Kontrick, Andrew J. v. Ryan, Robert A. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2683
IN RE: ANDREW J. KONTRICK,
Debtor-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 5736—Harry D. Leinenweber, Judge.
____________
ARGUED JANUARY 10, 2002—DECIDED JULY 8, 2002
____________
Before HARLINGTON WOOD, JR., RIPPLE and ROVNER,
Circuit Judges.
RIPPLE, Circuit Judge. Dr. Andrew Kontrick filed a Chapter
7 bankruptcy petition on April 4, 1997. Dr. Robert Ryan, a
judgment creditor, then filed an adversary proceeding
objecting to Dr. Kontrick’s discharge. Ruling on summary
judgment, the bankruptcy court denied Dr. Kontrick dis-
charge under 11 U.S.C. § 727(a)(2)(A). The district court
affirmed the bankruptcy court’s decision. Dr. Kontrick now
appeals and raises three objections to the bankruptcy court’s
decision. First, he argues that Dr. Ryan’s complaint was un-
timely. Second, he argues that the bankruptcy court incor-
rectly concluded that he had waived his objection to the
timeliness of Dr. Ryan’s complaint and, further, that he
could not have waived such an objection because Federal
Rule of Bankruptcy Procedure 4004(a)’s time limit is jur-
isdictional and not subject to waiver. Finally, Dr. Kontrick
2 No. 01-2683
contends that the bankruptcy court improperly granted
summary judgment because there is a genuine issue of
material fact about his intent in transferring his paychecks
to his wife in the year before bankruptcy. For the reasons set
forth in this opinion, we affirm the judgment of the district
court.
I
A. Facts
Dr. Ryan and Dr. Kontrick, both cosmetic and plastic
surgeons, were business associates. Each was a 50% share-
holder in a professional corporation that Dr. Ryan had
established. Dr. Kontrick had begun as an employee of the
corporation and then, in 1989, he became part-owner. The
association of the two physicians in this arrangement was
a short and unhappy one. A variety of disputes, the details
of which are not material to this appeal, arose. These dis-
agreements were heard in two separate arbitrations. In the
first, commenced in January 1992, Dr. Ryan was awarded
$47,157.81 plus interest, expenses and attorneys’ fees. Dr.
Kontrick paid a total of $65,261.32 in satisfaction of this first
arbitration. The second arbitration, commenced in October
1992, resulted in a 1995 award to Dr. Ryan of $519,324.42,
including punitive damages, costs, expenses and attorneys’
fees. The Circuit Court of Cook County entered a judgment
on the award; the Illinois Appellate Court later reversed the
punitive damages award and reduced the prejudgment
interest rate. See Ryan v. Kontrick, 710 N.E.2d 11 (Ill. App. Ct.
1999).
During the first arbitration, Dr. Ryan filed a citation to
discover Dr. Kontrick’s assets. In an ensuing deposition, Dr.
Kontrick was asked about his family finances, including his
decision to remove his name from the family checking
No. 01-2683 3
account. Dr. Kontrick testified that personal expenses were
paid from that account, now only in his wife’s name, and
admitted that “[i]t used to be my personal account. I don’t
have that account anymore.” R.16-1, Ex.7 at 7-8; see id. at 10-
11, 17-19. He continued: “What prompted this change was
the ridiculous maneuvers that you and your client [Dr.
Ryan] have put me through in order to collect money which
you don’t have coming to you.” Id. at 9. Dr. Kontrick further
elaborated, stating that “there are just thousands and
thousands of thieves out there that are ready to come after
you on any pretense and rob you of whatever belongings
you might have. So I felt this was a way of protecting
myself.” Id. at 12. In Dr. Kontrick’s view, this arrangement
would protect him from people who were “more than
willing to take your money on some pretense or some
technicality that they push through some court and all kinds
of wranglings. As you know, this is exactly what went on.”
