United States Court of Appeals,
Eleventh Circuit.
No. 94-4254.
In re Menelaos P. DEMOS, Debtor.
Arthur R. MARSHALL, III., M.D., Plaintiff-Appellant,
v.
Menelaos P. DEMOS, Defendant-Appellee.
July 12, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-1711-CIV), Sidney M. Aronovitz, Judge.
Before COX, Circuit Judge, HILL and GARZA*, Senior Circuit Judges.
HILL, Senior Circuit Judge:
This is an appeal from a district court order affirming a
bankruptcy court's dismissal of Appellant/Creditor's adversary
complaint as untimely filed. Appellant maintains (1) that the
district court erred in not finding that his complaint was timely
filed, the extension of time having been validly granted to him;
(2) that the complaint was timely filed inasmuch as it was in
reliance upon an order of the bankruptcy court which had not been
modified, vacated or set aside, whether subject thereto or not;
and (3) that, the foregoing considered, the bankruptcy court abused
its discretion in not exercising its equitable powers under 11
U.S.C. § 105 to find the complaint timely filed. For reasons
hereinafter stated, we reverse.
I. BACKGROUND
On October 30, 1992, Debtor, Menelaos P. Demos, filed a
*
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
petition for relief under Chapter 7 of the Bankruptcy Code.
February 8, 1993, was the deadline for filing complaints objecting
to discharge and to determine dischargeability. Problems then
developed. There were creditors who might, or might not, wish to
file adversary complaints. Examination of the Debtor under
Bankruptcy Rule 2004 would be of importance in their decisions to
file or not file. The Debtor's attorney was unable to attend the
Rule 2004 examination on the date set and sought accommodation by
postponement. Postponement might jeopardize creditors' rights to
file their adversary complaints or compel them to file when the
2004 proceeding might have persuaded them not to do so. Counsel
for the parties conferred and worked out an arrangement to protect
the creditors and to accommodate the problems of Debtor's attorney.
On January 12, 1993, pursuant to that arrangement, Trustee filed
his "Motion to Extend the Times for Objections to Claimed
Exemptions and Complaints to Determine Dischargeability and
Objecting to Discharge." Debtor joined the motion. The motion was
premised upon the problems briefly recited above and specifically
asked the bankruptcy court to act pursuant to 11 U.S.C. § 105.1
On January 19, 1993, the bankruptcy court entered its "Order
Granting Motion to Extend the Times for Objections to Claimed
1
11 U.S.C. § 105 provides:
(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.
Exemptions [and] Complaints to Determine Dischargeability and
Objecting to Discharge" extending the deadline until March 15,
1993.
On January 21, 1993, Appellant/Creditor, Arthur R. Marshall,
III, filed "Marshall's Notice of Adoption and Concurrence with
Trustee's Motion to Extend the Times for Filing Complaints to
Determine Dischargeability and Objecting to Discharge." On March
15, 1993, Marshall filed his "Adversary Complaint."
On April 5, 1993, despite having joined in the request for an
2
extension of time, Demos filed a motion to dismiss Marshall's
adversary complaint as untimely filed and, therefore, outside the
court's jurisdiction. On May 14, 1993, the bankruptcy court
entered its "Order Granting Debtor's Motion to Dismiss Marshall's
Adversary Complaint." In the order, the bankruptcy court relied on
Fed.R.Bankr.P. 4007(c) and In re Gallagher,
70 B.R. 288
(Bankr.S.D.Tex.1987) to hold that Marshall's adversary complaint
was untimely filed, dismissing it with prejudice. The district
court affirmed. This appeal followed.
II. DISCUSSION
The bankruptcy court entered an order extending the time for
filing complaints to determine dischargeability and objections to
discharge. Marshall filed his complaint within the extension
granted by the order. Marshall's complaint was timely filed unless
there is some reason why Marshall could not rely upon the court's
order.
The bankruptcy court found that "the creditor [Marshall] never
2
The motion was filed by new counsel.
filed or pursued his own motion for extension, and cannot take
advantage of the motion filed by the Trustee." The court reasoned
that:
... the Trustee's timely motion for an extension of time to
file objections to discharge or dischargeability will not
extend the time for filing objections by any other party in
interest, and the bankruptcy rule authorizing the extension of
time permits only the person seeking the extension, and who
timely requests such extension, to take advantage of same. In
re Gallagher,
70 B.R. 288, (Bankr.S.D.Tex.1987).
There are several problems with this analysis. First, the
motion for an extension of time in this case was not filed pursuant
to the "bankruptcy rule authorizing the extension of time."
