, to discharge pursuant to the United States Trustee’s notice setting May 16, 1988 as the bar date for filing such a dischargeability complaint is GRANTED. All complaints pursuant to Sections 523 or 727 of the Bankruptcy Code, or extensions to file such complaints, which were filed on or before May 16, 1988 shall be and are hereby deemed timely.

A creditor seeking a dischargeability determination under § 523(c) must file within the Rule 4007(c) deadline or move to extend it before it expires.

Dunlop v. Peebles (In re Peebles) · filed 1988-08-23(c)

Such appellants filed a complaint under 11 U.S.C. § 523(c) with such Court, to obtain a determination of the dischargeability of such debt, but not until September 17, 1987, Rule 4007(c), Bankruptcy Rules, without having sought timely enlargement of the time thus fixed. ... As no motion was made at all by the appellants, obviously no motion was made by them before the time fixed therefor had expired.

A creditor cannot obtain an extension to file a § 523(c) dischargeability complaint when the request is made more than 60 days after the first date set for the meeting of creditors.

In Re Wilson · filed 1988-09-09(c)

The movant having filed the motion for an extension of time on March 18, 1988, and the request having been made beyond 60 days following the first date set for the meeting of creditors held pursuant to 11 U.S.C. § 341(a), the Court is without discretion to allow an extension of time to file a complaint pursuant to 11 U.S.C. § 523(c).

A § 523 complaint seeks to except a particular debt from discharge and does not prevent the debtor from receiving a discharge.

In Re Burkhart · filed 1988-10-18

As is noted above, a § 523 complaint, such as that filed by Tandy, has no effect whatever upon the right of a debtor to a discharge. It simply seeks an exception from that discharge for the particular indebtedness to which it relates.

Section 523(c) permits a dischargeability judgment without an evidentiary hearing when no hearing was timely requested and no factual dispute requires one.

Martinelli v. Valley Bank (In Re Martinelli) · filed 1988-12-16(c)

Section 102(1)(B) authorizes acts by the court without an actual hearing unless a hearing is timely requested. The record does not indicate that the Martinellis ever requested an evidentiary hearing on the stipulated judgment. Furthermore, in the absence of factual disputes, the court need not hold an evidentiary hearing to determine the dischargeability of a debt.

Section 523 identifies debts that may be excepted from discharge but does not set a deadline for seeking that relief.

Industrial Financial Corp. v. Falk (In Re Falk) · filed 1989-02-08

Section 523 of Title 11 merely sets forth the instances in which a debt may be excepted from discharge; it does not provide any time period in which such action must be taken.

A bankruptcy court cannot extend an expired filing period for a complaint under § 523(a).

In Re Tinsley · filed 1989-03-20(a)

The Court further notes that a previous order of this Court, entered August 1, 1988, found that the Court was without authority to extend the time periods for filing a complaint under 11 U.S.C. § 523(a) or § 727. No new reason exists to overturn that order at this time.

A creditor with actual knowledge of a bankruptcy case must inquire about the deadline for a § 523(c) dischargeability complaint; lack of official notice does not excuse an untimely filing.

Central Oil Field Supply Co. v. Cover (In Re Cover) · filed 1989-03-08(c)

Despite its purported lack of official notice of the dischargeability bar date, Central concedes that it had actual knowledge of Debtor’s Chapter 7 case and attended the first meeting of creditors. Where a creditor has actual knowledge of a bankruptcy case such knowledge imposes upon the creditor the obligation to make reasonable inquiry regarding the relevant bankruptcy bar dates and deadlines. ... Under the circumstances of this case and pursuant to the decisional authority discussed above, the dismissal of Central’s untimely Complaint is appropriate.

Section 523(c) requires a creditor to initiate proceedings to challenge dischargeability; otherwise, the debt is discharged.

Burger King Corp. v. Wilkinson · filed 1989-03-21(c)

Section 523(c) of the Bankruptcy Code, 11 U.S.C. § 523(c), requires the creditor to initiate such proceedings; otherwise, the debt is discharged.

A change of venue does not restart the filing period for a § 523(c) dischargeability complaint.

Patchett v. Anwiler (In Re Anwiler) · filed 1989-04-13(c)

Plaintiffs have cited this Court to no authority for the proposition that a change of venue somehow starts a new period of time within which to file complaints under § 727 or § 523. Nor has the Court found any such authority on its own. Moreover, this Court is persuaded that a change of venue, by itself, does not have such an effect.

Section 523(c) complaints ordinarily must meet Rule 4007(c)’s filing deadline, but a court may allow a late complaint when a creditor reasonably relies on a second notice from the clerk giving a later deadline.

Dwyer v. Hershkovitz (In Re Hershkovitz) · filed 1989-07-06(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.” ... 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.

