Duffy Petit v. Fessenden

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           
                                                     
No. 95-1376

                      CATHERINE DUFFY PETIT,

                      Plaintiff, Appellant,

                                v.

               PETER C. FESSENDEN, TRUSTEE, ET AL.,

                      Defendants, Appellees.

                                           
                                                     
No. 95-1377

                      CATHERINE DUFFY PETIT,

                      Plaintiff, Appellant,

                                v.

               PETER C. FESSENDEN, TRUSTEE, ET AL.,

                      Defendants, Appellees.

                                           
                                                     
No. 95-1378

                      CATHERINE DUFFY PETIT,

                      Plaintiff, Appellant,

                                v.

               PETER C. FESSENDEN, TRUSTEE, ET AL.,

                      Defendants, Appellees.

                                           
                                                     

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]
                                                             

                                           
                                                     


                       Cyr, Circuit Judge,
                                                   

                  Bownes, Senior Circuit Judge,
                                                        

                    and Stahl, Circuit Judge.
                                                      

                                           
                                                     

   Stephen F. Gordon, with whom Gordon & Wise was on brief for
                                                       
appellant.
   Peter C. Fessenden, with whom John G. Connor, Law Office of John
                                                                             
G. Connor, James F. Molleur, Woodman & Edmands, P.A., U. Charles
                                                                        
Remmel, II, Kelly, Remmel & Zimmerman and Mark S. O'Brien, Special
                                                                 
Assistant United States Attorney, were on brief for appellees.

                                           
                                                     

                          April 3, 1996
                                           
                                                     

                                2


          CYR, Circuit Judge.    Plaintiff Catherine Duffy Petit,
                    CYR, Circuit Judge.
                                      

a  chapter 11  debtor,  appeals from  a  district court  judgment

affirming  a  bankruptcy  court  order allowing  the  chapter  11

trustee to reconvene  a meeting of creditors several months after

its indefinite adjournment, see Bankruptcy Code    341, 11 U.S.C.
                                         

  341; Fed. R.  Bankr. P. 2003, thereby purportedly  recommencing

the 30-day limitation period within which a trustee may interpose

objections to an exemption claim made by the debtor.  See Fed. R.
                                                                   

Bankr. P. 4003(b).  We affirm.

                                I
                                          I

                            BACKGROUND
                                      BACKGROUND
                                                

          In  June  1993,   creditors  initiated  an  involuntary

chapter 7 proceeding against Petit in the United States Bankrupt-

cy Court for the District of Maine.  The bankruptcy court entered

the  order for  relief  under chapter  7  on December  10,  1993,

following its denial of Petit's motion to dismiss the involuntary

petition.  See 11 U.S.C.   305(a).  One week later, Petit filed a
                        

motion to convert to chapter 11.  See id.   348.  At a hearing on
                                                   

February  2,  1994, and  over  the objection  of  the petitioning

creditors, the  bankruptcy court directed  entry of an  order for

relief  under chapter 11, and took  under advisement the appoint-

ment of a chapter 11 trustee.  

          Petit   filed  her   statement  of   financial  affairs

(Official  Form 7)  and  schedules (Official  Form 6),  including

Schedule C (Property  Claimed as  Exempt), see id.    521(1),  on
                                                            

February  25,  1994,  asserting  a claim  to  certain  exemptions

                                3


prescribed under federal law, see id.    522(d)(11)(A) ("an award
                                               

under  a crime  victim's reparation  law"); 522(d)(11)(D)  ("pay-

ment[s],  not to  exceed  $7500, on  account  of personal  bodily

injury").   In Schedule B, Petit listed as an exempt asset, inter
                                                                           

alia, the entire anticipated  proceeds from a pending state-court
              

action against Key Bank,  having an estimated value in  excess of

$25  million.   On March  28, 1994,  the  order for  relief under

chapter 11 was entered on the bankruptcy court docket.