Bankruptcy Rule 4004 is not mentioned by the motion. The motion
specifically invoked the equitable powers of the bankruptcy court
under 11 U.S.C. § 105. Calling the court's attention to the
problems created by the large numbers of "creditors" involved in
the bankruptcy and the possibility that the Debtor's attorney might
not be able to attend the 2004 examination of the Debtor, the
Debtor and the Trustee requested the court to exercise its
equitable power to extend the time for filing complaints. Section
105 of the Bankruptcy Code authorizes the bankruptcy court to
"issue any order ... that is necessary or appropriate to carry out
the provisions of [the bankruptcy code]" 11 U.S.C. § 105. This
would include the order entered in this case. Therefore, even if
the request for an extension of time under Rule 4004 normally
inures to the benefit of the movant only, this limitation does not
necessarily apply in this case.
Furthermore, even if we were dealing with an application for
an extension of time made pursuant to Rule 4004, the Gallagher case
cited by the bankruptcy court, is inapposite to the facts of this
case. In that case, the Trustee filed a motion for an extension of
time for filing complaints, but while it was still pending she
informed the court that she did not wish to pursue the motion. A
creditor, however, who had not filed a motion, sought after the bar
date to rely on the Trustee's timely filed motion to persuade the
3
court to issue an order extending the creditor's time. The
Gallagher court declined to do so. Therefore, there was no order
extending the time for filing adversary complaints; no creditor
could have relied on one.
In this case, the bankruptcy court issued an order extending
the time for filing complaints to determine dischargeability. A
party may rely on such an order. In re Overmyer,
24 B.R. 437, 441
(Bankr.S.D.N.Y.1982). See also In re Falk,
96 B.R. 901
(Bankr.D.Minn.1989); In re Herring,
116 B.R. 313
(Bankr.M.D.Ga.1990). To hold otherwise would be to permit parties
the option of deciding which orders to obey, or conversely to
condemn parties to the instability of guessing which orders to
abide and which to ignore. This will not do.
Of course, the reliance of a party on an order must be
reasonable. A party may not rely on an order that clearly has
nothing to do with him. In this case, it was entirely reasonable
for Marshall to rely on the bankruptcy court's order. The
Trustee's motion, joined by the Debtor, and served on Marshall,
stated:
3
Additionally, it should be noted that in Gallagher the
Trustee's motion never referred to any creditors. In this case,
the Trustee's motion specifically referred to creditors.
7. That there are numerous interested parties and attorneys
who wish to attend the 2004 Examination of the Debtor ...
which would be after the deadline for exemptions and the
deadline for determining dischargeability and objecting to
discharge.
8. That due to the large numbers of creditors involved in this
bankruptcy proceeding, the Debtor's attorney and the Trustee
have no objection to the said extension. (emphasis added)
The court's subsequent order stated in part:
3. That the deadline for filing "Complaints to Determine
Dischargeability and Objecting to Discharge" be, and the same
is hereby, extended up to and including March 15, 1993.
The plain meaning of this language is that an extension of
time was granted to creditors—all creditors. There is no one else
to whom the order can refer, as only creditors are allowed to file
such complaints. It cannot be said that Marshall's reliance on the
plain meaning of this order was unreasonable.
Demos argues that notwithstanding the plain meaning of the
order, Marshall's reliance was unreasonable because, as noted
above, normally a request for an extension of time inures to the
benefit of the movant only,4 and Marshall knew or should have known
that. Demos argues that the wording of the bankruptcy court's
order (as well as Trustee's motion) was merely sloppy, and that
Marshall should have inquired regarding the deadline for filing
complaints.
We disagree. The court's order extended the time for filing
complaints to determine dischargeability and objecting to
4
But see In re Myers,
168 B.R. 856 (Bankr.D.Md.1994) in
which the court held that a Chapter 11 trustee can file a motion
to extend the time for filing complaints on behalf of creditors
under Section 523 and Rule 4007. Furthermore, the Advisory
Committee Note To Rule 4004 states that "An extension granted on
a motion ... would ordinarily benefit only the movant, but its
scope and effect would depend on the terms of the extension."
discharge. Creditors are the only parties allowed to file these
complaints and Marshall filed his within the extended time. If the
bankruptcy court did not intend to grant creditors an extension of
time—as the district court found—then the bankruptcy court made a
mistake, and it should have exercised its equitable powers under
Section 105 to allow Marshall's complaint to stand. See In re
Isaacman,
149 B.R. 502, 508 (Bankr.W.D.Tenn.1993).5
For these reasons, we hold that Marshall's Adversary Complaint
in this matter was timely filed.
REVERSED and REMANDED.
5
We say so notwithstanding that we have previously held that
creditors have a duty to investigate in some cases of judicial
"mistake," e.g., where no bar date is set. In re Alton,
837 F.2d
457 (11th Cir.1988). See also In re Anwiler,
958 F.2d 925 (9th
Cir.1992) (conflicting bar dates). A creditor may not stand
silent in the face of judicial silence or obvious conflict and
complain later of confusion. Marshall, however, did neither. He
relied on a validly entered court order which extended a deadline
to which he was subject.