Section 523(c) and Bankruptcy Rule 4007(c) govern the deadline for certain complaints seeking an exception from discharge; parties cannot extend that deadline by stipulation.

In Re Snyder · filed 1989-07-14(c)

The parties had stipulated the day before that the objection would be voluntarily withdrawn in return for the debtor’s consent to a 30-day extension of the July 17 deadline fixed in this case (CP 4) in accordance with the requirements of the Bankruptcy Rule 4004(a) and 11 U.S.C. § 523(c) and B.R. 4007(c). ... The Bankruptcy Code and the Bankruptcy Rules require the imposition of mandatory deadlines for the filing of objections to discharge and, in certain specified respects, complaints seeking exception from discharge. These requirements display a clear mandate for prompt disposition of these controversies. This court will not permit litigants to bind this court, by bargaining for delay beyond that specified by the Rules and the Code, Therefore, the stipulated order was not entered by the court, and the parties were so notified the day before the scheduled hearing.

A § 523 dischargeability complaint may proceed despite delay when an unmodified order extends the filing period and the circumstances do not warrant dismissal for laches or waiver.

Society Bank, N.A. v. Sinder (In Re Sinder) · filed 1989-06-28

This court is persuaded that the reconciliation of these competing interests can be best accomplished in this proceeding by permitting the plaintiff to maintain its complaint as it relates to the § 523 and § 727 causes of action.

Section 523(c) complaints must be filed by the Rule 4007(c) bar date; the court cannot extend that deadline after it passes.

In Re Cintron · filed 1989-06-29(c)

Most courts, including this one, have determined that the Court does not have the discretion to extend the deadline for filing a § 523(c) exception to discharge action after the bar date has passed.

A bankruptcy court may extend the deadline for a § 523(c) complaint on its own initiative under § 105(a) to prevent abuse of the bankruptcy process.

Greene v. Balaber-Strauss (In Re Greene) · filed 1989-07-19(c)

Notwithstanding the existence of filing deadlines and the requirements for motions seeking extensions therefrom, we think that 11 U.S.C. § 105(a) commits to the sound discretion of the bankruptcy court the authority to take the actions embodied in the October 27 Notice and November 26 Order, sua sponte, in the interests of protecting the process from possible abuse. ... That authority, in our view, includes the court’s decisions here both to allow Baer the option of filing a complaint or objection pursuant to 11 U.S.C. §§ 523(c) or 727(a) and to allow the trustee to piggyback on the latter.

A creditor seeking a determination under § 523(c) must file a complaint or move to extend the filing time before the Rule 4007(c) bar date expires.

Merenda v. Brown (In Re Brown) · filed 1989-07-31(c)

Compliance with Rule 4007(c) requires the filing of either a complaint or a motion for extension of time to file the complaint before the expiration of the bar date.

A § 523(c) dischargeability complaint due on a Sunday under Rule 4007(c) may be filed the following Monday under Rule 9006(a).

Security Title & Guaranty Co. v. Day (In Re Day) · filed 1989-07-31(c)

This court agrees with the bankruptcy court below that Bankruptcy Rule 9006(a) extends the filing deadlines for a complaint to determine dischargeability to the Monday after the Sunday on which the sixty-day filing limitation falls.

A complaint to determine dischargeability under § 523(c) must be filed within the 60-day period set by Bankruptcy Rule 4007(c), unless the creditor obtains a timely, proper extension.

Kennedy v. Stratton (In Re Stratton) · filed 1989-09-28(c)

Bankruptcy Rule (hereinafter “B.R.”) 4007(c) prescribes the general rule that an adversary complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(c) shall be filed no later than 60 days from the first date set for the 11 U.S.C. § 341(a) meeting of creditors.

A complaint under § 523(c) must meet Rule 4007(c)’s 60-day deadline measured from the first date set for the creditors’ meeting; rescheduling the meeting does not reset the deadline.

CSR, Inc. v. McGinnis (In re McGinnis) · filed 1989-12-12(c)

A review of the jurisprudence would have made it abundantly clear to Plaintiffs counsel that the only prudent course of action was to file the Complaint or to file a Request for Extension within the first 60 days following the first date set for the meeting of Creditors. ... Plaintiff’s apparent interpretation of the second notice as superseding Rule 4007(c) and the clear jurisprudence cited above is unwarranted and is fatal to Plaintiff’s position.

Section 523(c) complaints remain available to omitted creditors after a case is reopened when they had no notice and no effective period in which to act.

Matter of Bilder · filed 1989-12-28(c)

It follows that this case should be reopened, and the New Creditors given an opportunity to participate in the case, to object to the Bilders’ claimed exemptions and to file §§ 523(c) complaints if they desire to do so.

