In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3358
IN RE:
B RUCE S. S MITH, M.D.,
Debtor.
T RINA T IDWELL and S ANDRA S TERLING-A HLLA,
Plaintiffs-Appellees,
v.
B RUCE S. S MITH, M.D.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 46—Harry D. Leinenweber, Judge.
A RGUED M AY 14, 2009—D ECIDED S EPTEMBER 23, 2009
2 No. 08-3358
Before R OVNER and E VANS, Circuit Judges, and
V AN B OKKELEN, District Judge.
R OVNER, Circuit Judge. When defendant-appellant
Dr. Bruce S. Smith filed a Chapter 7 bankruptcy petition
in September 2005, he failed to include appellees Trina
Tidwell and Sandra Sterling-Ahlla on his schedule of
creditors holding unsecured, nonpriority claims. Tidwell
and Sterling-Ahlla had sued Smith in state court for
sexual assault. Because Smith omitted Tidwell and
Sterling-Ahlla from his list of creditors, neither of them
was sent notice of his bankruptcy petition. Their
counsel learned of Smith’s pending bankruptcy only
weeks before his discharge and took no action at that time.
Roughly one year after the discharge, Tidwell and
Sterling-Ahlla (whom we shall also refer to as the “plain-
tiffs”) filed motions asking the bankruptcy court for
leave to proceed with their lawsuits against Smith, along
with adversary complaints asking the court to declare
their claims against Smith nondischargeable pursuant
to 11 U.S.C. § 523(a)(3)(B) and (a)(6). Following an evi-
dentiary hearing, the court granted their request in
part. The court found that Smith had deliberately and
fraudulently failed to schedule the plaintiffs’ claims and
that their counsel had not been put on notice of the bank-
ruptcy in time enough to permit them to seek a declara-
tion of nondischargeability prior to Smith’s discharge.
The Honorable Joseph S. Van Bokkelen, of the Northern
District of Indiana, sitting by designation.
No. 08-3358 3
Tidwell v. Smith (In re Smith), 379 B.R. 315 (Bankr.
N.D. Ill. 2007). The court therefore granted Tidwell and
Sterling-Ahlla leave to proceed with their suits against
Smith in state court and reserved judgment as to whether
their claims were in fact nondischargeable pursuant to
section 523(a)(6) until such time as they prevailed in the
state-court litigation. Smith appealed to the district court,
which affirmed the bankruptcy court’s decision. Smith v.
Tidwell (In re Smith), No. 08 C 46, 2008 WL 4067306
(N.D. Ill. Aug. 27, 2008).
Smith again appeals, contending that the evidence does
not support the bankruptcy court’s findings that he
deliberately omitted Tidwell and Sterling-Ahlla from his
schedule of unsecured creditors and that they did not
become aware of his bankruptcy in time to seek a de-
claration of nondischargeability before the bankruptcy
proceeding was closed. We agree with the lower courts
that the eleventh-hour notice of the bankruptcy that
Tidwell and Sterling-Ahlla received did not afford them
sufficient time in which to protect their rights before
Smith was discharged. Their post-discharge complaints
were therefore timely, and we affirm on that basis with-
out reaching the question of whether Smith omitted
Tidwell and Sterling-Ahlla from his list of unsecured
creditors with fraudulent intent.
I.
Tidwell and Sterling-Ahlla separately filed suit against
Smith in the Circuit Court of Cook County, Illinois on
December 18, 2003. Each alleged that Smith, a physician
4 No. 08-3358
specializing in obstetrics and gynecology, had unlawfully
engaged in sexual intercourse with her during a routine
prenatal examination.
Smith first sought the protection of Chapter 7 in a
petition filed on June 24, 2004. By the terms of 11 U.S.C.
§ 521(1) and Fed. R. Bankr. P. 1007(a)(1), he was required
to identify all creditors holding unsecured, nonpriority
claims on Schedule F of his petition. The clerk of the
bankruptcy court in turns sends notice of the filing of a
bankruptcy petition to all identified creditors, including
those on Schedule F. See Fed. R. Bankr. P. 2002. Smith
did not list Tidwell and Sterling-Ahlla by name on that
schedule, but he did list their attorney, Darryl Robinson,
indicating (incorrectly) that Robinson represented the
unidentified plaintiffs in a “medical malpractice claim.”
Bankr. No. 04-23845, Doc. No. 1 at 6. Robinson, presum-
ably, received notice of the petition as a result: the
service list for the notice of bankruptcy mailed on June 25,
2004 indicates that he was among those creditors who
were served with notice. Id., Doc. No. 5 at 3.1 However,
the bankruptcy court dismissed the 2004 petition on the
motion of the United States Trustee, who argued that
in view of Smith’s ongoing employment, substantial
income, and unreasonably high monthly expenses, dis-
charging his debts pursuant to Chapter 7 rather than
1
Although the statute and bankruptcy rules require a debtor to
identify his creditors by their own names, rather than by their
representatives, the bankruptcy court found that notice to
Robinson constituted notice to his clients. 379 B.R. at 324 n.2.
No. 08-3358 5
funding a repayment plan pursuant to Chapter 13
would amount to a “substantial abuse” of Chapter 7’s
provisions. See 11 U.S.C. § 707(b). The case was dismissed
on November 23, 2004, and the proceeding was closed
and the trustee was discharged on January 31, 2005.