          The United States Trustee  convened a meeting of credi-

tors on May  17, 1994.  See  id.   341;  Fed. R. Bankr. P.  2003.
                                          

Before it ended, the meeting  of creditors was "continued without

date" by the Assistant  United States Trustee.   On June 17,  the

bankruptcy court approved  the appointment of  defendant-appellee

Peter  Fessenden, Esquire, as the chapter 11 trustee.  Two months

later,  on August 22, Fessenden  filed objections to  the list of

property claimed as  exempt by Petit,  particularly her claim  to

the anticipated  proceeds from  the pending legal  action against

Key  Bank.  Petit responded that the objection was time-barred by

Fed. R.  Bankr. P. 4003(b), because  it was not filed  until more

than  30 days after the "conclusion" of the meeting of creditors.

See Taylor v.  Freeland & Kronz, 112 S. Ct. 1644, 1648-49 (1992).
                                         

Fessenden meanwhile sent a notice to creditors that the continued

meeting of  creditors  would be  reconvened on  October 20,  thus

purportedly  extending    until at least 30 days after October 20

    the time for  filing any  objection to  the list  of property

claimed  exempt  and  rendering  timely the  objection  filed  by

                                4


Fessenden on August 22. 

          Petit then  sought to quash the  notice reconvening the

meeting  of creditors,  contending  in the  alternative that  (1)

Bankruptcy Code   341  permits only the United States  Trustee or

an express  "designee"     and  not  an undesignated  chapter  11

trustee    to convene a meeting of creditors and  that the United

States Trustee had objected to reconvening  the meeting of credi-

tors  scheduled by  Fessenden; or  (2)  the 30-day  deadline pre-

scribed in Bankruptcy Rule 4003(b)  for objecting to an exemption

claim cannot be  enlarged, citing the  Supreme Court decision  in

Taylor,  112 S. Ct. at 1648 ("[Rule 4003(b)] [d]eadlines may lead
                

to  unwelcome results, but they prompt parties to act and produce

finality.").  But cf.  Mercer v.  Monzack, 53  F.3d 1  (1st Cir.)
                                                   

(distinguishing Taylor),  petition for  cert. filed, 64  U.S.L.W.
                                                             

3439  (U.S. Dec.  12,  1995) (No.  95-970).   Petit  argued  that

allowing  trustees  to  circumvent  Taylor,  through  the  simple
                                                    

expedient  of  routine, indefinite  adjournments  of  meetings of

creditors, would deprive chapter 11 debtors of the benefit of the

very policies of repose and finality acknowledged by the  Supreme

Court in  Taylor.  Petit urged, at the very least, that a meeting
                          

of  creditors adjourned  without  day be  deemed "concluded"  for

purposes of the  Rule 4003(b)  time-bar if, as  here, the  United

States Trustee (or chapter 11 trustee) fails  to announce, within

30  days  of the  adjournment, a  firm  date for  reconvening the

meeting of creditors.  See In re Levitt, 137 B.R.  881 (Bankr. D.
                                                 

Mass. 1992); infra note 2.
                            

                                5


          The bankruptcy  court first denied the  motion to quash

the notice reconvening the  continued meeting of creditors, then,

after it had been reconvened, ruled that the  Fessenden objection

to  Petit's exemption claim was not time-barred, In re Petit, 172
                                                                      

B.R.  706 (Bankr. D. Me. 1994) (Votolato, B.J.);1 Petit, 174 B.R.
                                                                 

868 (Bankr. D. Me.  1994) (Votolato, B.J.).2  The  district court
                    
                              

     1The  bankruptcy   court  ruled  that   Fessenden  possessed
unilateral  authority  to  reconvene  the  meeting  of  creditors
because Bankruptcy Code    102(9) defines the term "United States
trustee" to include a "designee,"  the term "designee" is synony-
mous with the term "appointee," and the United States Trustee had
appointed Fessenden as the chapter 11  trustee.  In light of  our
holding, we need not resolve this question.