A creditor seeking a determination under section 523(c) must file a dischargeability complaint or seek an extension before the Rule 4007 deadline; the court cannot extend that deadline after it passes.

In Re White · filed 1990-02-22(c)

On motion by a party in interest, for cause, a court may extend the time for filing a complaint to determine dischargeability of the types of debts listed in 11 U.S.C. section 523(c), which includes debts for fraud and willful and malicious conversion. ... The Court concludes that it has no discretion to enlarge the time set by Rule 4007 for filing a dischargeability complaint and that the Bank is now barred from filing such a complaint.

Section 523(c) allows a bankruptcy court to decide dischargeability and does not make a timely complaint a jurisdictional prerequisite.

Schunck v. Santos (In Re Santos) · filed 1990-04-10(c)

11 U.S.C. § 523(c) allows a bankruptcy court to determine the dischargeability of a debt of the type at issue in this appeal and 28 U.S.C. § 157(b)(2)(I) provides that such determinations involve “core proceedings.” Neither the text nor the legislative history of these provisions conferring jurisdiction over dischargeability matters purport to limit jurisdiction to those cases where the complaint is timely filed.

A creditor with adequate notice must file a § 523(a)(2)(B) dischargeability complaint by the Rule 4007(c) deadline.

West Suburban Bank of Darien v. Arianoutsos (In Re Arianoutsos) · filed 1990-07-03(a)(2)(B)

The bank seeks to have the debt owed to it declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). Under Bankruptcy Rule 4007(c) ... and this Court’s Order, the bank was required to file a complaint to determine dischargeability by April 11, 1989. ... bank, therefore, is now time-barred from raising the issue of dischargeability.

A creditor must file a § 523(c) dischargeability complaint within 60 days after the first date set for the creditors’ meeting; omission of the bar date from the court’s notice does not extend that period when the creditor received timely notice of the case and meeting.

National Union Fire Insurance Co. of Pittsburgh v. Rockmacher (In Re Rockmacher) · filed 1990-08-02(c)

There is no discretionary period within which nondischargeability complaints under 11 U.S.C. § 523(c) may be filed under the Bankruptcy Code. Bankruptcy Rule 4007(c) mandates that such complaints must be filed within sixty days from the first date set for a meeting of creditors. ... Accordingly, the omission of a bar date for filing nondischargeability complaints in the thirty day notice which the court issued and which the plaintiff received with respect to the commencement of the instant Chapter 11 case did not excuse the plaintiff from complying with the sixty day period for filing nondischargeability complaints following the date set by the court for the meeting of creditors.

Section 523(c) complaints are subject to Rule 4007(c)'s filing deadline, but a late complaint may stand when the creditor reasonably relies on an erroneous later deadline notice issued before the original deadline.

Patchet v. Anwiler (In Re Anwiler) · filed 1990-07-12(c)

Rule 4007(c) sets the same deadline for complaints under § 523(c). ... The transferee court issued the Second Notice prior to the deadline for filing non-discharge complaints as originally established by the transferor court. There is nothing in the record to indicate that the appellants’ reliance on the complaint deadline specified in the Second Notice was not reasonable and in good faith. Under the unique circumstance doctrine the court below had, and should have exercised, the equitable power to permit the appellants’ complaint to stand.

A complaint seeking an exception to discharge under § 523 is timely if submitted before the bar date, even when the filing fee is paid afterward.

Colorado National Bank-Aurora v. Caballer (In Re Caballer) · filed 1990-11-05

The bar date for filing complaints pursuant to 11 U.S.C. § 523 or § 727 was August 22, 1990. ... Held that when a plaintiff submits a complaint in a timely manner before the bar date, but fails to pay the filing fee until after the bar date, the complaint is deemed timely filed.

A debtor’s failure to timely list a creditor can justify extending the deadline to file a complaint under § 523(a)(2), (4), or (6) when that failure prevented timely notice.

In Re Hall · filed 1990-12-18(a)(2), (a)(4), (a)(6)

Nevertheless, despite the fact that Thomas’s motion to extend was filed one (business) day late, the Court finds that the Debtor’s failure to comply with his duty to timely list Thomas as a creditor (whether intentionally or unintentionally) constitutes cause for extending the time for filing a dischargeability complaint under 11 U.S.C. § 523(a)(2), (4) or (6) and that such failure ... either tolls the limitation period provided for by B.R. 4007(c) or estops him from raising it under these circumstances (i.e. where the allegations were already pending in a State Court action and were being actively defended against by him).

A creditor may file a § 523(a)(3) dischargeability proceeding at any time because it is outside § 523(c)'s filing deadline.

Karr v. Pankey (In Re Pankey) · filed 1991-01-02(a)(3)

However, the creditor is not barred from filing an adversary proceeding for determination of dischargeability under § 523(a)(3), which adversary proceedings áre not governed by § 523(c) and which adversary proceedings “may be filed at any time.” Bankruptcy Rule 4007(b).