After Smith’s financial situation deteriorated further
with the loss of his job, he filed a second Chapter 7 bank-
ruptcy petition on September 26, 2005. The attorney who
prepared Smith’s second petition was not the same one
who prepared his first petition. However, Smith’s new
counsel worked for a firm that specializes in bank-
ruptcy, he was experienced with Chapter 7 cases, and he
had a copy of the 2004 petition which he referenced in
preparing the new petition. The lawsuits filed by Tidwell
and Sterling-Ahlla were identified in the Statement of
Financial Affairs attached to the 2005 petition, but neither
they nor their attorney was listed on Schedule F. The
bankruptcy clerk mailed notices to the scheduled
creditors on September 27, 2005, indicating that Smith
had filed a bankruptcy petition, noting the automatic
stay of collection and other actions against the debtor,
and setting forth a number of important dates, including
that of the creditors’ meeting (November 8, 2005), and
the deadline for filing a complaint objecting to the dis-
charge of the debtor or to determine the dischargeability
of any debt (January 9, 2006). As a result of their omission
from Schedule F, neither Tidwell nor Sterling-Ahlla
(nor their attorney) received that notice. Prior to Decem-
ber 23, 2005, Smith made no attempt to invoke the auto-
matic stay in the state-court suits filed by Tidwell and
Sterling-Ahlla, and he did not otherwise notify the
state court, Tidwell, or Sterling-Ahlla of the stay.
6 No. 08-3358
Section 523(a)(6) of the Bankruptcy Code exempts
from discharge any debt “for willful or malicious injury
by the debtor to another entity or to the property of
another entity,” and because the lawsuits filed by Tidwell
and Sterling-Ahlla allege that Smith sexually assaulted
them, their claims against Smith are potentially
nondischargeable under that provision. See generally
Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S. Ct. 974, 977
(1998); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994); see
also, e.g., In re Fors, 259 B.R. 131, 137 (8th Cir. B.A.P. 2001);
Pettey v. Belanger ex rel. Belanger, 232 B.R. 543, 546-47
(D. Mass. 1999). A creditor who holds such a debt is
obliged to file a proof of claim and a timely request
that the bankruptcy court determine the debt to be
nondischargeable. 11 U.S.C. § 523(c)(1); see also
§ 523(a)(3)(B); Fed. R. Banker. P. 4007(a). The failure to
take that step will result in the discharge of the claim.
§ 523(c)(1); In re Mendiola, 99 B.R. 864, 866 (Bankr. N.D.
Ill. 1989). Bankruptcy Rule 4007(c) allows a creditor sixty
days from the first date set for the creditors’ meeting
in which to file a complaint to determine the
dischargeability of a debt. In this case, the creditors’
meeting was set for November 8, 2005; therefore, the
presumptive deadline for seeking a determination that
a debt was nondischargeable was January 8, 2006 (sixty-
one days after the creditors’ meeting, as the sixtieth day
fell on a Sunday), see 379 B.R. at 321 ¶ 11, although the
notice to creditors identified the deadline as January 9,
2006. Because they were omitted from Smith’s Schedule F,
neither Tidwell nor Sterling-Ahlla received notice of the
creditors’ meeting, and as of January 9, 2006, they had
No. 08-3358 7
taken no steps to have their claims against Smith
declared nondischargeable. The creditors’ meeting on
November 8, 2005, resulted in a no-asset report by the
trustee. On January 17, 2006, the bankruptcy court issued
a discharge order, and on January 23, 2006, the Chapter 7
proceeding was closed. Pursuant to 11 U.S.C. § 727(b), that
order discharged Smith from all prepetition debts except
as provided in section 523, which sets forth the various
categories of debts which are exempt from discharge.
The discharge also operated as an injunction against the
commencement or continuation of any action to collect
from Smith any debt from which he was discharged as a
result of the bankruptcy proceeding. See 11 U.S.C.
§ 524(a)(2).
Tidwell and Sterling-Ahlla were first placed on notice
of Smith’s bankruptcy in late December 2005, when the
attorneys defending Smith in their lawsuits filed
motions asking the state court to transfer the suits to
that court’s bankruptcy calendar. Copies of these
motions were served by fax on Robinson, the attorney
representing Tidwell and Sterling-Ahlla, on December 23,
2005, the day after they were filed. Robinson was out
of town on December 23, and he remained unaware of
the motions until he returned to his office on or about
January 4, 2006. Beyond stating generally that Smith had
filed a bankruptcy petition and that notice of the bank-
ruptcy had been issued, the motions did not provide
any information about the status of the bankruptcy—e.g.,
when or whether there had been a creditors’ meeting or
by what date objections to the dischargeability of a debt
were due. The state court granted Smith’s motion on
8 No. 08-3358
January 6, 2006, and the two lawsuits were placed on
dormant status on the court’s bankruptcy calendar.
Just shy of a year later, on December 20, 2006, Tidwell
and Sterling-Ahlla filed motions with the bankruptcy
court seeking a declaration that Smith’s discharge had
no effect on their lawsuits and that they were free to
proceed against Smith in state court. The motions
noted that because Smith had omitted Tidwell and
Sterling-Ahlla from his list of unsecured creditors
despite knowing of their suits, they remained ignorant
of his bankruptcy petition until he asked the state court
to transfer their suits to the bankruptcy calendar. The
bankruptcy court continued the hearing on the motions
in order to allow Tidwell and Sterling-Ahlla to prepare
adversary complaints against Smith, which they filed
on January 8, 2007. As amended, the complaints alleged
that because Smith had committed the intentional tort
of sexual assault and was subject to punitive damages,
their claims were exempt from discharge pursuant to
section 523(a)(6) and that they were entitled to a declara-
tion to that effect. Alternatively, the complaints sought
relief under section 727, which in relevant part permits
a creditor within one year of the discharge to ask that
the discharge be revoked on the ground that it was ob-
tained through the debtor’s fraud. See § 727(d)(1) and
(e)(1).2 The bankruptcy court denied Smith’s motion to
2
Although the complaints also cited section 726 of the Bank-
ruptcy Code, it was obvious, as the bankruptcy court recog-
(continued...)