Id. To protect himself from individuals, whom he identified
as former patients who have suffered “some perceived
wrong,” Dr. Kontrick divested himself of his personal
wealth, transferring much of it to his wife and daughter. See
id. at 13-14. As part of this effort to insulate his assets from
potential judgment creditors, Dr. Kontrick removed his
name from the family checking account, leaving his wife as
the sole signatory; he continued to deposit his paychecks
into that account. See id. at 17-19. Summing up his approach
to his finances, Dr. Kontrick testified that “I felt that to have
any sort of assets that could possibly be taken away from
me would be foolish. So I basically divested myself of
everything.” Id. at 29-30.
B. Bankruptcy Court Proceedings
Dr. Kontrick filed for bankruptcy in April 1997. On Jan-
uary 13, 1998, Dr. Ryan, after having been granted three
4 No. 01-2683
extensions of time, filed his adversary complaint objecting
to Dr. Kontrick’s discharge. This adversary complaint in-
cluded four counts (I-IV) objecting to discharge under 11
U.S.C. §§ 727(a)(2)-(5) and three counts (V-VII) seeking a
determination of the nondischargeability of Dr. Kontrick’s
debts to Dr. Ryan under 11 U.S.C. §§ 523(a)(2), (4) & (6). Dr.
Ryan filed an amended complaint on May 6, 1998, without
a court-approved extension, which included for the first
time the specific allegation that Dr. Kontrick had violated
§ 727(a)(2)(A) by taking his name off of a family checking
account (“family account”) and continuing to deposit his
1
paychecks into the account. Dr. Kontrick answered the
amended complaint on June 10, 1998; in his answer, Dr.
Kontrick admitted the transfers to the family account but
denied violating § 727(a)(2)(A).
In March 1999, Dr. Ryan moved for summary judgment
on all counts. Appended to his motion was a statement of
facts pursuant to Local Bankruptcy Rule 402 (“402 M state-
ment”). In August 1999, Dr. Kontrick filed a motion to strike
portions of Dr. Ryan’s 402 M statement. Dr. Kontrick
maintained that “Ryan’s 402 M statement contains an array
of material that is not tied to anything alleged in the com-
plaint.” R.10-1, Ex.12 at 2. In this motion, Dr. Kontrick
quoted Dr. Ryan’s amended complaint for the purpose of
comparing the allegations in the amended complaint with
the facts claimed in the 402 M statement. Dr. Kontrick also
filed a cross-motion for summary judgment.
The bankruptcy court granted Dr. Ryan’s motion for
summary judgment on Count I. The court also granted in
part and denied in part Dr. Kontrick’s motion to strike. The
1
The original complaint included an objection to discharge
based on § 727(a)(2)(A), but did not include a factual allegation
with respect to the family account.
No. 01-2683 5
court found that, because Dr. Kontrick continued to place
his paycheck into the family account, there was a transfer
within one year of bankruptcy, as required by § 727(a)
(2)(A). Further, the court reasoned that, although “[g]en-
erally, the question of intent will prevent the granting of
summary judgment . . . here, the Debtor’s intent is clear.”
Bankr. Op. at 14. “Kontrick, during the deposition pursuant
to the citation to discover assets, freely admitted he trans-
ferred the bank account to Carolyn [his wife] to prevent his
creditors from attaching the funds.” Id. at 14-15. Therefore,
the court concluded, Dr. Kontrick had made transfers within
one year of bankruptcy with the “intent to hinder, delay, or
defraud his creditors” within the meaning of § 727(a)(2)(A).
The court denied discharge and then dismissed the remain-
ing counts in Dr. Ryan’s complaint.
Dr. Kontrick filed a motion to reconsider the bankruptcy
court’s decision. He argued that he had objected to the
timeliness of Dr. Ryan’s amended complaint and that the
family account claim was improperly considered because it
was untimely under Bankruptcy Rule 4004(a). In denying
the motion to reconsider, the bankruptcy court held that Dr.
Kontrick had waived an objection to the timeliness of the
family account claim.