     2The  bankruptcy  court  sustained  the  objections  on  the
following  grounds.   First,  it found  In  re Levitt  inapposite
                                                               
because the indefinite adjournment of the meeting of creditors by
the  chapter  7 trustee  in that  case  had been  followed  by an
unreasonable 15-month delay in reconvening the meeting.  Treating
                               
the  "reasonableness" of any  delay in  reconvening a  meeting of
creditors  as a matter  requiring case-by-case determination, the
bankruptcy court  noted several factors which  indicated that the
delay in this case was not  unreasonable:  (1) Fessenden did  not
become  the chapter 11 trustee until after the initial meeting of
creditors, in  part because Petit, a  "particularly litigious and
obstructionist" debtor, had opposed  the appointment of a chapter
11 trustee; (2)   the Fessenden  appointment, which occurred  the
same day the 30-day period  prescribed in Bankruptcy Rule 4003(b)
expired,  followed the unexpected  withdrawal or disqualification
of  other  potential  chapter  11 trustee  candidates;  (3)  thus
Fessenden was relegated to the role of a  mere "spectator" at the
initial May 17 meeting  of creditors, and did not  participate in
questioning  Petit  regarding her  schedules;  (4)  the Assistant
United  States Trustee had informed Petit  at the initial meeting
of creditors  that  although  it  was  unlikely  the  meeting  of
creditors  would  be  reconvened,  "some  special  reason"  might
require  it; and  (5)  Fessenden filed  objections  to the  Petit
exemption claims 66 days after his appointment. 
     On the  merits, the bankruptcy court found  the Petit exemp-
tion claims here  at issue  frivolous, for two  reasons.   First,
                                               
Maine law does not permit residents to elect the federal slate of
property exemptions, and  Petit's contention that  she was not  a
Maine resident was found to be "farcical."  Her real and personal
property was all located in Maine, where she also voted, received
her  mail,  and secured  her driver's  license.   She  adduced no

                                6


affirmed.  Petit v. Fessenden (In re Petit), 182 B.R.  59 (D. Me.
                                                    

1995); Petit, 182 B.R. 57 (D. Me. 1995).
                      

                                II
                                          II

                            DISCUSSION
                                      DISCUSSION
                                                

A.   Standard of Review
          A.   Standard of Review
                                 

          In a bankruptcy appeal, the  conclusions of law made by

the district  court are subject  to plenary  review; whereas  the

facts found by the  bankruptcy court are reviewed only  for clear

error.   See  Indian Motocycle  Assocs. III  Ltd. Partnership  v.
                                                                       

Massachusetts Hous.  Fin. Agency (In re  Indian Motocycle Assocs.
                                                                           

III Ltd. Partnership), 66 F.3d 1246, 1249 (1st Cir. 1995).    
                              

B.   The Claim of Exemptions
          B.   The Claim of Exemptions
                                      

          Although Petit  renews on appeal most  of the arguments

made below, we do not reach them, see Juniper Dev.  Group v. Kahn
                                                                           

(In re Hemingway Transp.), 993 F.2d 915, 935 (1st Cir.) (court of
                                  

appeals  may affirm  on  any ground  established  by the  record,

whether  or not  raised or  addressed in  the  bankruptcy court),

cert. denied,  114 S. Ct. 303  (1993), since she has  not met the
                      

first indispensable precondition to  a valid claim of exemptions:

a  timely claim of exemptions.    See Fed. R. App. P. 11(a); Byrd
                                                                           
                    
                              

concrete  evidence that she had  resided in Massachusetts for 180
days prior to the  involuntary chapter 7 petition.   Second, even
if  Petit had been  permitted by Maine  law to claim  the federal
exemptions,  she had  not  established that  the pending  lawsuit
against Key Bank involved a claim arising "under a crime victim's
reparation  law," see  11 U.S.C.    522(d)(11)(A),  or for  "pay-
                               
ment[s] .  . . on account  of personal bodily injury,"  see id.  
                                                                         
522(d)(11)(D).   Further, Petit had not  claimed these exemptions
under    522(d) (11)(E)  (compensation for "loss  of future earn-
ings") because Schedule C did not cite to   522(d)(11)(E). 