No. 08-3358 9
dismiss the complaints as untimely and set the complaints
and the motions for leave to proceed with the state-court
lawsuits down for a hearing on the merits.
The court subsequently received testimony regarding
both the omission of Tidwell and Sterling-Ahlla from
the list of Smith’s unsecured creditors and the notice
that their attorney, Robinson, had received in Decem-
ber 2005 regarding the request to transfer their suits to the
state court’s bankruptcy calendar. On the latter point,
Chykola Jones, the office clerk at Robinson’s law firm,
testified that it was her practice to place incoming corre-
spondence, including faxes, on the recipient’s desk. Jones
also testified that she is not an attorney and has not
worked for attorneys who practiced bankruptcy law,
and thus would not have appreciated the significance of
the motions to transfer that were faxed to Robinson.
Smith’s bankruptcy attorney, Nathaniel Sinn, then
testified regarding the preparation of Smith’s second
bankruptcy petition. At the time he prepared that petition
in 2005, Sinn worked for the Chicago office of Legal
Helpers, a firm that specializes in consumer bankruptcies.
Although Sinn had been practicing law for less than a
year, and had been working on bankruptcy matters for
only seven or eight months, he had helped to prepare
several hundred Chapter 7 petitions in that time. Typically,
a law clerk or legal assistant in the office would prepare
2
(...continued)
nized, that the plaintiffs meant to rely on section 727, which
deals with the discharge of the debtor. 379 B.R. at 323.
10 No. 08-3358
a first draft of the petition, the draft would then be sent
to the client for corrections, and then Sinn would meet
with the client to review the revised draft before the
petition was signed and filed. Sinn understood that
Tidwell and Sterling-Ahlla, as unsecured creditors of
Smith, should have been included in Schedule F. He
further testified that when a debtor has filed a previous
bankruptcy petition, he will compare that petition with
the one he is working on; and Sinn recalled that he had
a copy of Smith’s 2004 petition and schedules, which of
course listed Robinson as the plaintiffs’ representative.
He also reviewed the completed petition with Smith
before Smith signed it. In the course of that review,
Sinn went through the listed creditors and asked Smith
whether there were any others that had not been listed;
had Smith identified anyone else, he would have
added them to the list of creditors. Sinn testified that
Smith never asked him to withhold any creditors from
the petition, and he would not have done so had Smith
asked. Sinn could not explain why, in preparing the
2005 petition, the suits filed by Tidwell and Sterling-Ahlla
were included in the Statement of Financial Affairs but
neither Tidwell nor Sterling-Ahlla were identified as
unsecured creditors in Schedule F. He testified that the
omission was “just an error” on his part, R. 5 Ex. A at 31,
and not a deliberate act of fraud or deception. He attrib-
uted the mistake to the heavy workload that he and his
firm were experiencing as debtors rushed to file for bank-
ruptcy before the less consumer-friendly provisions of
the Bankruptcy Abuse Prevention and Consumer Protec-
tion Act of 2005 took effect in October 2005. Finally, Smith
No. 08-3358 11
himself testified. Smith acknowledged that he had the
opportunity to and did review his second bankruptcy
petition before it was filed. Like Sinn, Smith denied
that the omission of Tidwell and Sterling-Ahlla from
Schedule F reflected an effort to hide their claims. Smith
said that he did not appreciate the significance of the
fact that Tidwell and Sterling-Ahlla had been omitted
from Schedule F. He relied on Sinn to prepare the
petition and make the appropriate disclosures; and it
was his understanding that everything that had been
disclosed on his first petition was included in the sec-
ond. In response to questions posed by the court, Smith
disclosed that his former employer had failed to
purchase an insurance “tail rider” extending his claims-
made coverage for medical malpractice. Although
Smith’s insurer was providing him with a defense to
the suits filed by Tidwell and Sterling-Ahlla, it was his
understanding that he alone would be liable to pay any
judgment entered against him in those suits.
After hearing the evidence, the bankruptcy court con-
cluded that the plaintiffs were entitled to proceed in
state court against Smith, and it entered an order to that
effect. Two key findings led the court to that conclusion.
First, the court found that Smith’s omission of Tidwell
and Sterling-Ahlla from the Schedule F he filed was
deliberate rather than inadvertent. When Smith signed
the 2005 petition, he subscribed to an oath that he had
read the schedules included with the petition and that
they were true and correct to the best of his knowledge.
