Kostantyn Bugarenko

1 To the extent the Motion also asks the Court to appoint a new Chapter 7 Trustee, that
request is moot given my decision to deny the request to strike the discharge.
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
KONSTANTYN BUGARENKO, 	: 	Bankruptcy No. 06-14834DWS
:
Debtor. 	:
MEMORANDUM OPINION
BY: 	DIANE WEISS SIGMUND, Chief Bankruptcy Judge
Before the Court is the Motion to Strike Discharge and Reappoint Chapter 7 Trustee
(the “Motion”) filed by Thomas A. Biggins (“Biggins”). 	The motion primarily seeks to
undo the discharge order entered in this case on March 20, 2007 so that Biggins may file a
complaint objecting to the granting of a discharge to the Debtor.1 Upon consideration of the
Motion, as well as the objections thereto of the Debtor and the United States Trustee
(“UST”), and for the reasons that follow, the Motion is denied.
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2 I shall take judicial notice of the docket entries in this case. Fed.R.Evid. 201,
incorporated in these proceedings by Fed.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v.
United Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991); Levine v. Egidi, 1993 WL 69146,
at *2 (N.D.Ill. 1993); In re Paolino, 1991 WL 284107, at *12 n. 19 (Bankr. E.D. Pa. 1991); see
generally In re Indian Palms Associates, Ltd., 61 F.3d 197 (3d Cir. 1995).
3 Judicial notice of public filings in other courts is also appropriate under Federal Rule of
Evidence 201(b)(2). See Oran v. Stafford, 226 F.3d 275, 289 (3d Cir.2000). The judgment is
against Debtor and Bugarenko and Dynamo Heating & Cooling.
4 Though Debtor identifies Biggins as “Esquire,” Biggins represented to the Court that
he is not in fact an attorney.
5 The docket indicates that the claim was actually assigned to Robert A. Biggins, Inc.
(“Biggins Inc.”) on February 3, 2006. A subsequent assignment is indicated on the docket from
Biggins Inc to Biggins personally. That assignment indicates that Biggins is President of
Biggins Inc.
6 This arrangement is not disclosed on the assignments filed with the Municipal Court,
which simply indicate an assignment of the claim, with no consideration indicated.
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FACTUAL AND PROCEDURAL BACKGROUND
Debtor filed this Chapter 7 case on October 19, 2006.2 One of the unsecured debts
listed on Debtor’s 	Schedule F is a judgment against him in the Municipal Court of
Philadelphia 	in 	the 	amount 	of 	$4,674. 	See 	Shevchenko 	v. 	Bugarenko,
No. SC-03-08-26-2282, Phila. Mun. Ct. (Sept. 9, 2003).3 Schedule F identifies this claim as
belonging to Yuri Shevchenko, M.D., “c/o Thomas A. Biggins, Esq.” 4 The Municipal Court
docket indicates a default judgment entered in favor of Dr. Shevchenko, and an assignment
of that judgment to Biggins.5 Biggins, who has appeared in this Court pro se, asserts that he
is in the business of buying claims on a contingency basis, i.e he pays nothing for the claim
but shares with the assignor in any recovery he obtains.6
Biggins first came to the Court’s attention in December 2006, when he filed a Motion
to Extend Time for Filing Complaint Objecting to Dischargeability of a Debt (the “Extension
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Motion”). Biggins filed the Extension Motion pursuant to Fed. R. Bankr. P. 4007(c), which
provides that a complaint to determine the dischargeability of a debt under 11 U.S.C.
§ 523(c) must be filed no later than sixty days following the first date set for the meeting of
creditors unless a timely extension is sought. Biggins also filed several discovery motions
pursuant to Fed. R. Bankr. P. 2004, seeking documents from Debtor as well as documents
and depositions of third parties (the “Discovery Motions”).
On January 8, 2007, a hearing was held on both the Discovery Motions and the
Extension Motion. 	At the hearing, I raised my concerns as to the broad scope of the
discovery Biggins was seeking, particularly as to third parties. 	Rather than granting him
relief, I continued the hearing and instructed him to focus on the purpose of his discovery
requests. I granted the Extension Motion, providing Biggins “an extension of time to file a
complaint objecting to the dischargeability of a debt until February 21, 2007.” Doc. No. 32.
