Opinion
Case No. 97-12051-SSM, Adversary Proceeding No. 97-1220
September 11, 1997
Daniel M. Zavadil, Arlington, VA, for the defendant
MEMORANDUM OPINION AND ORDER
This matter is before the court on the debtor's "motion to strike adversary proceeding" and for an award of costs and attorneys fees. The motion is directed to the plaintiff's letter to the clerk dated June 19, 1997, and filed June 23, 1997, which the clerk correctly construed as an inartfully-drafted objection to discharge and request for determination of dischargeability. A hearing was held in open court on September 9, 1997. The plaintiff, who is representing himself, was present in person. The debtor was present by her attorney.
Facts
Tamara K. Brewer ("the debtor") filed a voluntary petition under chapter 7 of the Bankruptcy Code in this court on March 21, 1997. The meeting of creditors under § 341 of the Bankruptcy Code was scheduled for April 23, 1997, and the last date for filing objections to the debtor's discharge and complaints to determine the dischargeability of debts alleged to be excepted from discharge under §§ 523(a)(2), (a)(4), (a)(6), and (a)(15), Bankruptcy Code, was June 23, 1997. On that day, Joseph W. Caramanica, the debtor's former husband, filed with the clerk an 8-page letter, addressed to the clerk, asking that the information in the letter "be considered when the United States Bankruptcy Court evaluates Ms. Brewer's request to have her debt discharged." The letter, to which was attached approximately 50 pages of exhibits, set forth two distinct requests: that the debtor be denied a discharge because of her pre-filing conduct and because of various inaccuracies in her schedules; and that a debt of $300 owed to him for one-half of the medical expenses for their son be held non-dischargeable under § 523(a)(5), Bankruptcy Code, as being in the nature of child support.
Because the letter was unaccompanied by an adversary proceeding cover sheet or the required filing fee for an adversary proceeding, the clerk would have been justified in refusing to accept the letter for filing. Hartford Accident Indemnity Co. v. Mulvaney (In re Mulvaney), 179 B.R. 806 (Bankr. E.D. Va. 1995). Evidently, however, the letter was not closely examined until some time after it had been filed, at which point the clerk properly determined that it should be treated as commencing an adversary proceeding objecting to the debtor's discharge and seeking a determination of dischargeability. The clerk opened an adversary proceeding file, docketed the letter as a complaint, and issued a "Notice of Deficient Filing" under Local Bankruptcy Rule 5005-1 advising Mr. Caramanica that "the papers submitted . . . for filing contain certain deficiencies" and that he needed to submit a properly-completed adversary proceeding cover sheet and the required $150.00 filing fee within ten days and that failure to do so "may result in the pleading being stricken from the record or, if a . . . complaint is deficient, the . . . adversary proceeding being dismissed." Mr. Caramanica mailed a completed cover sheet and $150.00 money order to the clerk's office. It was received on or before July 7, 1997, because on that date a deputy clerk "apparently unaware that an adversary file had been opened and that the letter-complaint was in the file" returned the cover sheet and money order to Mr. Caramanica asking, "Where is the complaint?" and directing him to "Resubmit w/complaint." He promptly wrote back explaining that the complaint was already in the court file, at which point the clerk date-stamped the cover sheet July 11, 1997, and issued a receipt, also dated July 11, 1997, for the filing fee. The clerk then issued a summons and delivered it to Mr. Caramanica, who served it by first class mail on the debtor and the debtor's counsel. Mr. Caramanica did not, however, include with the summons a copy of the letter complaint or its voluminous exhibits. The debtor then filed the motion that is presently before the court.
The docket sheet reflects a filing date for the complaint of June 23, 1997.
The notice, which requires that the deficiency be cured "within ten (10) days of the date hereof," bears the date July 8, 1997. This appears from the docket entries, however, to have been a blunder: July 8, 1997 was apparently intended to be the deadline for compliance and appears from Mr. Caramanica's subsequent letter to the clerk of July 11, 1997, to have been so understood by him.
Conclusions of Law and Discussion
Under F.R.Bankr.P. 4004(a), in a chapter 7 liquidation case a complaint objecting to the debtor' discharge must be filed within 60 days following the first date set for the meeting of creditors. Similarly, under § 523(c), Bankruptcy Code, and F.R.Bankr.P. 4007(c), complaints to determine the dischargeability of debts alleged to be excepted from discharge under § 523(a)(2), (a)(4), (a)(6), and (a)(15), Bankruptcy Code, must also be filed within 60 days of the meeting of creditors. These time limits are strictly enforced and may be extended only if a motion for such extension is filed "before the time has expired." F.R.Bankr.P. 4007(c). Once the time has expired, it cannot be extended even for excusable neglect. F.R.Bankr.P. 9006(b)(3); Mann v. CCR Financial Planning, Ltd., 199 B.R. 347 (Bankr. E.D. Va. 1996) aff'd ___ B.R. ___, 1997 WL 523867 (E.D. Va., Aug. 21, 1997).