                                7


v. Ronayne, 61  F.3d 1026,  1029 n.4 (1st  Cir. 1995)  (appellant
                    

must  include  in appellate  record  all  materials essential  to

appellate claim).  

          A debtor must list the property claimed as exempt under

Bankruptcy Code   522 within the applicable time limit prescribed

in Bankruptcy  Rule 1007.   See  Fed. R. Bankr.  P. 4003(a).   An
                                         

alleged  debtor  in  an  involuntary case  must  file  schedules,

including any Schedule  C    Property Claimed as  Exempt, "within

15 days after the entry of the  order of relief."  Fed. R. Bankr.

P. 1007(c).  Schedules duly filed in a chapter 7 case are "deemed

filed in a superseding case  unless the court directs otherwise."

Id.    Any extension of the filing  deadlines prescribed by Bank-
             

ruptcy  Rule 1007(c)  "may be  granted only  on motion  for cause

shown and  on  notice to  the United  States trustee  and to  any

committee  elected pursuant to    705 or appointed  pursuant to  

1102 of the Code, trustee, examiner,  or other party as the court

may  direct."   Id.;  see  also  Fed.  R.  Bankr.  P.  9006(b)(1)
                                         

(imposing a  heightened showing of "excusable  neglect" where the

motion to extend the time for filing is made after the expiration

of the original 15-day filing period). 

          Petit  filed no  schedules  until  February  25,  1994,

despite the fact  that the order for  relief under chapter 7  had

been entered on December 10, 1993, which meant that her schedules

were due not later than December 26, 1993, absent a timely motion

to extend the filing period for cause shown or excusable neglect.

Nonetheless, no request to  extend the filing time was  ever made

                                8


pursuant to Bankruptcy Rule 1007(c).  See, e.g., Bryant v. Smith,
                                                                          

165  B.R.  176, 181-82  (W.D. Va.  1994)  ("The court  finds that

untimely filed  schedules waive  a debtor's exemption  unless the

untimely  filing  is permitted  by  the bankruptcy  judge  in his

discretion for cause shown or excusable neglect.").  

          During  the 15-day window allowed under Bankruptcy Rule

1007(c), Petit did file a motion to convert the chapter 7 case to

chapter 11, but this motion neither excused the failure to comply

with  Bankruptcy  Rule  1007(c),  nor tolled  the  15-day  filing

period.  Finally, the automatic "deeming" provision in Bankruptcy

Rule  1007(c),  see supra  p. 8,  can afford  no refuge  since no
                                   

chapter 7  schedules were  ever filed.   Nor did  the chapter  11

schedules eventually filed by  Petit cure her procedural default.

          First, although  an order of conversion  constitutes an

"order for  relief" under the chapter  to which the case  is con-

verted, see 11 U.S.C.    348(a), it "does not effect a  change in
                     

the date of . . . the order for relief."  That is to say, "[s]ec-

tion 348(a) provides that 'those provisions of the Code which are

keyed to  the date of  entry of  the order for  relief for  their

operation are unaffected . . .  by conversion.'"  F & M Marquette
                                                                           

Nat'l Bank v. Richards, 780 F.2d 24, 25  (8th Cir. 1985) (quoting
                                

2  Lawrence P.  King, Collier  on Bankruptcy    348.02  (15th ed.
                                                      

1979)); see Schwartz v. Jetronic Indus., Inc. (In re Harry Levin,
                                                                           

Inc.), 175 B.R. 560, 570 (Bankr. E.D. Pa. 1994); Leydet v. Leydet
                                                                           

(In re  Leydet), 150 B.R. 641, 642 (Bankr. E.D. Va. 1993).  Since
                        

                                9


the  time  limits  prescribed  in Bankruptcy  Rules  1007(c)  and

4003(a) are  keyed to the date of the order for relief, which had

already been entered on  December 10, 1993, the order  of conver-

sion could  not  effect  an automatic  extension  of  the  15-day

deadline (December 26, 1993) for filing schedules.