C. District Court Proceedings
Dr. Kontrick appealed the bankruptcy court’s decision to
the United States District Court for the Northern District of
Illinois. Dr. Kontrick submitted that the bankruptcy court
had erred in finding that he had waived his Rule 4004(a)
objection and that, even if he had failed to raise the objec-
tion, it could not be waived because Rule 4004(a) is jurisdic-
tional and thus not subject to equitable doctrines such as
waiver. Dr. Kontrick also contended that the bankruptcy
6 No. 01-2683
court erred in granting summary judgment because there
was a genuine issue of material fact about his intent in
transferring his paycheck to his wife’s account in the year
before bankruptcy.
The district court rejected all of Dr. Kontrick’s arguments.
First, the court concluded that Rule 4004(a) was not jurisdic-
tional; it was more like a statute of limitations and could be
waived. Second, the court determined, that, although Dr.
Kontrick had mentioned that the amendment was late in his
motion to strike, he did not raise the issue in his responsive
pleading and thus had waived it. Finally, the court agreed
with the bankruptcy court that Dr. Kontrick’s deposition
testimony from 1993 was conclusive on the issue of intent
and affirmed the bankruptcy court’s grant of summary
judgment.
II
A.
We turn first to the timeliness of Dr. Ryan’s objection to
the discharge in bankruptcy. There is no dispute that Dr.
Ryan’s amended complaint, which included the family
account allegation, was filed beyond the 60-day limit for
filing objections and that there was no court-approved
2
extension of time permitting him to file when he did. The
2
Neither the bankruptcy court nor the district court discussed
whether the family account allegation properly related back to
the timely complaint of January 13, 1998, such that the family
account claim itself was timely. See In re Magno, 216 B.R. 34, 37-40
(BAP 9th Cir. 1997). Both courts assumed that the amended
complaint and the family account allegation of May 6, 1998, were
untimely. Dr. Ryan does not contest this assumption on appeal.
(continued...)
No. 01-2683 7
bankruptcy court and the district court concluded that Dr.
Kontrick had waived any objections to the timeliness of
Dr. Ryan’s complaint. To determine whether the 60-day
time limit precludes consideration of Dr. Ryan’s objection to
discharge, we must engage in a two-part inquiry. First,
we must decide whether the 60-day time limit for filing
objections to discharge under § 727(a), see Fed. R. Bankr.
P. 4004(a), is a jurisdictional prerequisite that cannot be
waived, or whether it is akin to a statute of limitations and
thus subject to waiver. If Rule 4004(a) is a jurisdictional re-
quirement, then Dr. Kontrick cannot have waived his ob-
jection. Second, if we determine that the time limit is not
jurisdictional, we must decide whether the bankruptcy court
correctly determined that Dr. Kontrick did indeed waive
objection.
1.
We first focus on whether the time limit for filing objec-
tions to discharge contained in Federal Rule of Bankruptcy
Procedure 4004(a) is a jurisdictional prerequisite and, there-
fore, cannot be waived. “Statutory filing deadlines are gen-
erally subject to the defenses of waiver, estoppel, and equit-
able tolling.” United States v. Locke, 471 U.S. 84, 94 n.10
(1985). Our task is to determine whether Rule 4004(a) is an
exception to this principle. This question has divided the
bankruptcy courts that have had occasion to confront it.
Compare In re Santos, 112 B.R. 1001, 1008 (BAP 9th Cir. 1990)
(holding that Rules 4004(a) and 4007(c) are subject to waiv-
2
(...continued)
Therefore, we shall proceed in the same fashion as the bank-
ruptcy and district courts and assume that the amended com-
plaint was untimely.
8 No. 01-2683
er); In re Steiner, 209 B.R. 281, 286 (Bankr. E.D.N.Y. 1996)
(same); In re Walker et al., 195 B.R. 187, 206-07 (Bankr. N.H.
1996) (same); In re Begue, 176 B.R. 801, 804 (Bankr. N.D. Ohio
1995) (same), with In re Glover, 212 B.R. 860, 861 (Bankr. S.D.
