Berry Contracting v. Schmidt

Case Type:
Case Status:
21-50230 (5th Circuit, Dec 17,2021) Not Published
A party seeking to file an objection to discharge must obtain an order granting an extension if the claim objection is not filed within 60 days after the first date set for the first meeting of creditors. Filing a motion for an extension of time and then filing a complaint objecting to discharge after the 60-day period but before the court rules on the motion for extension of time is not the same as obtaining an order extension the deadline.
Procedural context:
The appellants, two creditors who filed an adversary proceeding objecting to the discharge of the debtor, appealed to the Fifth Circuit after the Bankruptcy Court dismissed their complaint because it was untimely under Fed. R. Bankr. P. 4007(c) and denied the appellants' motion for reconsideration.
Two creditors timely filed a motion asking the bankruptcy court to extend the deadline for filing an objection to the debtor's discharge. The debtor objected to the request for an extension of time. The clerk of court sent all parties a notice of hearing on the motion. Before the hearing, the creditors filed a complaint to determine dischargeability. The creditors attended the hearing on the motion to extend and asked the bankruptcy court to mark the motion to extend as moot. The bankruptcy court advised the creditors that marking the motion to extend as moot would make the adversary proceeding untimely if the court found that there was no cause to extend the deadline. Nonetheless, the creditors insisted and the bankruptcy court marked the motion to extend as moot. The debtor then filed a Rule 12(b)(6) motion to dismiss the adversary proceeding and argued that the adversary proceeding was untimely. Following a hearing, the bankruptcy court granted the debtor's motion and dismissed the adversary proceeding because the complaint was untimely.
Higginbotham, Higginson, and Duncan, Circuit Judges

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