379 B.R. at 320 ¶ 6. In fact, Schedule F was incomplete,
12 No. 08-3358
and because Smith was aware of the state-court litiga-
tion, had mentioned that litigation in his Statement of
Financial Affairs, had listed the attorney representing
Tidwell and Sterling-Ahlla in the Schedule F he filed
in support of his 2004 bankruptcy petition, and had a
financial motive for omitting the litigation from Schedule
F (as it was unlikely that his insurer would cover any
judgment entered against him), the court deemed Smith’s
oath to be “intentionally false.” 379 B.R. at 320 ¶ 7. The
court rejected attorney Sinn’s testimony that the
omission of Tidwell and Sterling-Ahlla resulted from a
simple error on his part. The court pointed out that Sinn
was knowledgeable and experienced in the preparation
of Chapter 7 bankruptcy petitions, that he typically
consulted the Schedule F filed with a prior bankruptcy
petition in preparing a second one, that he always re-
viewed the Statement of Financial Affairs before
finalizing the petition, and that he had included the suits
Tidwell and Sterling-Ahlla had filed in the Statement of
Financial Affairs. In view of those facts, the court found it
implausible that the failure to also include the suits on
Schedule F was a mere oversight. Id. at 320-21 ¶ 8.
Second, although the plaintiffs’ counsel, Robinson, did
receive notice of the 2005 bankruptcy before the deadline
for objecting to the dischargeability of any debt expired
and before Smith was granted a discharge, the court
deemed the notice too late and insufficiently enlightening
to obligate Robinson to act at that time. Id. at 327-30. The
court acknowledged that, pursuant to section 523(a)(3)(B),
an unscheduled, nondischargeable debt will be dis-
charged so long as the creditor had notice or actual knowl-
No. 08-3358 13
edge of the bankruptcy in time to object to the discharge-
ability of the debt. Id. at 326. The court summarily
rejected as “absurd” Smith’s assertion that because the
plaintiffs’ claims were scheduled in his 2004 bankruptcy
petition, Tidwell and Sterling-Ahlla somehow should
have known of his 2005 petition, notwithstanding the
fact that they were never served with notice of the
second petition as a result of their omission from his list
of creditors. Id. at 324. On the other hand, the court did
agree that when Robinson’s office was served by fax on
December 23, 2005, with a copy of Smith’s motion to
transfer the two suits to the state court’s bankruptcy
calender, he was provided with actual notice of the pend-
ing bankruptcy, and through him Tidwell and Sterling-
Ahlla were also given notice. Id. at 327. But due process
entitled the plaintiffs to reasonable notice. Id. at 326-27.
In the court’s view, that meant notice which alerted
the plaintiffs to key deadlines in time enough for them
to take action in compliance with those deadlines. Id. at
327-30. By the time Robinson received the fax, Smith’s
bankruptcy petition had been pending for nearly ninety
days, the creditors’ meeting had been held more than a
month earlier, and the deadline for filing objections to
the dischargeability of a debt was just sixteen days off.
See 379 B.R. at 328.3 Moreover, the motion served on
Robinson gave no warning of the imminent bar dates. Id.
3
The court was assuming that the deadline for objecting to the
dischargeability of a debt was January 8, 2006, although the
notice sent to creditors had specified January 9, 2006, as the
deadline.
14 No. 08-3358
Under those circumstances, the court concluded that the
belated notice Tidwell and Sterling-Ahlla were given of
Smith’s bankruptcy did not supply them with sufficient
time and information to take appropriate action while
the bankruptcy proceeding was still open. Id. at 327-30.
The bankruptcy court consequently deemed Count I of
the plaintiffs’ adversary complaints to have been timely
filed and allowed their complaints to stand as an objec-
tion to dischargeability pursuant to sections 523(a)(3)(B),
523(a)(6), and 523(c)(1), id. at 330, 331; and the court
indicated that the discharge injunction would be
amended to allow the plaintiffs’ state-court cases to
proceed to final judgment, id. at 331. The court dismissed
Counts II and III of their adversary complaints, which
had sought revocation of the discharge pursuant to
section 727(d)(1). Id. at 325, 327. Relief under that pro-
vision is appropriate when the debtor procured his dis-
charge through fraud, and the party requesting revo-
cation did not learn of the fraud until after the discharge
was granted. Id. at 325; see, e.g., Citibank, N.A. v. Emery (In
re Emery), 132 F.3d 892, 895 (2d Cir. 1998); United States
v. Willey, 57 F.3d 1374, 1392 n.33 (5th Cir. 1995). Those
requirements normally are read strictly in favor of the
debtor, as revoking a discharge reinstates all debts and
thus wholly deprives the debtor of the fresh start that
Chapter 7 is intended to give him. 379 B.R. at 325; see
Wood v. Cochard (In re Cochard), 177 B.R. 639, 642 (Bankr.
E.D. Mo. 1995). Here, Tidwell and Sterling-Ahlla became
aware of Smith’s bankruptcy in advance of his discharge,
obviously knew that they had not been properly notified
of the bankruptcy, and with quick investigation might
No. 08-3358 15
have determined before the discharge issued that Smith’s
failure to include them on his list of unsecured creditors
was intentional. Still, given that they had only days in
which to make that determination, the court was willing
to assume that the plaintiffs were not on notice of the
fraud until after the discharge and that they were
entitled to seek revocation of the discharge. 379 B.R. at
325. But, in view of the relief available to Tidwell and
Sterling-Ahlla under section 523(a)(3)(B), which the
court viewed as a more appropriate vehicle for relief, the
court found it unnecessary to entertain the possibility of
revoking Smith’s discharge. Id. Given that the plaintiffs’
claims against Smith had not yet been liquidated, the
court elected to postpone decision as to the discharge-
ability of the claims until such time as judgments were
entered in the state-court actions. Id. at 330. If Tidwell
and Sterling-Ahlla were successful in their state-court
proceedings against Smith, they could return to the
bankruptcy court to seek judgments of nondischarge-
ability. Id. at 330-31.