Ohio 1997) (holding that time limits are jurisdictional and
not subject to waiver); In re Ham, 174 B.R. 104, 106-07
(Bankr. S.D. Ill. 1994) (same); In re Kirsch, 65 B.R. 297, 299-
303 (Bankr. N.D. Ill. 1986) (same). United States Courts of
Appeals opinions, however, have produced unanimity. See
In re Benedict, 90 F.3d 50, 54-55 (2d Cir. 1996) (holding that
time limits are not jurisdictional and thus are subject to
equitable defenses); Farouki v. Emirates Bank Int’l, Ltd., 14
F.3d 244, 248 (4th Cir. 1994) (same).
We begin with the text of the provision in issue. Rule
4004(a) provides: “In a chapter 7 liquidation case a com-
plaint objecting to the debtor’s discharge under § 727(a) of
the Code shall be filed no later than 60 days after the first
date set for the meeting of creditors.” Fed. R. Bankr. P.
4004(a). The analogous provision to Rule 4004(a) for objec-
tions to the dischargeability of a particular debt is Rule
4007(c) which provides: “A complaint to determine the dis-
chargeability of a debt under § 523(c) shall be filed no later
than 60 days after the first date set for the meeting of
creditors under § 341(a).” Fed. R. Bankr. P. 4007(c). Both of
these rules contain provisions for the extension of the time
limit. Rule 4004(b) permits the bankruptcy court to extend
the time limit for cause, if the motion is filed before time
expires. See Fed. R. Bankr. P. 4004(b). Rule 4007(c) has a
similar provision for extending its time limit. See Fed. R.
3
Bankr. P. 4007(c).
3
Because the rules are almost identical, it is appropriate to
consider decisions by courts construing Rule 4007(c) as well as
(continued...)
No. 01-2683 9
As the opinions of the courts that have confronted this
issue demonstrate, the texts of these bankruptcy rules yield
no definitive answer to the question of whether the time
limitations contained in these rules are jurisdictional in
nature. The rules we have just described do not, as a matter
of textual interpretation, address the issue. Although Rule
9006(3) restricts the grounds upon which the bankruptcy
court may enlarge the time for actions required by Rules
4004(a) and 4007(c), these restrictions still vest a great deal
of discretion in the bankruptcy court.
In the absence of a clear textual resolution of the issue, we
must look elsewhere. In our view, the decision of the United
States Bankruptcy Appeals Panel of the Ninth Circuit in In
re Santos, 112 B.R. 1001, 1005 (BAP 9th Cir. 1990), presents a
sound framework for analyzing whether the time limita-
tions of Rules 4004(a) and 4007(c) are jurisdictional. As that
court noted, Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393-97 (1982), teaches that, in order to determine whether
the filing requirements are jurisdictional, we must examine
“the structure, legislative history and underlying policy of
the provision in question and the related statutory scheme.”
In re Santos, 112 B.R. at 1005.
a.
We turn first to an examination of the role that these rules
play within the overall structure of the bankruptcy rules in
the hope that such an inquiry might yield a more definitive
understanding of whether the rules in question ought to be
governed by the general principle that a filing deadline is
3
(...continued)
Rule 4004(a). See In re Santos, 112 B.R. 1001, 1004 n.2 (BAP 9th Cir.
1990).
10 No. 01-2683
subject to equitable defenses or whether they are jurisdic-
tional in nature.
In a thoughtful effort to apply this methodology, one
bankruptcy decision, In re Kirsch, 65 B.R. 297, 301-02 (Bankr.
