Buckeye Gas Products Co. v. Rhodes (In Re Rhodes)

PER CURIAM:

I

Appellant Buckeye Gas Products Company (“Buckeye”) appeals from the Bankruptcy Court’s dismissal of its complaint to determine the dischargeability of a debt. Buckeye’s complaint was filed one day after the expiration of the deadline for filing challenges to discharge. We AFFIRM the decision of the Bankruptcy Court.

II

FACTS

On January 22, 1986, Donald and Sheryl Rhodes, dba Don’s Mobile Service (“Debtors”), filed a bankruptcy petition under Chapter 7 of the Bankruptcy Code (“Code”). The Debtors’ schedule of debts listed a judgment debt owed to Buckeye for $27,000.

On January 27, 1986, the clerk of the court mailed an Order and Notice for Hearing, which informed Buckeye that April 28, 1986 was the last day to file a complaint under Section 523(c) to determine exceptions to discharge under paragraph (2), (4) or (6) of Section 523(a).1 Buckeye does not dispute timely receipt of this notice.

The attorneys for Buckeye drafted a complaint in which the first cause of action claimed that the debt owed to Buckeye qualified as an exception to discharge under Section 523(a)(2) of the Code. The complaint’s second cause of action challenged the discharge of the Debtors under Section 727.

On April 28, 1986, Buckeye’s attorneys sent the complaint out with a messenger service to be filed with the Bankruptcy Court. The attorneys did not specifically request that the messenger service file the complaint that day but merely assumed it would do so. The complaint was not filed until Tuesday, April 29,1986, one day after the deadline. The Bankruptcy Court, on motion by the Debtors, dismissed as untimely Buckeye’s complaint as to all causes of action.

Ill

DISCUSSION

Section 523(c) of the Code and Bankruptcy Rule 4007(c) require any creditor who objects to the dischargeability of a particular debt under Section 523(a)(2), (4) or (6) to file an adversary proceeding. See In re Aldrich, 34 B.R. 776, 780 (9th Cir. BAP 1983). The plaintiff must either file his complaint within the time set or must move for an enlargement of time before the deadline expires. Bankruptcy Rule 4007(c). The Bankruptcy Court has no discretion to enlarge the time for filing a complaint to determine dischargeability if the request is made after the deadline for filing the complaint. In re Rhodes, 61 B.R. 626, 629 (9th Cir. BAP 1986).

*208Buckeye argues that the Bankruptcy Court has the power to grant an extension of time upon a showing of excusable neglect.2 In re Magouirk, 693 F.2d 948, 950 (9th Cir.1982); See Bankruptcy Rule 9006(b)(1). However, Buckeye’s heavy reliance on In re Magouirk, supra, is misplaced since that case was decided under the former Bankruptcy Rules. The current rules do not grant the court discretion to enlarge the time for filing complaints upon a showing of excusable neglect. In re Rhodes, supra, 61 B.R. at 629-30. Bankruptcy Rule 9006(b)(3) expressly provides that the bankruptcy court “may enlarge the time for taking action under Rule[s] ... 4007(c) ... only to the extent and under the conditions stated in those rules.” Rule 4007(c) does not allow enlargements after the deadline has passed.

In the present case, Buckeye was provided a three month notice of the deadline for filing complaints to determine the dischargeability of debts under Section 523. This gave Buckeye ample time to prepare the complaint and file it in a timely manner. If more time was needed, Buckeye should have moved for an enlargement of time before the bar date had passed under Rule 4007(c). Buckeye never timely moved for an enlargement and did not file its complaint until the day after the deadline. Under these circumstances, the Bankruptcy Court had no choice but to dismiss the complaint as untimely.

AFFIRMED.

. Subparagraphs (2), (4), and (6) of Section 523(a) except from discharge debts based on fraud (Section 523(a)(2)); misconduct of a fiduciary or embezzlement or larceny (Section 523(a)(4)); or willful and malicious injury (Section 523(a)(6)).

. Buckeye does not raise the dismissal of its second cause of action, which challenges the Debtors’ discharge under Section 727, as an issue in its brief. Therefore, it is deemed to have abandoned this claim. Kates v. Crocker Nat'l Bank, 776 F.2d 1396, 1397 n. 1 (9th Cir. 1985).