NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re. DONALD CHARLES No. 12-17359
SCHWARTZ,
D.C. No. 5:09-cv-05831-EJD
Debtor,
_______________________________ MEMORANDUM*
DAVID A. WASNEY, SR.,
Plaintiff-Appellant,
v.
DONALD CHARLES SCHWARTZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted November 21, 2014**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: THOMAS and CHRISTEN, Circuit Judges, and SEABRIGHT, *** District
Judge.
David A. Wasney, Sr., appeals the district court’s order affirming the
bankruptcy court’s dismissal of his 11 U.S.C. § 523(c) adversary complaint against
Donald Schwartz as untimely under Federal Rule of Bankruptcy Procedure
4007(c). We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1), and we affirm.
Wasney concedes that his adversary complaint was filed one day after the
bar date. He sought equitable tolling or other equitable relief. The bankruptcy
court, however, lacked equitable power to grant Wasney relief from the untimely
filing. See Anwar v. Johnson, 720 F.3d 1183, 1187 (9th Cir. 2013). “[W]e have
repeatedly held that [Rule 4007(c)’s deadline] . . . is ‘strict’ and, without
qualification, ‘cannot be extended unless a motion is made before the 60-day limit
expires.’” Id. (quoting In re Kennerley, 995 F.2d 145, 146 (9th Cir. 1993)) (other
citations omitted).
Even if applicable, Wasney has not demonstrated “unique and exceptional
circumstances” that might warrant relief from Rule 4007(c)’s strict time limit. Id.
at 1187–88 & n.6. Wasney’s counsel’s declaration does not establish that an
emergency situation prevented the filing, or that a court explicitly misled him. See
***
The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.
2
In re Kennerley, 995 F.2d at 148 (“[T]he unique circumstances exception would
appear to be limited to situations where a court explictly misleads a party.”).
AFFIRMED.
3