F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 29 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re: CHARLES G. DICKINSON,
Debtor.
No. 99-1506
(D.C. No. 99-N-126)
VONNE IRENE TORREZ, (D. Colo.)
Plaintiff-Appellant,
v.
CHARLES G. DICKINSON,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , KELLY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Vonne Irene Torrez appeals the district court’s order affirming
a decision of the bankruptcy court denying her claim that a debt owed to her by
defendant, Charles G. Dickinson, the debtor in bankruptcy, should be excepted
from discharge in bankruptcy under 11 U.S.C. § 523(a)(6). Plaintiff hired
defendant, an attorney, to assist her in paying off a promissory note encumbering
property she owned. Plaintiff alleges in her complaint that defendant advised her
to take actions which were not in her best interest, simultaneously represented
parties with conflicting interests, and acted negligently in his representation of
her, resulting in the loss of her property to foreclosure. Under § 523(a)(6),
a debtor is denied discharge from liabilities arising out of his “willful and
malicious injury” to another or another’s property. Following a bench trial, the
bankruptcy court dismissed her complaint, finding that defendant’s representation
of plaintiff was incompetent and unprofessional, but “was not intentionally
injurious within the meaning of § 523(a)(6).” Appellant’s App. at 27.
We review the bankruptcy court’s legal determinations de novo and
its factual findings for clear error. See Osborn v. Durant Bank & Trust Co.
(In re Osborn) , 24 F.3d 1199, 1203 (10th Cir. 1994). We affirm the bankruptcy
court’s dismissal of plaintiff’s complaint, but for a reason different than that
given by the bankruptcy and district courts.
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Defendant has sought to have plaintiff’s complaint dismissed as untimely
because it was filed more than sixty days after the first date set for the creditors’
meeting. The time period for filing complaints under § 523(c) is governed by
Fed. R. Bankr. P. 4007(c), which stated, prior to subsequent amendment, 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).” Extension of this sixty-day
period may only be granted for cause upon a motion filed before the time has
expired. See id . The bankruptcy court may enlarge the time for filing a
complaint under Rule 4007(c) “only to the extent and under the conditions stated”
in the rule. Fed. R. Bankr. P. 9006(b)(3).
Here, defendant filed his voluntary Chapter 7 bankruptcy petition on
July 31, 1996. The first meeting of creditors held pursuant to § 341 was initially
set for September 9, 1996. Because the bankruptcy court failed to mail out
notices of the creditors’ meeting, however, the first creditors’ meeting was reset
for October 7, 1996. Plaintiff received a copy of the notice setting the October 7,
1996 meeting. The notice informed plaintiff that the bar date for filing a § 523(c)
complaint alleging the nondischargeability of any of defendant’s debts was
December 6, 1996, sixty days after the first date set for the creditors’ meeting.
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Due to continuations, the creditors’ meeting was not actually held until
April 18, 1997.
Plaintiff filed her § 523(c) complaint on June 12, 1997, more than sixty
days after the December 6, 1996 bar date. Plaintiff never filed any requests for
extensions of time to file her complaint. Defendant immediately filed a motion to
dismiss plaintiff’s complaint as untimely under Rule 4007(c). In response,
plaintiff argued that Rule 4007(c)’s bar date should be triggered by the date the
first creditors’ meeting was actually held, rather than the first date set for the
meeting. The bankruptcy court denied defendant’s motion to dismiss in a minute
order. Defendant then filed an interlocutory appeal of that decision with the
district court, which was summarily denied. As noted, the bankruptcy court
ultimately dismissed plaintiff’s complaint on the merits. In response to plaintiff’s
appeals, defendant reasserted his argument in both the district court and this court
that plaintiff’s complaint was barred under Rule 4007(c). The district court
affirmed the bankruptcy court’s dismissal on the merits, and concluded that it
need not reach the Rule 4007(c) issue.
We now conclude that the plaintiff’s complaint was, indeed, untimely
filed under Rule 4007(c). Following the literal “first date set” language in
Rule 4007(c), an “overwhelming majority of courts” have held that the sixty-day
limitations period in Rule 4007(c) runs from the date first set for the § 341
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creditors’ meeting, regardless of when the meeting was actually held. 3 Norton
Bankr. L. & Prac. § 47:68 (2000) (“overwhelming majority of courts”); see, e.g. ,
Peerless Ins. Co. v. Miller (In re Miller) , 228 B.R. 399, 401 (B.A.P. 6th Cir.
1999) (collecting cases). 1
We concur that Rule 4007(c) unambiguously provides
that a § 523(c) complaint to determine dischargeability must be filed within sixty
days of “the first date set” for the meeting of creditors.
This court has held that the time limits of Rule 4007(c) must be “strictly
enforced.” Themy v. Yu (In re Themy) , 6 F.3d 688, 689 (10th Cir. 1993).
Bankruptcy Rules 4007(c) and 9006(b)(3) “reflect an important policy or purpose
and their enforcement is basic to proper bankruptcy administration.” H.T. Paul
Co. v. Atteberry (In re Atteberry) , 194 B.R. 521, 525 (D. Kan. 1996) (quotation
omitted). Here, sixty days following the first date set for the meeting of creditors
was December 6, 1996. Plaintiff had actual notice of that bar date, yet did not
file her complaint by that deadline. Nor did she move for an extension of time
1
Rule 4007(c) was amended in 1999 to eliminate the word “held” and now
reads, “A complaint to determine the dischargeability of a debt under § 523(c)
shall be filed no later than 60 days after the first date set for the meeting of
creditors under § 341(a).” The advisory committee notes state that this
amendment was made “to clarify that the deadline for filing a complaint to
determine the dischargeability of a debt under § 523(c) of the Code is 60 days
after the first date set for the meeting of creditors, whether or not the meeting is
held on that date [and that t]he time for filing the complaint is not affected by
any delay in the commencement or conclusion of the meeting of creditors.”
Fed. R. Bankr. P. 4007(c) (Advisory Committee Notes).
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within which to file her complaint. See Rule 4007(c) and 9006(b)(3). Plaintiff
notes that we have recognized that a bankruptcy court has the equitable power
under 11 U.S.C. § 105(a) to allow a late-filed complaint when the bankruptcy
court was responsible for affirmatively misleading a litigant. See In re Themy ,
6 F.3d at 690. This exception, however, has no application here. Thus,
plaintiff’s complaint was untimely.
Plaintiff contends that defendant waived any objection to the untimeliness
of her complaint by failing to file a cross-appeal asserting this issue. Defendant
was not required to file a cross-appeal, however, because an appellee “may defend
the judgment won below on any ground supported by the record without filing
a cross-appeal.” Tinkler v. United States ex rel. F.A.A. , 982 F.2d 1456, 1461 n.4
(10th Cir. 1992) (quotation omitted).
The judgment of the United States District Court for the District
of Colorado dismissing plaintiff’s complaint is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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