Smith appealed to the district court, which affirmed the
bankruptcy court’s decision. 2008 WL 4067306. The court
found no fault with the bankruptcy court’s determination
that Smith had committed fraud by intentionally
omitting Tidwell and Sterling-Ahlla from Schedule F.
Smith’s debt to the plaintiffs was potentially nondis-
chargeable, and given that his malpractice insurer
might not cover any judgment entered in favor of the
plaintiffs, the court agreed that it was a permissible
inference that Smith had intentionally failed to schedule
their claims. Id., at *2. “Since the evidence disclosed that
16 No. 08-3358
Smith had lost his job, undoubtedly as a result of the
alleged intentional tort, the reason for filing the bank-
ruptcy petition must have been, at least in part, to avoid
personal liability to [Tidwell and Sterling-Ahlla].” Id.
Alternatively, even assuming that the finding of fraud
might be clearly erroneous, the court found “compelling”
the bankruptcy court’s additional finding that the plain-
tiffs, although they did learn of the bankruptcy prior to
the discharge, did not receive the timely and sufficient
notice to which due process entitled them. Id., at *3. Not
only did Tidwell and Sterling-Ahlla not receive notice
of Smith’s petition until almost three months after he
filed it, but the motion informing them of Smith’s petition
did not include any information regarding the date
and result of the creditors’ meeting. Therefore, Tidwell
and Sterling-Ahlla could not calculate the bar date for
objecting to discharge or dischargeability. Id., at *3. The
court noted that a central consideration in evaluating
the reasonableness of the notice given to a creditor in a
bankruptcy proceeding is whether the notice left the
creditor without “sufficient time to take meaningful
action,” such that the creditor was actually prejudiced. Id.
(citing Hartigan v. Peters, 871 F.2d 1336, 1340 (7th Cir.
1989)). Here, the timing of the notice prejudiced the
creditors because it was given only two days before
Christmas, a normally quiet period for attorneys. Id.
Also, given that Robinson is not a bankruptcy attorney,
and thus was not knowledgeable about the procedures
and practices of bankruptcy proceedings, the belated
notice he received of the bankruptcy did not give him
sufficient time to take meaningful action. Id. The
No. 08-3358 17
district court noted finally that Smith was not without
recourse, because he still would have the opportunity
to defend the two state-court cases, and even if he lost
either or both, he would also have the right to object to
making the debts nondischargeable in the bankruptcy
court. Id.
II.
We have jurisdiction to review the district court’s
affirmance of the bankruptcy court, provided that the
bankruptcy court’s order is appropriately characterized
as a “final” decision. 28 U.S.C. § 158(d)(1); see Zedan v.
Habash, 529 F.3d 398, 402 (7th Cir. 2008) (citing In re
Salem, 465 F.3d 767, 771 (7th Cir. 2006)). Finality in the
context of bankruptcy jurisprudence is “ ‘considerably
more flexible than in an ordinary civil appeal taken
under 28 U.S.C. § 1291.’ ” Id. at 402 (quoting In re Gould,
977 F.2d 1038, 1040-41 & n.2 (7th Cir. 1992)). An order of
the bankruptcy court may be considered final, and thus
immediately appealable, when it definitively resolves a
discrete dispute within the larger case. In re Comdisco, Inc.,
538 F.3d 647, 651 (7th Cir. 2008) (quoting In re Saco Local
Dev. Corp., 711 F.2d 441, 444 (1st Cir. 1983) (Breyer, J.)); see
also Chiplease, Inc. v. Steinberg (In re Resource Tech. Corp.),
528 F.3d 467, 474 (7th Cir.), cert. denied, 129 S. Ct. 636 (2008).
The order at issue here arose from a stand-alone, post-
discharge proceeding commenced by Tidwell and Sterling-
Ahlla which sought, among other relief, modification of
the discharge injunction to permit their lawsuits against
Smith in state court to proceed. See Hendrix v. Page (In re
18 No. 08-3358
Hendrix), 986 F.2d 195, 197 (7th Cir. 1993). The bankruptcy
court’s decision to grant that request ends this stand-alone
proceeding for now. The court did not reach the
dischargeability of the claims that Tidwell and Sterling-
Ahlla have filed against Smith; resolution of that
issue has been postponed pending the outcome of the
litigation in state court. That may take years; and if
neither of the plaintiffs prevails in her lawsuit against
Smith, then there will be no further action for the bank-
ruptcy court to take. In the meantime, Smith must
defend himself in the lawsuits (although his insurer
apparently will supply that defense) with the prospect of
being held liable to Tidwell and Sterling-Ahlla (and
possibly with no insurance coverage) hanging over his
head. To that extent, the district court’s decision to
allow the state-court suits to go forward has already
deprived him of the fresh start that the discharge
order otherwise gave him. The bankruptcy court’s order
was therefore final for purposes of section 158(d)(1) and
we have jurisdiction to review the district court’s
decision to affirm that order. See Staffer v. Predovich (In re
Staffer), 306 F.3d 967, 970-71 (9th Cir. 2002) (deeming final
and appealable denial of motion to reopen bankruptcy
for purpose of filing of adversary complaint to determine
dischargeability of unscheduled debt); Hendrix, 986 F.2d
at 197 (bankruptcy court’s order granting creditors’
motion to modify discharge to permit them to reopen state-
court personal-injury lawsuit for purpose of pro-
ceeding against debtor’s insurance carrier was final,
appealable order); In re Barnes, 969 F.2d 526, 527-28 (7th
Cir. 1992) (order granting debtor’s motion to reopen
No. 08-3358 19
bankruptcy and declare unscheduled debt discharged
was final and appealable).