Section 523(a) proceedings determine whether an established debt is excepted from discharge; a prior judgment may settle the debt’s existence and amount.

Radermacher v. Sullivan (In Re Sullivan) · filed 1991-01-07(a)

Defendant’s debt to Plaintiff has been fixed and liquidated, and will not be at issue in the trial of this adversary proceeding. The sole issue will be the discharge-ability of that established debt. This result is fully appropriate; after all, the major function of the Bankruptcy Court in an adversary proceeding under 11 U.S.C. § 523(a), and the only one which is explicitly contemplated by the Bankruptcy Code, is to determine whether the subject debt is excepted from discharge.

A creditor may file a § 523(c) dischargeability complaint after the Rule 4007 deadline when the creditor reasonably relied on an erroneous deadline in a court notice.

Oak Hollow South Associates v. Cortes (In Re Cortes) · filed 1991-04-01(c)

Therefore, on balance, the policies embodied in federal bankruptcy law and procedure are best served by allowing the untimely filing of a dischargeability complaint when the creditor has reasonably relied on an erroneous notice from the court.

A creditor seeking to except a fraud debt from discharge must file a timely dischargeability complaint; notice of the creditors’ meeting can suffice even if the clerk omits the filing deadline.

National Union Fire Insurance Co. of Pittsburgh v. Rockmacher (In Re Rockmacher) · filed 1991-04-02(c)

A creditor seeking to avoid having its claims discharged upon confirmation of a bankruptcy petition by virtue of a debtor’s fraudulent actions has the burden of establishing that the debt should be excepted from discharge. 11 U.S.C. § 523(c). ... Counsel obviously knew of the rule, but failed to comply with it, notwithstanding the fact that he had all the necessary information before him to protect his client’s rights.

Settlement negotiations and an alleged oral agreement to reaffirm a debt do not excuse a creditor’s failure to file a timely dischargeability complaint under § 523(c).

In Re Yohler · filed 1991-05-29(c)

In sum, I find that the pendency of settlement negotiations and even an alleged oral agreement by the Debtor to reaffirm a debt will not excuse a creditor’s failure to file a timely complaint objecting to dis-chargeability.

A complaint under § 523(c) is timely when the clerk receives a recognizable but defective complaint by the Rule 4007(c) deadline, even if it is stamped later.

Evans v. Pace (In Re Pace) · filed 1991-06-05(c)

Bankruptcy Rules 4007(c) and 4004(a) set forth identical time limits for filing complaints to determine dischargeability under 11 U.S.C. § 523(c) and objections to discharge under 11 U.S.C. § 727(a), in a Chapter 7 case: the complaint or objection “shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a).” ... This Court finds that the document filed by the Plaintiffs with the Clerk of the Court on September 24, 1990 was timely under Bankruptcy Rules 4007(c) and 4004(a).

A creditor seeking to except a debt from discharge for fraud under § 523(a)(2)(A) must plead facts supporting the fraud claim with particularity.

Arkansas Bank v. Burrow (In Re Burrow) · filed 1991-08-09(a)(2)(A)

The Complaint merely recites that on a certain date in 1990 the debtor delivered a promissory note to the Plaintiff in the amount of $27,000.00 and “obtained money, in exchange for executing the aforesaid promissory note by actual fraud,” a violation of section 523(a)(2)(A). The Court finds that the allegations in Count I fail to show a sufficient factual basis to support a fraud claim which must be pled with particularity under Rule 9(b), and should be dismissed.

Section 523 requires notice and a hearing before a court determines that a debt is nondischargeable.

Citizens Bank & Trust Co. v. Case (In re Case) · filed 1991-08-09(c)

Section 523 expressly requires that the determination of the dischargeability be proceeded by a notice and a hearing.

Section 523(c) requires notice and a hearing before a court excepts a covered debt from discharge.

Citizens Bank & Trust Co. v. Case (In re Case) · filed 1991-08-09(c)

However, even if the time limits do not apply to actions arising out of the debtor’s post-petition conduct, it is clear that § 523 and Rule 4007 contemplate some form of notice and hearing on the issue of dis-chargeability. There was none in this case.

A support debt under § 523(a)(5) is not automatically discharged when the creditor fails to file a dischargeability complaint.

Surface v. Meyer (In Re Surface) · filed 1991-09-30(a)(5)

With respect to the other types of dischargeability questions under § 523(a), including § 523(a)(5) for alimony and support, there is no automatic discharge of the debt upon failure of the creditor to file an adversary proceeding in the bankruptcy court.

Section 523(a)(2) requires facts indicating actual fraud; an allegation of theft alone is insufficient.

