Scott et al v. Scott

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UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re: 	D EBORAH S. SCOTT ,
Debtor
Case No. 	05-31538
Adv. No. 	05-3266
DELBERT B. SCOTT ,
Plaintiff
v.
DEBORAH S. SCOTT ,
Defendant
Judge L. S. Walter
Chapter 7
DECISION GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT DEBORAH SCOTT’S MOTION TO DISMISS
The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and
the standing General Order of Reference in this District. This proceeding constitutes a core
proceeding pursuant to 28 U.S.C. § 157(b)(2). 	This matter is before the court on Debtor-
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: October 07, 2005
____________________________________________________________
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Defendant Deborah Scott’s Motion to Dismiss Adversary Proceeding [Doc. 7]. The twenty day
notice, required with the motion, was served on September 19, 2005 [Doc. 9]. As no response
has been filed within the proper time after the notice was served, the court is prepared to render
its decision.
FACTUAL AND PROCEDURAL BACKGROUND
Debtor Deborah Scott (“Debtor”) filed her bankruptcy petition on February 24, 2005.
The § 341 first meeting of creditors was scheduled for April 14, 2005. Prior to the meeting,
creditors were provided a notice of the § 341 meeting which also contained the deadline to file
complaints objecting to discharge / dischargeability of certain debts. The deadline for filing such
a complaint was June 13, 2005.
On June 24, 2005, Plaintiff Delbert Scott (“Plaintiff”) filed an adversary complaint
captioned a “Complaint Objecting to Discharge and For Fraud” [Adv. Doc. 1]. The complaint
was amended by the Plaintiff on July 20, 2005 [Adv. Doc. 2]. 	Both the original and amended
complaint are somewhat vague, but appear to contain three counts: one count objecting to the
Debtor’s discharge, one count for “fraud,” and one count for a determination of the
dischargeability of the debt owed by the Debtor to the Plaintiff under 11 U.S.C. § 523(a)(5)
[Adv. Docs. 1 and 2].
On August 26, 2005, the Debtor filed a motion to dismiss the complaint for lack of
timeliness. Specifically, the Debtor notes that the Plaintiff’s Complaint objecting to discharge
was filed on June 24, 2005 beyond the June 13, 2005 deadline and without first obtaining an
extension of the June 13, 2005 deadline. The Plaintiff has not responded to the motion to
dismiss.
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LEGAL ANALYSIS
The deadline for filing a complaint objecting to a debtor’s discharge in a Chapter 7 case
under 11 U.S.C. § 727 is sixty (60) days from the date first set for the § 341 meeting of creditors.
Fed. R. Bankr. P. 4004(a). In this case, the deadline for filing such a complaint was June 13,
2005 and that date had passed by the time the Plaintiff filed his complaint on June 24, 2005. The
Plaintiff did not request an extension of the deadline, did not respond to the Debtor’s motion to
dismiss, or otherwise provide reasons why the deadline should be tolled. Consequently, the
court will dismiss the cause of action in the Plaintiff’s adversary complaint objecting to the
Debtor’s discharge.
However, the Plaintiff’s complaint contains two other counts: 1) one for “fraud” which
the court construes as a request for a determination of the dischargeability of a debt for fraud
under 11 U.S.C. § 523(a)(2) or (a)(4); and 2) one for determination of the dischargeability of a
debt under 11 U.S.C. § 523(a)(5). The deadlines for filing complaints to determine the
dischargeability of debts are found in Fed. R. Bankr. P. 4007. The Rule provides different
deadlines depending on the type of debt at issue. If a plaintiff’s complaint objects to the
dischargeability of the kinds of debts discussed in 11 U.S.C. § 523(c), the complaint must be
filed no later than sixty (60) days following the first date scheduled for the § 341 meeting of
creditors. Fed. R. Bankr. P. 4007(c). However, Rule 4007(b) states that there is no deadline for
the filing of a complaint to determine the dischargeability of other types of debts not described in
§ 523(c). Fed. R. Bankr. P. 4007(b).
As such, the sixty (60) day deadline applies only to complaints to determine the
dischargeability of the types of debts indicated in 11 U.S.C. § 523(c) which includes debts under
§ 523(a)(2), § 523(a)(4), § 523(a)(6), and § 523(a)(15). 11 U.S.C. § 523(c)(1). Based on this
analysis, the sixty (60) day limitation applies to the Plaintiff’s claim to determine the
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dischargeability of a debt for “fraud” under either § 523(a)(2) or § 523(a)(4). Because the
Plaintiff’s complaint was filed after the deadline had passed, the Plaintiff did not request an
extension of the deadline, and did not otherwise respond to the motion to dismiss, the court will
dismiss the Plaintiff’s count for “fraud” as untimely.
The Plaintiff’s third count, for a determination of the dischargeability of a debt under 11
U.S.C. § 523(a)(5), however, is not subject to the sixty (60) day deadline found in Fed. R. Bankr.
P. 4007(c). Consequently, this claim is timely filed and withstands the Debtor’s motion to
dismiss.
CONCLUSION
For the above reasons, the court grants, in part, and denies, in part, Defendant-Debtor
Deborah Scott’s Motion to Dismiss. Specifically, the court concludes that the Plaintiff’s
Objection to Discharge is untimely and that this cause of action is hereby dismissed. 	In
addition, the Plaintiff’s count for “fraud,” construed as a cause of action to determine the
dischargeability of a debt under 11 U.S.C. § 523(a)(2) or (a)(4) is also dismissed as untimely
filed.
However, the Plaintiff’s count to determine the dischargeability of a debt pursuant to 11
U.S.C. § 523(a)(5) is not subject to the sixty (60) day deadline and is, therefore, timely filed
under Fed. R. Bankr. P. 4007(b). Consequently, the Debtor-Defendant’s motion to dismiss that
count is denied and the Plaintiff may proceed with his cause of action to determine the
dischargeability of the $20,000 debt at issue under 11 U.S.C. § 523(a)(5).
SO ORDERED.
cc:
Deborah S Scott
150 Sackett Drive
Monroe, OH 45050
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Jeffrey P Albert
4403 North Main Street
Dayton, OH 45405-5016
937-275-7170
Email: albertkrochmalecf@earthlink.net
Delbert B. Scott
4314 C1 Riverside Drive
Dayton, OH 45405
Lawrence J White
2533 Far Hills Avenue
Second Floor
Dayton, OH 45419
(937) 294-5800
Fax : 937-298-1503
Email: dawn@lawrencewhite.com
Donald F Harker
One First National Plaza
Suite 2103
130 W Second Street
Dayton, OH 45402-1503
937-461-8800
Asst US Trustee (Day)
Office of the US Trustee
170 North High Street
Suite 200
Columbus, OH 43215-2417
614-469-7411
U.S. Trustee
# # #
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