Because our review in a bankruptcy appeal is plenary,
we apply the same standards that the district court did
in reviewing the bankruptcy court’s decision. Wiese v.
Cmty. Bank of Cent. Wis. (In re Wiese), 552 F.3d 584, 588 (7th
Cir. 2009) (citing Corp. Assets, Inc. v. Paloian, 368 F.3d 761,
767 (7th Cir. 2004)); see also Fed. R. Bankr. P. 8013. We
examine the bankruptcy court’s determinations of law
de novo and its findings of fact for clear error. Wiese,
552 F.3d at 588 (citing In re ABC-Naco, Inc., 483 F.3d
470, 472 (7th Cir. 2007)); Rule 8013. “A finding is ‘clearly
erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395, 68 S. Ct. 525, 542 (1948).
Smith’s initial challenge is to the bankruptcy court’s
factual determination that his failure to schedule Tidwell
and Sterling-Ahlla’s lawsuits was fraudulent, but we
need not decide whether or not that finding was clearly
erroneous. Fraud is a prerequisite to revocation of the
debtor’s discharge pursuant to section 727(d)(1). E.g.,
Citibank, N.A. v. Emery, supra, 132 F.3d at 895. Revocation
of Smith’s discharge was one of the forms of relief that
Tidwell and Sterling-Ahlla sought in their adversary
complaints. But the bankruptcy court deemed that
harsh remedy—which as we have noted would have
reinstated all of Smith’s debts, not just his debts to Tidwell
and Sterling-Ahlla, see Wood v. Cochard, supra, 177 B.R. at
20 No. 08-3358
642—inappropriate in view of the relief available to
the plaintiffs under section 523; the court therefore dis-
missed the portions of the adversary complaints seeking
revocation. That aspect of the bankruptcy court’s decision
has not been challenged in this appeal. All that need
be shown to establish a right to relief under section
523(a)(3)(B) is that the debt in question was unsched-
uled and the creditor did not have notice or actual knowl-
edge of the bankruptcy in time to file a claim and a
request for a determination that the debt was nondis-
chargeable. See Judd v. Wolfe (In re Wolfe), 78 F.3d 110, 115-
16 (3d Cir. 1996); Beezley v. Calif. Land Title Co. (In re
Beezley), 994 F.2d 1433, 1437 (9th Cir. 1993) (O’Scannlain, J.,
concurring); Byrd v. Alton (In re Alton), 837 F.2d 457,
460 (11th Cir. 1988) (per curiam); Neeley v. Murchison, 815
F.2d 345, 347 (5th Cir. 1987). Whether or not the debtor’s
failure to schedule the debt was deliberate is irrelevant.
Alton, 837 F.2d at 459 (creditor holding nondischargeable
claim who received actual notice of pending bankruptcy
in time to seek declaration of nondischargeability prior to
bar date was precluded from seeking relief after debtor’s
discharge, notwithstanding possibility that debtor may
have deliberately failed to list creditor: “Despite the
misleading actions, inadvertent or intentional, of debtor
Alton, the time specifications set out in the Bankruptcy
Code are sufficiently clear to have placed an obligation
on creditor Byrd to follow the case and to take the
timely action necessary to pursue his claim. We leave it
to the Bankruptcy Court to decide whether debtor
Alton’s actions, if in bad faith, can and should affect
confirmation of his reorganization plan.”); Stucker v.
No. 08-3358 21
Cardinal Bldg. Materials, Inc. (In re Stucker), 153 B.R. 219, 222
(Bankr. N.D. Ill. 1993) (“there is nothing in the text of
section 523(a)(3)(A) or (B) which references a debtor’s
state of mind with regard to the omission in scheduling a
creditor’s claim”); see also Mendiola, supra, 99 B.R. at 869-
70).4 Thus, as the district court recognized, the bank
4
As a number of courts, including our own, have indicated, the
debtor’s mental state in omitting a known creditor may be
relevant to the question of whether an unscheduled debt that
was otherwise dischargeable under 523(a)(3)(A) was, in fact,
discharged. See Stark v. St. Mary’s Hosp. (In re Stark), 717 F.2d
322, 324 (7th Cir. 1983) (per curiam) (allowing debtor in no-asset
case to reopen bankruptcy to add omitted creditor holding
otherwise dischargeable debt “where there is no evidence
of fraud or intentional design”); see also Colonial Sur. Co. v.
Weizman, 564 F.3d 526, 532 (1st Cir. 2009) (endorsing Stark’s
approach); Stone v. Caplan (In re Stone), 10 F.3d 285, 291 (5th Cir.
1994) (collecting cases for proposition that “a court should not
discharge a debt under section 523(a)(3)[(A)] if the debtor’s
failure to schedule that debt was due to intentional design,
fraud, or improper motive”). But see Lauren A. Helbling &
Christopher M. Klein, The Emerging Harmless Innocent
Omission Defense to Nondischargeability Under Bankruptcy Code
§ 523(a)(3)(A): Making Sense of the Confusion Over Reopening
Cases and Amending Schedules to Add Omitted Debts, 69 Am.