I also wanted Biggins to consult with the Chapter 7 Trustee (the “Trustee”), given certain
allegations Biggins made regarding the Debtor’s conduct in this case. The Chapter 7 Trustee
subsequently issued a Report of No Distribution on January 22.
The continued hearing on the Discovery Motions was held on February 20. Biggins
explained at the hearing that he was seeking the discovery in order to determine whether to
file a complaint under § 523 or § 727 of the Code. 	The Trustee reported that she was
satisfied that her investigation had revealed no assets available for distribution to creditors.
After a colloquy with Biggins, I granted the Discovery Motions in part, modifying the
proposed order and narrowing the scope of his discovery. 	It was agreed that any further
discovery disputes would be brought by a supplemental motion.
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The focus of the parties at the February 20 hearing was the scope of Biggins’
discovery requests. 	At no point did anyone raise the issue of what claim Biggins was
pursuing – indeed, he had not yet decided – or whether the applicable time limits to a
complaint had passed. It was only the Court that made the following observation:
I'll also extend, although you haven't mentioned it, but I'm assuming I
indicated to you that I would when we met the last time, I'll extend the time
that you may have for filing an adversary proceeding, but this round of
discovery is basically to enable you to decide whether you want to go forward
on an adversary case.
Transcript of February 20, 2007 Hearing (“Feb. 20 Tr.”) at 27. Notably, there was no motion
to extend pending before me. 	Nor did Biggins bring to the Court’s attention that the
previously granted extension would expire the following day, February 21.
On March 20, an order was entered discharging the Debtor (the “Discharge Order”).
Biggins filed further discovery motions, but did nothing to acknowledge the Debtor’s
discharge until the present Motion, filed on May 24, 2007. At the hearing on the Motion,
Biggins asserted that he was now ready to proceed with a complaint against the Debtor. 	I
ordered Biggins to brief the issue of whether the Discharge Order could in fact be stricken.
Furthermore, I instructed Biggins to attach to his memorandum a copy of the complaint he
wished to bring. 	Biggins initially failed to do so, but subsequently filed a proposed
complaint (the “Proffered Complaint”) that would seek to deny the Debtor a discharge for
failing to preserve records as required by 11 U.S.C. § 727(a)(3) and/or for knowingly and
fraudulently making a false oath or account as prohibited by § 727(a)(4)(A). (Doc. no. 89).
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7 The majority of Biggins’ memorandum is devoted to a discussion of the Court’s
discretion to reopen a case. Debtor correctly notes that this is not an issue. While the Court did
enter a contemporaneous order with the Discharge Order, accepting the Trustee’s report and
ordering the case to be closed, the case has not yet been closed.
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DISCUSSION
Biggins asks the Court to strike the Discharge Order on the theory that it was entered
in error, contending that the Court has the inherent power to correct its own mistakes.7
Biggins relies upon hearsay statements of unnamed employees of the Bankruptcy Clerk’s
office, none of which were admitted into evidence at the hearing, to support his theory that
the Discharge Order was entered prematurely and contrary to the internal operating
procedures of the Clerk’s Office.
I agree with Biggins as to the Court’s ability to correct its own mistakes. 	“It is
axiomatic that courts have the power and the duty to correct judgments which contain clerical
errors or judgments which have issued due to inadvertence or mistake.” American Trucking
Ass'ns v. Frisco Transp. Co., 358 U.S. 133, 145, 79 S.Ct. 170, 177 (1958). 	However, I
disagree that the Discharge Order was entered as a result of any clerical error, inadvertence,
or mistake. 	Biggins’ reliance upon procedures of the Clerk’s Office is misplaced. 	The
proper time for entering a discharge order is not determined by the Clerk of the Court, but
rather is governed by Federal Rule of Bankruptcy Procedure 4004, which states in relevant
part:
(c) Grant of discharge
(1) In a chapter 7 case, on expiration of the time fixed for filing a complaint
objecting to discharge and the time fixed for filing a motion to dismiss the case
under Rule 1017(e), the court shall forthwith grant the discharge unless:
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8 There are other exceptions in Rule 4004(c) that are not relevant here.
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(B) a complaint objecting to the discharge has been filed,
. . .
(E) a motion to extend the time for filing a complaint objecting
to the discharge is pending, . . .