          Second, Petit inexplicably made matters more problemat-

ic by disregarding a  ready opportunity, and her  clear responsi-

bility, to  cure  the procedural  default  by complying  with  an

explicit bankruptcy court order directing  her to file chapter 11

schedules not later than February 23,  1994.  See Fed. R.  Bankr.
                                                           

P. 9006(b), (c).    Instead,  Petit failed  to file the  required

chapter  11 schedules  until  February 25,  two  days beyond  the

deadline.   Thus, Petit's  chapter 11 schedules  were time-barred

even  viewed in the most  favorable light, without  regard to her

failure to notify the  United States Trustee of her  intention to

request  an extension under Rule  4003(a) or to  allege or demon-

strate  either  excusable neglect  or good  cause.   See  Fed. R.
                                                                  

Bankr. P. 1007(c), 9006(b)(1). 

          The Taylor Court recognized that a debtor should not be
                              

indefinitely  or  unreasonably  delayed  in  reacquiring property

while the trustee  or creditors  ponder whether or  not to  lodge

objections  to a claim of exemptions.   See Taylor, 112 S. Ct. at
                                                            

1644; In re Young, 806  F.2d 1303, 1305 (5th Cir. 1987);  Fed. R.
                           

Bankr.  P.  4003(b), 9006(b)(3)  (trustee  must  move for  filing

extension  before  end of  30-day period).    Unless and  until a

debtor files a  timely claim of exemptions, however,  as required

                                10


by  the Bankruptcy  Code  and  the  Federal Rules  of  Bankruptcy

Procedure,  there is no "list of property claimed exempt" for the

trustee or creditors  to oppose.   See, e.g.,  Redfield v.  Peat,
                                                                           

Marwick and Co. (In re Robertson), 105 B.R. 440, 450 (Bankr. N.D.
                                          

Ill.  1989) ("The Debtor and  other Defendants here  who seek the

normal  benefit that flows from  a timely claim  of exemption not

timely objected to, rest  their contention on a  late-filed claim

that the Court never allowed to be filed. . . . In this case, the

exemption claim  late-filed without  notice, motion, or  leave of

Court,  is not entitled to the automatic allowance that Bankr. R.

4003(a) gives to  a timely  filed exemption  claim if  it is  not

timely objected to.   He who seeks  to benefit by the  Bankruptcy

Rules must abide by them.").  In these circumstances, the princi-

ple of repose relied  upon in Taylor supports the  rulings below.
                                              

Taylor, 112 S. Ct. at 1648 ("[Rule 4003(b)] deadlines may lead to
                

unwelcome results, but  they prompt  parties to  act and  produce

finality.").3 

          The district court judgment is affirmed and the case is
                    The district court judgment is affirmed and the case is
                                                                           

remanded to the bankruptcy  court for further proceedings consis-
          remanded to the bankruptcy  court for further proceedings consis-
                                                                           

tent with this opinion.  Costs are awarded to appellees.   
          tent with this opinion.  Costs are awarded to appellees.
                                                                 

                    
                              

     3In  opposing Petit's  claim of  exemptions, the  chapter 11
trustee agreed, in principle,  not to oppose her claim  of exemp-
tions insofar as it pertained to legitimate state-law exemptions,
if any.  Consequently,  we express no opinion on  the preliminary
and  related  question whether,  upon  remand  to the  bankruptcy
court, Petit  should prevail on any motion  to extend the time in
which  to file  such  a claim  of  exemptions for  good  cause or
excusable neglect.

                                11