Debts alleged to be excepted from discharge under other subsections of § 523(a), however "including debts alleged to fall within the ambit of § 523(a)(5)" are not subject to this time limitation, nor to the exclusive jurisdiction of the Bankruptcy Court. That is, except for debts made nondischargeable by §§ 523(a)(2), (a)(4), (a)(6), and (a)(15), state courts have concurrent jurisdiction to determine dischargeability, and, if the parties choose to litigate the issue in the bankruptcy court, the complaint to determine dischargeability may be filed "at any time." F.R.Bankr.P. 4007(b).
Although the deadline is strictly enforced and not subject to enlargement on the basis of excusable neglect, the Fourth Circuit in dicta has sided with those courts that have held that the deadline is not jurisdictional. Farouki v. Emirates Bank Int'l, Ltd., 14 F.3d 244, 248 (4th Cir. 1994) (adopting Schunk v. Santos (In re Santas), 112 B.R. 1001 (Bankr. 9th Cir. 1990), which held that the Bankruptcy Rules" [do] not preclude the bankruptcy court from exercising its equitable powers in extraordinary cases."). Such circumstances, for example, include those where a notice from the court misleads creditors as to the bar date. Themy v. Yu (In re Themy), 6 F.3d 688 (10th Cir. 1993). Extension may also be allowed on the ground of equitable estoppel or waiver. Santos, 112 B.R. at 1007-08. There is no suggestion, however, that any of these limited exceptions would apply to extend the deadline in the present case.
In the present case Mr. Caramanica's letter was filed within the 60-day period specified in Rule 4004(a) for filing complaints objecting to the debtor's discharge. The filing was unquestionably deficient, since the issues Mr. Caramanica sought to raise require an adversary proceeding. Although, as noted above, the clerk had the discretion to refuse to accept the filing, the clerk instead filed and docketed the letter as an adversary complaint and issued a notice of filing deficiency under the provisions of Local Bankruptcy Rule 5005-1, which was adopted by this court to implement the command of F.R.Bankr.P. 5005 that the clerk "shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices." Under the local rule, the clerk mails a notice of filing deficiency. Unless the defect is cured or a request for hearing is filed within ten days, an order may be entered without further notice striking the pleading. In any event, within the ten day period, Mr. Caramanica complied with the notice by sending in a completed adversary proceeding cover sheet and the filing fee. That it was returned to him by a deputy clerk who was unaware that the pleading to which it related was already in the file is of no moment: litigants do not lose rights because the clerk has blundered. Upon being advised of what happened, the clerk promptly accepted the cover sheet and filing fee. The court concludes, therefore, that the objection to discharge is not subject to dismissal as having been filed out of time. Of course, as to Mr. Caramanica's request that the court determine the dischargeability of the $300 debt which he alleges is excepted from discharge under § 523(a)(5), the deadline is not even an issue, since, as noted above, a complaint seeking such a determination may be filed "at any time." F.R.Bankr.P. 4007(b).
F.R.Bankr.P. 7001 provides that a proceeding "to object to or revoke a discharge" or "to determine the dischargeability of a debt" is an adversary proceeding governed by Part VII of the Federal Rules of Bankruptcy Procedure.
There is, however, a remaining issue. The letter to the clerk is not in the proper form for a complaint and fails to comply with F.R.Bankr.P. 7010 (requiring that the caption conform to the Official Forms) and 7008 (requiring an allegation of jurisdiction and a statement of whether the proceeding is core or non-core). These are purely formal matters, and Mr. Caramanica's failure to comply with them does not prejudice the debtor. Nor, given the traditional latitude courts have given to pro se pleadings, do those deficiencies justify an order dismissing the complaint. However, F.R.Bankr.P. 7004(b) does expressly require service on the debtor and her counsel "of the summons and the complaint." Indeed, since issuance (not service) of the summons initiates the thirty-day period under F.R.Bankr.P. 7012(a) in which the defendant must file an answer or other allowed pleading, failure to serve the complaint along with the summons clearly prejudices the defendant and is a proper basis upon which to quash the service of process. Accordingly, although the court will not dismiss Mr. Caramanica's complaint, the court will enter an order quashing service of process as defective and requiring Mr. Caramanica to obtain an alias summons, which must be served within ten days of its issuance on both the debtor and her counsel, together with a complete copy of the June 19, 1997, letter and all attachments thereto.
ORDER
For the reasons stated above, it is
ORDERED:
1. The defendant's motion to strike the adversary proceeding, to the extent it seeks dismissal of the adversary proceeding, is DENIED. Treating the motion as a motion to quash service, the motion is GRANTED, and service of process on the defendant is quashed, without prejudice to the right of the plaintiff to obtain issuance of an alias summons, which must be properly served within ten days of issuance upon the debtor and her counsel, together with a complete copy of the June 19, 1997, letter and all attachments thereto and the scheduling order. This order does not constitute an extension of the 120-day period under F.R.Bankr.P. 7004 for service of the summons and complaint. The prayer for an award of attorneys fees is DENIED. Without the need for amendment, the court treats the letter of July 19, 1997, as including an allegation of jurisdiction under 28 U.S.C. § 1334 and 157(a) and an allegation that the proceeding is core.
2. The scheduling order previously entered is hereby vacated and the scheduled pretrial conference will be removed from the court's docket. The clerk will issue a new scheduling order when and if an alias summons is issued.
3. The clerk will mail a copy of this memorandum opinion and order to the plaintiff, to counsel for the defendant, and to the chapter 7 trustee.