Tague & Beem, P.C. v. Tague (In Re Tague) · filed 1991-09-26(a)(2)

Even when coupled with the other allegations in the amended complaint, the Court finds plaintiff’s allegation of “theft” as the factual underpinning for actual fraud insufficient to support a claim for relief under either Section 523(a)(2) or (a)(4).

A creditor cannot rely on another creditor’s extension of the deadline for a § 523(c) complaint when the orders do not apply to all creditors and the court’s practice of granting general extensions is unwritten.

Ichinose v. Homer National Bank (In re Ichinose) · filed 1991-11-13(c)

Such a general extension, to squarely present the question Homer urges, would have to be evident on the face of the order granting it or, if part of a practice of the bankruptcy court, would have to be reduced to writing, presumably in the form of a rule. Here, neither the orders themselves nor the circumstances surrounding their issuance support Homer's reliance. The alleged practice relied on by Homer was not a written court policy or rule. As a consequence, we find it clear that Homer improperly relied on the deadline-extension orders issued by the bankruptcy court in this case.

A creditor seeking a dischargeability determination under § 523(c) must follow Rule 4007(c)’s filing deadline; an unwritten practice of general extensions does not extend that creditor’s time.

Ichinose v. Homer National Bank (In re Ichinose) · filed 1991-11-13(c)

In order to determine the dischargeability of a debt under § 523, a creditor must follow the process outlined in Rule 4007. ... In such a circumstance, we cannot find that the deadline-extension orders were properly treated as applying to Homer.

The bankruptcy court has no discretion to grant an extension of the filing deadline for a § 523(c) nondischargeability complaint when the motion is untimely.

In Re Daniel R. Bucknum, Dba Bucknum, Levine & Smith, Debtor. Joe W. Moody, Bernice H. Moody v. Daniel R. Bucknum, Dba B · filed 1991-12-09(c)

It is well settled that the bankruptcy court has no discretion to grant an untimely motion for an extension of the filing deadline under section 523(c).

Section 523 allows a creditor to challenge the discharge of a particular debt; a general discharge order does not cover a debt determined to be nondischargeable under it.

FCC National Bank v. Kilian (In re Kilian) · filed 1992-01-23

Therefore, the discharge order specifically excludes from discharge those debts which are determined by the Court to be nondischargeable under § 523. The discharge is effective as to all debts not the subject of a timely-filed adversary proceeding.

Section 523(c)(1) requires a creditor to affirmatively seek a determination that a covered debt is nondischargeable; after Chapter 11 plan confirmation, conversion to Chapter 7 does not revive an unasserted challenge to a pre-confirmation debt.

In the Matter of Spiro Pavlovich, Debtor. Bank of Louisiana v. Pavlovich · filed 1992-01-30(c)(1)

The bank’s right to assert non-dischargeability of pre-petition debts also ceased upon confirmation, because § 523 requires that a creditor affirmatively assert its right to demonstrate non-discharge-ability of the kind asserted by the bank here, 11 U.S.C. § 523(c)(1), and Bankruptcy Rule 4007(c) fixes the time limit for filing such complaints.

A timely § 523(a)(4) complaint may be amended after the filing deadline when the amendment arises from the same transaction or occurrence.

In re Pettigrew · filed 1992-02-13(a)(4)

Rules 4004(a) and 4007(c) require that complaints under § 727(a)(2) and § 523(a)(4) be filed "not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a)." ... Because the initial filing was timely, and the amendment arises out of the same transaction or occurrence, see In re Barnes, 96 B.R. at 839, the bankruptcy court did not abuse its discretion in granting leave to amend.

A § 523(a)(6) exception to discharge does not relate back to a complaint objecting to discharge under § 727(a)(5).

First National Bank in Okeene v. Harold E. Barnes, and Claudia K. Barnes · filed 1992-02-18(a)(6)

Accordingly, an exception to discharge under § 523(a)(6) would not relate back to the original complaint's claim for objection to discharge under § 727(a)(5).

A Section 523(c) dischargeability complaint may proceed after the Rule 4007(c) deadline when a creditor reasonably relies on a later, erroneous deadline sent by the court.

In Re John Frederick Anwiler, Debtor. John Frederick Anwiler v. Gregory S. Patchett and Kathleen Griffin · filed 1992-04-08(c)

Bankruptcy Rules 4004(a) and 4007(c) set a strict sixty day time limit within which a creditor may dispute the discharge of the debtor and the dischargeability of the debts. ... We therefore agree with the Bankruptcy Appellate Panel that the Bankruptcy court had the equitable power to permit Patch-ett’s complaint to proceed in spite of its untimely filing.

Section 523(c)(1) requires a creditor seeking nondischargeability under § 523(a)(2), (4), or (6) to file a timely complaint, including an unlisted creditor with timely actual knowledge of the bankruptcy.