Fed. R. Bankr. P. 4004(c). 8 Because the docket indicated no pending complaint objecting
to discharge or any motion to extend the time to file such a complaint, the Clerk’s Office
correctly issued the Discharge Order. While Biggins asserts that this was done prematurely
with respect to the Clerk’s internal operating procedures, he failed to presented any evidence
of this at the hearing. Moreover, the only relevant inquiry is whether the Discharge Order
was entered in compliance with Rule 4004(c). It was.
Biggins also relying upon my above-quoted comment at the February 20 hearing, that
I would extend the time for him to file a complaint, contends my statement constitutes a
ruling on an oral motion. I have reviewed the transcript of the February 20 hearing, and there
is nothing that can be construed as an oral motion by Biggins. That is why I prefaced my
statement regarding an extension with the observation “although you haven't mentioned it.”
Feb. 20 Tr. at 27. 	Implicit in my statement was the indisputable reality that Biggins needed
to bring an appropriate motion. Indeed, the applicable rule states that the Court may extend
the time to bring a complaint objecting to a debtor’s discharge only: “[o]n motion of any
party in interest, after hearing on notice” and that such motion “shall be filed before the time
has expired.” Fed. R. Bankr. P. 4004(b). Biggins made no properly noticed motion for the
Court to act upon.
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9 Section 727(d) requires the Court, upon request of the trustee, a creditor, or the United
States trustee, and after notice and a hearing, to revoke a discharge granted under § 727(a) if:
(1) the discharge was obtained through the fraud of the debtor, and the requesting
party didn’t know of such fraud until after the granting of such discharge;
(2) the debtor acquired property that is property of the estate, or became entitled
to acquire property that would be property of the estate, and knowingly and
fraudulently failed to report the acquisition of or entitlement to such property, or
to deliver or surrender such property to the trustee; or
(3) the debtor committed an act specified in subsection (a)(6) of this section; or
(4) the debtor made misstatements or otherwise failed to cooperate with an audit
conducted pursuant to 28 U.S.C. § 586(f).
10 The Proffered Complaint does allege that Debtor “fraudulently” indicated on his
petition that the nature of his debts were primarily consumer when in fact there were also
business debts. However, it asserts this as a basis for denying the granting of a discharge under
(continued...)
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Biggins also invokes the equitable powers granted to the Court under § 105 of the
Code, which states:
(a) The court may issue any order, process, or judgment that is necessary or
appropriate to carry out the provisions of this title. No provision of this title
providing for the raising of an issue by a party in interest shall be construed to
preclude the court from, sua sponte, taking any action or making any
determination necessary or appropriate to enforce or implement court orders
or rules, or to prevent an abuse of process.
Id. 	However, it is axiomatic that “‘any grant of authority given to the bankruptcy courts
under § 105 must be exercised within the confines of the bankruptcy code.’” In re Hamer,
2000 WL 1230496, *6 (E.D. Pa. August 18, 2000)(quoting Gouveia v. Tazbir, 37 F.3d 295,
300 (7th Cir.1994)). While § 727(d) provides for the revocation of a discharge order on very
limited grounds,9 Biggins made clear at the hearing on the Motion that he does not wish to
file a complaint under this provision.10 Instead he asks the Court to otherwise undo the
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10 (...continued)
§ 727(a)(4)(a) and not for revoking a discharge for fraud under § 727(d)(1).
11 The Disch court also found that Federal Rule of Civil Procedure 60(b), incorporated
into bankruptcy cases by Federal Rule of Bankruptcy Procedure 9024, could provide a basis for
revoking the discharge. While Biggins has not raised this rule, I note that the Third Circuit
Court of Appeals has rejected the use of a procedureal rule like Rule 60(b) to abridge, enlarge, or
modify substantive rights provided under the Bankruptcy Code. In re Fesq, 153 F.3d 113, 116-
17 (3d Cir. 1998). On this issue, Fesq is binding on this Court.
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properly entered Discharge Order under § 105 so that he may have a second chance to correct
his failure to file a timely § 727(a) complaint. This I simply cannot do. Section 105(a) by
its terms indicates it is a power to “carry out the provisions of this title,” not to override those
provisions. Biggin’s “broad interpretation of § 105(a) would make the list of grounds for
revoking a discharge found in § 727(d) meaningless; anything not in the list could come in
through the back door of § 105(a).” Disch v. Rasmussen, 417 F.3d 769, 778 (7th Cir. 2005). 11
Finally, even if I had the equitable authority to grant Biggins’ request, I would decline
to exercise it because the facts before me demonstrate that granting the requested relief
would serve no purpose. 	The Motion is premised upon Biggins’ misunderstanding that
striking the Discharge Order would provide him with the opportunity to file his Proffered
Complaint, which is based upon §727(a). The original Extension Motion that Biggins filed
in December sought only an extension of time to object to the dischargeability of a debt
pursuant to § 523 and Rule 4007(c), i.e the dischargeability of the debt assigned to him.