N.D. Ill. 1986), reasoned that the situation presented by
these bankruptcy rules is analogous to the one presented to
this court in Hulson v. Atchison, Topeka & Santa Fe Railway
Co., 289 F.2d 726 (7th Cir. 1961). In Hulson, this court,
applying the Federal Rules of Civil Procedure, held that the
deadline for filing a motion for a new trial or a judgment
notwithstanding the verdict under Rule 50(b) was jurisdic-
tional and could not be extended pursuant to Rule 6(b). See
Hulson, 289 F.2d at 729. The bankruptcy court in Kirsch
analogized Rule 6(b) to Bankruptcy Rule 9006(b). See In re
Kirsch, 65 B.R. at 301-02. It first noted that Rule 9006(b) was
modeled on Rule 6 and serves a similar purpose in describ-
ing the proper functioning of time limits elsewhere in the
rules and in limiting the power of courts to enlarge the time
limits contained in certain rules. The court then noted that
Rule 6(b), although generally permitting the district court to
enlarge the time in which an act must be done under the
rules, specifically excludes from this general approach,
actions “under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and
(e), and under 60(b), except to the extent and under the con-
ditions stated in them.” See In re Kirsch, 65 B.R. at 301 (quot-
ing Fed. R. Civ. P. 6(b)). In Hulson, this court had said that
the time limitations contained in Rules 50(b), and 59 (b), (d)
and (e) prohibit the district court from acting on a motion
not filed within the time specified in the rule. See Hulson,
289 F.2d at 729. Because Bankruptcy Rule 9006(b) contains
the same limit with respect to Rule 4004(a), reasoned the
court in Kirsch, the limitations in Rule 4004(a) also are not
subject to judicial abrogation. See In re Kirsch, 65 B.R. at 302.
In light of the policy concerns that animate the bankruptcy
rules at issue, we do not think that the analogy to the civil
No. 01-2683 11
rules relied upon by the court in Kirsch is very helpful in
resolving the problem before us. Rule 50(b) and the other
civil rules referenced in Rule 6(b) govern actions after a final
judgment has been entered. Unless the time limits are
strictly construed, a prevailing party will be left uncertain as
to the status of his judgment. Substantial prejudice to a
prevailing party could occur if the defeated party had an
indefinite time period to seek a new trial. By contrast, Rules
4004(a) and 4007(c) apply before any adjudication has taken
place and govern the timeliness of a complaint, which in
turn invites a responsive pleading, an answer. A debtor can
defeat an untimely complaint by raising Rule 4004(a) or
Rule 4007(c) as an affirmative defense in his answer. Al-
though there is an important interest in limiting the time in
which the dischargeability of debts can be challenged in
order to ensure that debtors are not “harassed by creditors
after their claims have been discharged in bankruptcy,”
Kirsch, 65 B.R. at 300, we do not think that it is at all evident
that Congress intended to limit the authority of the bank-
ruptcy court so rigidly as to preclude all relief from the time
constraints of the rule. Notably, Rules 4004(b) and 4007(c)
explicitly permit the bankruptcy court to enlarge the time
for filing a complaint objecting to discharge. As the court
pointed out in In re Santos, 112 B.R. at 1006, if Rule 4004(a)
is jurisdictional, then even a final judgment would be
subject to collateral attack, a result that would hardly serve
the Bankruptcy Code’s goal of promoting certainty and
finality for debtors. Were we to hold that these rules were
jurisdictional, bankruptcy judgments would be subject to
collateral attack after the bankruptcy court has completed its
work and after the parties have complied with the court’s
mandate. See In re Santos, 112 B.R. at 1006. This situation
would be “clearly at odds with the purpose of promoting
finality and certainty of relief.” Id.12 No. 01-2683
Even when the underlying policy concerns of the Bank-
ruptcy Code are reviewed without reference to the analogy
to the civil rules suggested in Kirsch, characterization of
these bankruptcy rules as jurisdictional would yield too
rigid a result to achieve the goals of the bankruptcy statute.
As the bankruptcy panel pointed out in Santos, there are, to
be sure, some goals of bankruptcy relief that are promoted
by expeditious and definitive resolution of the question of
dischargeability. Indeed, among the goals of the rules in
question is furtherance of the prompt administration of
bankruptcy estates and protection of the “fresh start” ob-
jective of the Code by allowing the debtor to enjoy finality
and certainty of relief. See In re Santos, 112 B.R. at 1006.