Lawrence Steel Erection Co. v. Piercy (In Re Piercy) · filed 1992-04-21(c)(1)

Lawrence’s claim is barred in accordance with 11 U.S.C. § 523(c)(1) and Rule 4007(c) due to Lawrence’s failure to file a timely complaint to determine dischargeability. Lawrence, although an unlisted creditor, had actual knowledge of the deadline for dischargeability complaints more than 60 days before the deadline.

Section 523(a)(7) dischargeability complaints are not subject to Bankruptcy Rule 4007(c)’s 60-day filing deadline and may be filed at any time.

Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois v. Betts (In Re Betts) · filed 1992-06-16(a)(7)

Section 523(c), except for certain exceptions not applicable here, only references discharge determinations under section 523(a)(2), (4), (6) and (11). Most importantly is the omission by way of reference in section 523(c) to all the other subpara-graphs including section 523(a)(7) upon which ARDC’s complaint is based. ... Dischargeability complaints, however, based on the other subparagraphs of section 523(a) are not so similarly time restricted.

A creditor who cannot rebut the presumption that notice arrived cannot obtain more time to file a § 523 dischargeability complaint based on alleged nonreceipt.

Wilson v. Rodolfy (In Re Rodolfy) · filed 1992-08-12(c)

The Rule which prescribes the procedure to follow when a party requests a determination as to the dischargeability of a debt pursuant to 11 U.S.C. § 523 of the Bankruptcy Code is found in Federal Rule of Bankruptcy Procedure 4007(c) which provides as follows: ... Wilson has presented no evidence to rebut the presumption of receipt of mail. ... Consequently, based upon the foregoing, we deny the Application to Extend Time to File Complaint to Determine Dischargeability.

A complaint under § 523(a)(2), (4), or (6) must be filed within sixty days after the first date set for the creditors’ meeting unless an extension is granted before that deadline.

Estate of Hanson v. Walgamuth (In Re Walgamuth) · filed 1992-09-08(c)

Under F.R.Bankr.P. 4007(c), a complaint objecting to the dischargeability of a debt for fraud or willful and malicious injury — set forth at §§ 523(a)(2), (4), or (6) — must be filed within sixty days after the date originally set for the § 341 meeting of creditors unless an extension is granted before the original deadline passes.

A creditor who knows the first date set for the creditors’ meeting must file a Section 523(c) dischargeability complaint by the Rule 4007(c) deadline, even without notice of the specific due date.

Durham Ritz, Inc. v. Williamson (In Re Williamson) · filed 1992-09-23(c)

In the present case, the Plaintiff was certainly aware of the first date set for the meeting of creditors; due to the plain language of Rule 4007(c), that knowledge necessarily put the Plaintiff on notice of the filing deadline for Section 523(c) complaints.

A request for relief under § 523 may be denied when the creditor fails to identify the applicable subsection and brief the issue.

Pelham Plate Glass, Inc. v. Charette (In Re Charette) · filed 1992-09-25

And the request for relief under § 523 must also be denied because the Plaintiff has failed to specify the subsection of § 523 it is invoking, and because the issue has not been briefed.

A court cannot permit a late § 523(c) dischargeability complaint based on excusable neglect when the creditor did not seek an extension before the Rule 4007(c) deadline expired.

Silver City, Inc. v. Forte (In Re Forte) · filed 1992-10-26(c)

The sole issue before us is whether this Court has any discretion under the applicable Federal Rules of Bankruptcy Procedure to permit the creditor to file a complaint under 11 U.S.C. § 523(c) out-of-time, without having obtained prior court authorization to do so, whether or not excusable neglect is shown. Having considered the applicable statutory and decisional authorities, we find no such grant of discretion and therefore must GRANT the Debt- or’s Motion to Dismiss.

A creditor must file a § 523(c) dischargeability complaint within Rule 4007(c)’s 60-day period or seek an extension before that period expires.

Transamerica Commercial Finance Corp. v. Brucker (In Re Brucker) · filed 1993-01-08(c)

This court agrees with the Duncan ruling that Rule 4007(c) is more similar to a statute of limitations in that any creditor who wishes to file a complaint to determine the dischargeability of any debt more than 60 days after the first meeting of creditors is barred from doing so.

A § 523(c) dischargeability complaint may be filed the next day when conditions make the clerk’s office inaccessible on the filing deadline.

Lewis v. Richards (In Re Richards) · filed 1993-01-12(c)

The plain meaning of the rule allows plaintiffs such as Dr. Lewis an extra day to file a complaint to determine dischargeability when inclement weather causes the Clerk’s office to close on the date of the original deadline.

Section 523(c)(1) requires a creditor seeking a dischargeability determination to file a complaint; a creditor who receives notice of the bankruptcy and creditors’ meeting must inquire about an omitted filing deadline.