Nothing in that motion sought an extension of time to pursue a complaint objecting to the
granting of a discharge under § 727. That right therefore expired on January 20, a full month
before the February 20 hearing. 	Fed. R. Bankr. P. 4004(a). 	Biggins failed to seek an
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12 Rule 9006(b)(3) expressly limits the discretion of a court to enlarge the time for filing
an action under Rule 4004(a) “to the extent and under the conditions stated” in that rule.
13 In this respect, my statement at the February 20 hearing does not help Biggins
overcome his failing. While I might have been able to consider a further extension of his prior
Extension Motion that was based upon §523 and Rule 4007(c), I lacked authority to grant
Biggins an extension to file the Proffered Complaint, which is based upon § 727.
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extension before that expiration as required and the Court is not authorized to extend that
time beyond those limitations. Fed. R. Bankr. P. 4004(b), 9006(b)(3).12 See also In re
MacKay, 324 B.R. 566, 569 (Bankr. M.D. Pa.,2005)(Absent timely request for extension of
time to file complaint objecting to debtor's discharge, bankruptcy court has neither discretion
nor authority to enlarge time to file such a complaint); In re DiLoreto, 277 B.R. 607, 610
(Bankr. E.D. Pa.,2000) (Rule 4004(a)’s deadline to object to a debtor's discharge, as with
other bankruptcy deadlines, is strictly enforced).13
Debtor is represented by competent bankruptcy counsel who understands the
distinction between 	§§ 523 and 727 and their corresponding rules. 	See Debtors’
Memorandum of Law in Opposition to Motion to Strike Discharge at 2-3(Arguing that
Biggins has failed to extend time under both Rules 4004(b) and 4007(c)). 	Even if I could
undo the Discharge Order as a clerical error or under the guise of equitable authority,
Biggins’ Proffered Complaint would be met with a dismissal motion for untimeliness which
I would have to grant. 	In short, filing the Proffered Complaint would be an exercise in
futility.
The result here may seen harsh, but the procedures and deadlines established by the
Bankruptcy Code and Rules are carefully crafted to create a delicate balance between the
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14 Given the contingency basis upon which Biggins is pursuing the Shevchenko
judgment, there is a pending motion by the UST to conduct a Rule 2004 examination of Biggins
to examine his standing to pursue a claim. That motion is currently scheduled on August 6,
2007, along with a supplemental discovery motion pressed by Biggins. The UST indicated that a
ruling against Biggins on this Motion would render her motion moot, but I will wait until August
6 for confirmation of this position.
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competing interests of creditors pursuing their claims and debtors in obtaining a fresh start
and finality. While Biggins has been diligent in pursuing his claims, he has done so in a legal
arena that he is unfamiliar with and without the assistance of counsel. However, the choice
to appear pro se was his. It is not the duty of the Court to educate him. On the contrary:
[T]he usual legal rule is that parties in interest in any case must know the law and
foresee its consequences or suffer them. In bankruptcy, not even a pro se creditor
would be excused from compliance with a rule or statute despite his truthful
explanation, “I just didn't think about it.”
In re Brown, 178 B.R. 722, 726 (Bankr. E.D. Tenn. 1995). In this case, his misunderstanding
of the Code provisions and Bankruptcy Rules has cost him the opportunity to object to the
entering of Debtor’s discharge.
CONCLUSION
For the foregoing reasons, the Motion is denied. 	An order consistent with this
Memorandum Opinion shall be entered.14
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
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UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
KONSTANTYN BUGARENKO, 	: 	Bankruptcy No. 06-14834DWS
:
Debtor. 	:
ORDER
AND NOW this 2nd day of August 2007, upon consideration of the Motion to Strike
Discharge and Reappoint Chapter 7 Trustee (the “Motion”) filed by Thomas A. Biggins
(“Biggins”) and the objection thereto of the Debtor and the United States Trustee, and after
notice and hearing, and for the reasons stated in the accompanying Memorandum Opinion;
It is hereby ordered that the Motion is DENIED.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
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