However, as the panel in Santos also pointedly noted, these
goals are best fostered, not by a rigid jurisdictional ap-
proach, but by the exercise of equitable discretion in a man-
ner consistent with the policies that animate the Bankruptcy
Code. See id. Indeed, as another Ninth Circuit bankruptcy
panel intimated, requiring that an enlargement of time be
sought during the period in which the complaint should
have been filed, but nevertheless giving at least that limited
opportunity evidences that Congress, although desirous of
finality, realized that a rigid rule also could be inequitable
at times and frustrate the goals of the Code. See In Re Rhodes,
61 B.R. 626, 629-30 (BAP 9th Cir. 1986).
b.
As the bankruptcy panel in Santos also noted, the overall
statutory structure of the bankruptcy statute also provides
support for the view that the rules are not jurisdictional. See
In re Santos, 112 B.R. at 1005. The statutes granting juris-
diction to the bankruptcy and district courts over bank-
ruptcy matters do not indicate that timeliness of objec-
tions to discharge is a jurisdictional predicate. See 28 U.S.C.
No. 01-2683 13
§§ 157(b)(1), 1334. An “objection[ ] to discharge” is a “core
proceeding[ ]” over which the bankruptcy court exercises
jurisdiction. 28 U.S.C. § 157(b)(2)(J). Nowhere in the defini-
tion of core proceedings is the adjective “timely” used to
define a core proceeding. Thus, there is nothing within
§ 157(b) to indicate that a bankruptcy court is precluded
from considering untimely objections to discharge.
Matters of timeliness are, notably, present in other pro-
visions. For instance, section 157(b)(3) states that “[t]he
bankruptcy judge shall determine, on the judge’s own
motion or on timely motion of a party, whether a proceed-
ing is a core proceeding.” 28 U.S.C. § 157(b)(3). Further, for
a party to obtain de novo review in the district court of a
bankruptcy court’s findings of fact and conclusions of law
in a non-core proceeding, that party must “timely and spe-
cifically object[ ].” 28 U.S.C. § 157(c)(1). These references to
timeliness in sections other than the grants of jurisdiction
support the view that timeliness is not a prerequisite to the
bankruptcy court’s exercise of jurisdiction in a core proceed-
ing such as Dr. Ryan’s objection to discharge.
c.
We find the legislative history of the rules in question to
be of marginal assistance in our task. The notes of the Ad-
visory Committee with respect to Rule 4007 state in part:
Subdivision (c) differs from subdivision (b) by imposing
a deadline for filing complaints to determine the issue
of dischargeability of debts set out in § 523(a)(2), (4) or
(6) of the Code. The bankruptcy court has exclusive
jurisdiction to determine dischargeability of these debts.
If a complaint is not timely filed, the debt is discharged.
See § 523(c).
14 No. 01-2683
One plausible reading of this passage is, as the court in
Santos acknowledged, that the bankruptcy court can only act
on a dischargeability complaint if it is filed in a timely
manner. See Santos, 112 B.R. at 1005. However, the notes to
the 1999 amendments explicitly reiterate the right of a party
to seek an enlargement of time, thus acknowledging that
some flexibility was intended by the drafters. In any event,
we agree with the panel in Santos that this passage in the
Committee note is hardly conclusive or even persuasive in
light of the structure and policy of the Code and the bank-
ruptcy rules.
d.
Accordingly, we join our colleagues in the Second and
Fourth Circuits in holding that the timeliness provisions at
issue here are not jurisdictional. See In re Benedict, 90 F.3d 50,
53-54 (2d Cir. 1996); Farouki v. Emirates Bank Int’l Ltd., 14
F.3d 244, 248 (4th Cir. 1994). These rule provisions are
subject to equitable defenses, although those defenses must
be applied in a manner consistent with the manifest goals of
Congress to resolve the matter of dischargeability promptly
and definitively in order to ensure that the debtor receives
a fresh start unobstructed by lingering doubts about the
4
finality of the bankruptcy decree.
4
Contrary to Dr. Kontrick’s assertion, we do not think that the
Supreme Court’s decision in Taylor v. Freeland & Kronz, 503 U.S.