Bankr. L. J. 33 (1995) (criticizing analysis of Stark and similar
cases which have considered debtor’s mental state in omitting
debt as relevant to whether bankruptcy case should be
reopened to permit amendment of schedules in order to add
debts that were omitted innocently and proposing instead
recognition of equitable, harmless innocent omission defense to
(continued...)
22 No. 08-3358
ruptcy court’s additional finding that Tidwell and Sterling-
Ahlla lacked timely notice of Smith’s bankruptcy is by
itself sufficient to sustain the court’s decision to allow
their state-court suits to go forward. 2008 WL 4067306,
at *3.
Smith also argues that despite his failure to include them
in his Schedule F, Tidwell and Sterling-Ahlla were on
notice of his 2005 bankruptcy petition and thus were
obliged to seek relief from the bankruptcy court before
he was discharged. He relies principally on the motion
to transfer Tidwell and Sterling-Ahlla’s lawsuits to the
state court’s bankruptcy calendar that was served on
their attorney by fax on December 23, 2005. Smith asserts
that the motion made the plaintiffs aware of the pending
bankruptcy proceeding in time enough for them to
object to the discharge of their claims before the bar date.
He secondarily contends that because Tidwell and Sterling-
Ahlla were previously identified (through their attorney)
as unsecured creditors on Schedule F of his 2004 petition,
they should somehow have been aware of his 2005 petition.
The adequacy of the notice that Tidwell and Sterling-
Ahlla received presents a mixed question of law and fact,
in that it calls for the application of legal standards to the
4
(...continued)
§ 523(a)(3)(A) nondischargeability actions). But, as stated
above, the debtor’s state of mind is not relevant to whether
an unscheduled debt that was otherwise nondischargeable
under section 523(a)(2), (4), or (6) was nonetheless dis-
charged pursuant to section 523(a)(3)(B).
No. 08-3358 23
unique facts of this case. See Thomas v. Gen. Motors Accep-
tance Corp., 288 F.3d 305, 307 (7th Cir. 2002). A lower
court’s answer to such a question is normally reviewed
for clear error, although de novo review is required as
to certain mixed findings, usually those having a con-
stitutional dimension. Id. The constitutional mandate of
due process does come into play here. Still, our decision
in United States v. Kirtley, 5 F.3d 1110, 1111-12 (7th Cir.
1993), which considered whether the notice given to a
defendant of the violations that led to revocation of his
probation complied with due process as well as the
relevant rule of criminal procedure, points toward
review for clear error. However, other decisions con-
sidering the sufficiency of notice in various contexts,
emanating from this circuit and others, have engaged in
de novo review. E.g., Brawders v. County of Ventura (In re
Brawders), 503 F.3d 856, 866 (9th Cir. 2007) (adequacy of
notice regarding proposed modification of creditors’
rights in Chapter 13 bankruptcy plan); Peralta-Cabrera v.
Gonzales, 501 F.3d 837, 843 (7th Cir. 2007) (adequacy of
notice of deportation hearing); DeJulius v. New England
Health Care Employees Pension Fund, 429 F.3d 935, 942 (10th
Cir. 2005) (adequacy of notice procedures in securities
fraud class action); Lobzun v. United States, 422 F.3d 503,
507 (7th Cir. 2005) (adequacy of forfeiture notice proce-
dures). We need not explore the subject further; our
decision would be the same regardless of what degree
of appellate scrutiny we applied.
We agree with both the bankruptcy and district courts
that the motion to transfer did not supply Tidwell and
Sterling-Ahlla with adequate notice of Smith’s second
24 No. 08-3358
bankruptcy, such that they were required to act before
Smith was discharged and the bankruptcy proceeding
was closed. Although it is undisputed that the plain-
tiffs’ attorney did become aware of the pending bank-
ruptcy as a result of that motion, and that he acquired that
knowledge while there was still some time left in the
bankruptcy proceeding for Tidwell and Sterling-Ahlla
to file proofs of claim and to seek a declaration that
their claims were nondischargeable, this alone does not
establish that the notice was adequate. “An elementary
and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action
and afford them an opportunity to present their objec-
tions.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314, 70 S. Ct. 652, 657 (1950). The notice must not
only reasonably convey the required information, but it
must also “afford a reasonable time for those interested
to make their appearance.” Id. at 314, 70 S. Ct. at 657. A key
function of the notice provided to a creditor in a bank-
ruptcy proceeding is to give the creditor the oppor-
tunity to file a proof of claim and, where the debt is
potentially nondischargeable, to request a determination
of nondischargeability. Chanute Prod. Credit Ass’n v.
Schicke (In re Schicke), 290 B.R. 792, 800 (10th Cir. B.A.P.
2003), aff’d without published op., 97 Fed. Appx. 249 (10th
Cir. 2004); In re O’Shaughnessy, 252 B.R. 722, 732 (Bankr.
N.D. Ill. 2000) (quoting In re Marino, 195 B.R. 886, 894
(Bankr. N.D. Ill. 1996)); see generally Zurich Am. Ins. Co. v.
Tessler (In re J.A. Jones, Inc.), 492 F.3d 242, 249 (4th Cir.
No. 08-3358 25
2007); United States v. Hairopoulos (In re Hairopoulos), 118
F.3d 1240, 1244-45 (8th Cir. 1997); Chemetron Corp. v. Jones,
72 F.3d 341, 348 (3d Cir. 1995).
The motion to transfer did not serve these interests.