Bishop v. Shrum · filed 1992-12-29(c)(1)

Section 523(c)(1) requires a creditor claiming nondischargeability of a debt under 11 U.S.C. § 523(a)(2), (4) or (6) to file a complaint to determine dischargeability. ... The court finds the reasoning articulated in Neeley persuasive and likewise holds the Bishops had a duty to inquire about the deadline for filing dischargeability complaints upon receipt of the notice.

A claim under § 523(a)(2)(A) filed after the dischargeability deadline may relate back to a timely § 523(a)(5) complaint when both claims arise from the same transaction.

Newman v. Kruszynski (In Re Kruszynski) · filed 1993-01-12(a)(2)(A)

While the elements of § 523(a)(2)(A) and § 523(a)(5) are not identical, the evidence concerning the Agreement and the supposed state of the parties’ joint tax obligations during their marriage and Defendant’s asserted representation with respect thereto will be relevant to Plaintiff’s case in both counts. Therefore, the proposed amendment relates back to the original pleading under Rule 15(c).

Section 523(c)(1) requires an affected creditor to file a timely complaint to prevent discharge of debts covered by § 523(a)(2), (4), or (6).

Nicholson v. Isaacman (In Re Isaacman) · filed 1993-01-22(c)(1)

The Code clearly compels affected creditors to file a § 523(c)(1) complaint and it would appear that the Code therefore places the burden on creditors to see that the complaint is timely.

Section 523(c) concerns whether particular debts are discharged; an extension of time to challenge their dischargeability may apply even when the motion uses the term “discharge.”

In Re Aucoin · filed 1993-01-27(c)

The creditors established sufficient cause for the extension of time and the debtor has not shown he was prejudiced or misled by the terminology in the motion. Accordingly, the bankruptcy court’s order granting the extension of time and making it applicable to dischargeability of debts as well as to discharge of the debtor is AFFIRMED.

Section 523(a) does not require an earlier state court complaint to allege the elements of a later nondischargeability claim.

Spinnenweber v. Moran (In Re Moran) · filed 1993-03-08(a)

In short, there is no requirement that the allegations of a complaint filed in state court prior to a debtor filing a petition in bankruptcy correspond to the elements of the grounds contained in § 523(a) of the Bankruptcy Code.

A court cannot extend the expired deadline for a § 523(c) dischargeability complaint after a bankruptcy case is transferred.

In Re Chang Bum Park · filed 1993-05-27(c)

Thus when the case was transferred to the Western District of Missouri, this Court was without jurisdiction to extend the time to allow the filing of the bank’s complaint under either § 727 or § 523, simply because the time had already run.

Section 523(a)(5) does not automatically discharge an alimony or support debt when the creditor fails to file an adversary proceeding before discharge; an action to declare the debt nondischargeable may be filed at any time.

In Re Lee Surface, Debtor. Lee Surface v. Meyer · filed 1993-06-29(a)(5)

Section 523(a)(5), however, does not provide an automatic discharge of a debt for alimony and support if a creditor fails to file an adversary proceeding prior to the debt's discharge. Instead, an action to have a debt declared nondischargeable under § 523(a)(5) can be filed at any time.

The filing period for § 523(c) complaints may run from the debtor’s first appearance at the creditors’ meeting when military service delays that appearance.

In Re Ladner · filed 1993-07-15(c)

FURTHER ORDERED, that the time for filing claims in this case against this Debt- or, for filing objections to exemptions claimed by this Debtor, and the time for the filing of complaints pursuant to 11 U.S.C. §§ 523(c) or 727 against this Debtor, shall all be continued to run from the date of said Debtor’s first appearance at the meeting of creditors, as fully and to the same extent as if said first appearance coincides with the first date set for said appearance; and it is FURTHER ORDERED, that no order of discharge as to this Debtor shall enter herein until after the expiration of at least sixty (60) days from and after said Debtor’s first appearance for examination pursuant to 11 U.S.C. § 341.

Section 523(c) creditors may rely on a later court-issued filing deadline unless they receive notice that it was vacated at least 30 days before the original deadline.

Sam Michael Schreiber, M.D., Inc. v. Halstead (In Re Halstead) · filed 1993-09-20(c)

Complaints to determine the dis-chargeability of debts pursuant to 11 U.S.C. § 523(c) must be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). ... Under these authorities, an order vacating a notice setting forth an erroneous bar date will preclude reasonable reliance on the erroneous bar date only if the order is sent to the creditors in time to permit a creditor to file a dischargeability complaint before the correct bar date. Under Rule 4007(c) and Dewalt, a creditor is entitled to 30 days notice of the correct bar date.

