In re Anthanassious

Summarized by Allen Levine ,
14 years 11 months ago

Citation:

Nos. 09-4594 & 10-2285, 2011 WL 944421 (3rd Cir. March 21, 2001). Not for Publication in West's Federal Reporter.

Tag(s):

3rd Circuit

Ruling:

NOTE: This Opinion is stamped as " NOT PRECEDENTIAL." The United States Court of Appeals for the Third Circuit affirmed the District Court's orders (1) affirming the Bankruptcy Court’s order granting Debtor’s motion for reconsideration and denying Appellant an extension of time in which to file an objection to the discharge of Debtor; and (2) affirming the Bankruptcy Court’s order discharging Debtor during the thirty-day period within which a creditor may appeal to a court of appeals a district court’s final order. First, the Bankruptcy Court did not abuse its discretion when it denied Appellant’s request for an extension of time to file a motion objecting to or determining the dischargeability of the debtor. Appellant did not offer a single reason why she was unable to depose Debtor before the deadline, and thus was unable to establish cause for an extension. Second, the Bankruptcy Court acted within its authority when it discharged Debtor despite the fact Appellant’s 30 days to file an appeal of the District Court’s order had not expired. Once the automatic 14-day stay under Bankruptcy Rule 8017(a) expired, the Bankruptcy Court was free to grant a discharge. At that time, Appellant had not filed an appeal nor had she obtained a stay pending appeal. Bankruptcy Rule 4004(c) requires the Bankruptcy Court to grant a Chapter 7 debtor a discharge “forthwith” after the “time fixed for a complaint objecting to discharge and the time fixed for filing a motion to dismiss under Rule 1017(e)” have expired, subject to exception. None of the statutory exceptions applied and thus the lower courts did not abuse their discretion in granting a discharge order. Appellant was not prejudiced because the deadline to oppose discharge had expired prior to the original hearing on Appellant's motion.

Procedural context:

The Bankruptcy Court initially granted Appellant's motion for an extension of time to file a motion under 11 U.S.C. § 707 and/or a complaint under 11 U.S.C. § 727 and/or 11 U.S.C. § 523 objecting to or determining the dischargeability of the debtor. Upon Debtor's motion for reconsideration, the Bankruptcy Court vacated its earlier ruling and denied Appellant's motion. Appellant appealed to the District Court, which affirmed. After the statutory 14-day waiting period during which the District Court’s order was stayed under Fed. R. Bankr. P. 8017(a), the Bankruptcy Court discharged Debtor. Appellant appealed the discharge order because her 30 days within which to file an appeal had not expired. The Disctrict Court affirmed the discharge order. Appellant appealed the Disctrict Court orders to the Third Circuit.

Facts:

Debtor filed a Chapter 7 petition in August 2008. The Bankruptcy Court established December 9, 2008 as the last day to oppose Debtor’s discharge or dischargeability. Appellant’s attorney intended to take Debtor’s deposition. Without ever scheduling a deposition date, Appellant filed a motion under Fed. R. Bankr. P. 4004(b) and 4007(c) for an extension of time to file a motion objecting to or determining the dischargeability of the debtor. The hearing on Appellant’s motion was scheduled for December 15, 2008, 6 days after the court-established deadline to oppose Debtor’s discharge. Debtor’s counsel failed to appear because he mis-diaried the time of the hearing, and the Bankruptcy Court granted Appellant’s motion. Debtor’s counsel filed a motion for reconsideration the same day. The Bankruptcy Court heard both sides at a later hearing and vacated its earlier ruling, denying Appellant’s motion. Appellant appealed to the District Court, which affirmed on November 6, 2009. After the statutory 14-day waiting period during which the District Court’s order was automatically stayed, the Bankruptcy Court discharged Debtor. Appellant next appealed both the District Court’s order affirming the denial of an extension of time and the Bankruptcy Court's discharge order. The District Court affirmed the discharge order, noting that Appellant’s failure to seek a stay under Rule 8017 permitted the Bankruptcy Court to treat the District Court’s order as final at the end of the statutory 14-day waiting period.

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