Robinson’s office did not receive a copy of the motion
to transfer until December 23, 2005, almost ninety days
after Smith filed his bankruptcy petition and well over a
month after the creditors’ meeting on November 8, 2005.
The motion revealed little more than the pendency of
Smith’s bankruptcy; it said nothing as to when the bank-
ruptcy was filed, whether or when a creditors’ meeting
had taken place, or when objections to discharge or to
the dischargeability of any debt were due. Thus, Robinson
had no way of knowing without further investigation
how much time remained for Tidwell and Sterling-Ahlla
to preserve their rights as creditors. Because the notice
was given only sixteen or seventeen days before the
deadline for dischargeability complaints (see n.3, supra),
there was little time left at that point for Robinson to
investigate the bankruptcy, ascertain the relevant dead-
lines, and take appropriate action before the bar date
in January. Moreover, Robinson is not a bankruptcy
specialist; he is a personal injury attorney. Even if he
had seen the notice on December 23, 2005 (rather than on
January 4, 2006 when he returned to his office), it is still
unlikely he would have had sufficient time to discuss
the appropriate course of action with an attorney who
specializes in bankruptcy law, consult with his clients,
and file the appropriate documents before the deadline
for objecting to the dischargeability of his clients’ claims
expired. This is particularly so given that the motion
26 No. 08-3358
was served during the end-of-year period when many
people are occupied with holidays, vacations, and family
events and little business is transacted. On these facts,
the minimal notice belatedly supplied by way of the
motion to transfer did not give the plaintiffs a rea-
sonable opportunity to take appropriate action before the
deadline for objecting to dischargeability passed and
before Smith was discharged. See Mfrs. Hanover v. Dewalt
(In re Dewalt), 961 F.2d 848, 851 (9th Cir. 1992) (in most
cases, at least thirty days’ notice to creditor is necessary
and sufficient to satisfy § 523(a)(3)(B); notice supplied
seven days prior to bar date is insufficient); Sophir Co. v.
Heiney (In re Heiney), 194 B.R. 898, 902-03 (D. Colo. 1996)
(notice received eighteen days prior to bar date insuf-
ficient); In re Walker, 149 B.R. 511, 515-17 (Bankr. N.D. Ill.
1992) (knowledge of bankruptcy acquired by unrepre-
sented creditor twenty days prior to bar date insufficient);
cf. Muse v. Muse (In re Muse), 289 B.R. 619, 623-24 (Bankr.
W.D. Pa. 2003) (notice provided seventy-seven days
prior to deadline for nondischargeability complaint
sufficient); Herman v. Bateman (In re Bateman), 254 B.R. 866,
874-75 (Bankr. D. Md. 2000) (notice received twenty-six
days prior to bar date sufficient); Marino, 195 B.R. at 895-
97 (two months’ notice was adequate); but see also Grossie
v. Sam (In re Sam), 894 F.2d 778, 781-82 (5th Cir. 1990)
(eighteen days’ notice sufficient).
The notion that Sterling-Ahlla and Tidwell were on
inquiry notice that Smith might have filed a bankruptcy
petition in 2005 because their attorney had been
scheduled and notified of his 2004 petition is untenable.
No. 08-3358 27
The 2004 petition had been dismissed for “substantial
abuse” of the Chapter 7 process in light of Smith’s
income and expenses at that time. It was not inevitable
that Smith would file a second petition, and of course the
plaintiffs had no way of divining when he might do so. See
Mountain West Fed. Credit Union v. Stradinger (In re
Stradinger), Bankr. No. 05-65113-7, 2007 WL 2319812, at *7
(Bankr. D. Mont. Aug. 9, 2007) (knowledge that debtor
was contemplating bankruptcy does not amount to
notice that she in fact filed bankruptcy petition at later
date) (coll. cases). In any case, Tidwell and Sterling-Ahlla
were entitled to prompt notice that Smith had filed a
second bankruptcy petition—the same notice that most
of his other creditors did receive—and it is undisputed
that they were not given this notice. The first and only
notice they received was the motion to transfer, which as
we have discussed was too little and too late to enable
them to take appropriate action before Smith was dis-
charged.
Because Tidwell and Sterling-Ahlla were not given
timely and sufficient notice of Smith’s bankruptcy for
them to file complaints to determine the nondis-
chargeability of their claims in compliance with the
schedule set by the bankruptcy court, they remained free
to file such complaints at any time. Fed. R. Banker. P.
4007(b); Staffer v. Predovich, supra, 306 F.3d at 971-72; see also
Walker, 149 B.R. at 516-17; Mendiola, 99 B.R. at 868 n.6; In
re Eliscu, 85 B.R. 480, 481 (Bankr. N.D. Ill. 1988). Laches
might be a defense to a complaint filed long after an
unscheduled creditor learns of the debtor’s bankruptcy. See
28 No. 08-3358
Staffer, 306 F.3d at 973. But because no such defense has
been raised here, we need not explore that possibility.
III.
Under these circumstances, the bankruptcy court appro-
priately exercised its discretion to allow the state-court
cases against Smith to proceed. It committed no error in
finding that Tidwell and Sterling-Ahlla received insuffi-
cient notice of Smith’s petition to have compelled them
to take action to preserve their rights before the bar date
and before Smith was discharged; their post-discharge
adversary complaints and requests for leave to proceed
with the state-court litigation were therefore timely.
A FFIRMED.
9-23-09