Section 523(c) permits discharge of debts described in § 523(a)(2), (4), and (6) when the creditor fails to request a dischargeability determination within the time allowed.

In Re Walker · filed 1993-12-23(c)

The types of debts described in paragraphs (2), (4) and (6) of section 523(a) can be discharged, however, if a creditor fails to object to their discharge within the time provided by the Federal Rules of Bankruptcy Procedure. ... The Presses failed to file their discharge-ability complaint within the time limits established by Rule 4007(c) and the Notice. They are therefore precluded from filing such a complaint now.

A complaint objecting to discharge under § 727 does not preserve an objection to a particular debt’s dischargeability under § 523(a).

Cattlemen's Livestock Market v. Cox (In re Cox) · filed 1993-11-23(a)

The debtor is correct that trial of any issue under section 523(a) is inappropriate. First, plaintiff never filed an action under section 523(a). ... The assertion of an objection to discharge in no manner preserves any rights with regard to an objection to dischargeability of a debt.

A complaint to determine whether a debt falls within Section 523(a)(9)’s exception for injuries caused by intoxicated driving may be filed at any time.

In Re Higgins · filed 1993-12-01(a)(9)

Another example, as in this case, is an obligation which arises from personal injuries caused by an intoxicated driver. 11 U.S.C. § 523(a)(9). ... Nevertheless, if either of the parties desires that this Court make a determination of dischargeability, an adversary action may be filed at any time pursuant to Rule 4007(b).

A § 523 dischargeability claim can survive a motion to dismiss for untimeliness when alleged fraudulent concealment leaves equitable estoppel unresolved.

Lust v. Burke · filed 1994-02-16

Counts V and VI of the amended complaint request that this Court deny a discharge in bankruptcy to defendant Mátese and deny the dischargeability of debts owed to plaintiffs by defendant Mátese. Plaintiffs have alleged that the fraudulent activity of defendants in concealing from them their need to protect themselves with respect to Matese’s bankruptcy was part of the scheme to defraud plaintiffs which is the subject of this action. The issues of equitable estoppel and fraudulent concealment cannot be finally determined at this stage of these proceedings by way of Matese’s motion to dismiss. Accordingly, the claims against defendant Mátese asserted by the plaintiffs in question will not be dismissed at this time on the ground of untimeliness.

A creditor may seek a determination under Section 523(a)(7) after discharge, but a judgment on the debt alone does not determine dischargeability.

In Re Bingham · filed 1994-02-06(a)(7)

Simply obtaining a judgment in a non-bankruptcy forum that the debt is a governmental fine owed by the debtor is not the equivalent of determining that the debt is not dischargeable. ... Therefore, this Court finds and concludes that the Commission was not required to file an adversary proceeding prior to Bingham’s discharge in order to determine whether its claim was dischargeable.

A court cannot extend the deadline for a § 523(c) dischargeability complaint after the bar date or allow an untimely complaint when notice was properly mailed.

In Re Pratt · filed 1994-04-08(c)

The court does not find cause to reopen the debtor’s case because the court lacks the discretion to extend the time in which § 523(c) dischargeability complaints may be filed or to allow the movants to file an untimely dischargeability complaint.

Section 523(c) requires a creditor seeking a dischargeability determination to file within Rule 4007’s sixty-day period when the creditor has actual notice and sufficient time to act, even if the clerk fails to give thirty days’ notice.

In Re Williamson · filed 1994-03-09(c)

The sixty day deadline applies regardless of the thirty day notice if the creditor has actual notice of a bankruptcy proceeding and sufficient time to file a dischargeability complaint.

Section 523(c) requires a creditor to request a determination that a debt alleged to fall under § 523(a)(2), (4), or (6) is nondischargeable.

In Re Jeffrey · filed 1994-06-02(c)

§ 523(c) requires a creditor to request a determination of nondischargeability as to a debt averred to be nondischargeable under § 523(a)(2), (4) or (6).

Section 523(c)(1) requires a timely complaint to determine whether a debt is excepted from discharge under § 523(a)(2) or (4) when the creditor received adequate notice of the deadline.

Kern v. Kern (In Re Kern) · filed 1994-08-31(c)(1)

This proceeding is before the Court for determination whether the adversary complaint, filed under 11 U.S.C. § 523(a)(2), (4), should be dismissed as untimely. ... Given timely notice and an untimely complaint, this Court is prohibited by law from considering the merits.

A creditor seeking a dischargeability determination under Section 523(c) must file a complaint by the applicable deadline; documents that do not substantially meet complaint requirements cannot support relation back.

In Re Marino · filed 1994-09-29(c)

The documents Classic Auto filed on July 3, 1991 did not substantially comply with the requirements of a complaint. Consequently, the complaint filed on September 20, 1991 cannot relate back to the filing of those documents, and was therefore not timely filed.