638 (1992), requires a different result. But see In re Leet, 274 B.R.
695, 696-97 (BAP 6th Cir. 2002). In Taylor, the Court held that
there was no good-faith exception to the time limits for filing
objections to a debtor’s list of exempt property. See Taylor, 503
U.S. at 644-45. Under 11 U.S.C. § 522(b), a debtor may claim
certain property as exempt from his bankruptcy estate; the debtor
(continued...)
No. 01-2683 15
4
(...continued)
may elect to use exemptions under state or federal law. See 11
U.S.C. § 522(b)(1)-(2). Section 522(l) describes the procedures for
claiming such exemptions: “The debtor shall file a list of property
the debtor claims as exempt. . . . Unless a party in interest objects,
the property claimed on such list is exempt.” Id. § 522(l). Bank-
ruptcy Rule 4003(b) provides that “[t]he trustee or any creditor
may file objections to the list of property claimed as exempt
within 30 days after the conclusion of the meeting of creditors.”
Fed. R. Bankr. P. 4003(b).
In Taylor, the debtor had claimed as exempt the proceeds from
an employment discrimination lawsuit that was pending in state
court at the time of her bankruptcy filing. See Taylor, 503 U.S. at
640. The parties agreed that there was no basis for her to claim an
exemption for the full amount of the proceeds. See id. at 642.
Nevertheless, the trustee declined to object to the exemption
because he believed that the lawsuit was meritless. See id. at 641.
He was incorrect, and the debtor eventually settled for about
$110,000, a portion of which the debtor paid to her attorneys in
the discrimination suit. See id. Upon learning of the settlement,
the trustee returned to the bankruptcy court almost two years
after the bankruptcy proceedings ended and demanded that the
debtor and her attorneys turn over the funds on the ground that
they were the property of the bankruptcy estate. See id. The trus-
tee argued that the time limits in Rule 4003(b) only applied to
exemptions filed in good faith and because the debtor had no
good-faith basis for claiming the exemption, the trustee was able
to file his objection outside of the time limit. See id.The Supreme Court rejected this argument. See Taylor, 503 U.S.
at 642. The Court held that the deadline in Rule 4003(b) should be
construed strictly: “By negative implication, the Rule indicates
that creditors may not object after 30 days ‘unless, within such
period, further time is granted by the court.’ ” Id. at 643. Since no
objection was filed within 30 days, the property was exempt by
(continued...)
16 No. 01-2683
2.
Having determined that an objection to the timeliness of
a complaint under Rule 4004(a) is subject to waiver, we
must now decide whether Dr. Kontrick did waive his ob-
jection. In making that determination, we must keep in
mind the Congressional policy of resolving the matter of
dischargeability promptly and of permitting the debtor to
4
(...continued)
the operation of 11 U.S.C. § 522(l). See id. The Court noted that
“despite what respondents repeatedly told him, [the trustee] did
not object to the claimed exemption. If [the trustee] did not know
the value of the potential proceeds of the lawsuit, he could have
sought a hearing on the issue, see Rule 4003(c), or he could have
asked the Bankruptcy Court for an extension of time to object.”
Id. at 644. Thus, the Court concluded that objections filed outside
the time limit were untimely and should not have been consid-
ered by the bankruptcy court. Id. The Court further concluded
that there was no statutory basis for reading a good-faith
exception into § 522(l). See id. at 644-45. The Court did not hold,
however, that the debtor had an unlimited time in which to object
to the trustee’s untimely objection or that Rule 4003(b) was not
subject to the usual equitable doctrines that apply to other
deadlines and statutes of limitations.
While the Court in Taylor did stress the importance of dead-
lines, see Taylor, 503 U.S. at 644, we believe this emphasis sup-
ports our conclusion, rather than undermines it. As the Court
noted, “[d]eadlines may lead to unwelcome results, but they
prompt parties to act and promote finality.” Id. This analysis
applies with equal force to the doctrine of waiver, which requires
parties to put all of their arguments before the appropriate court
at the appropriate time for a full resolution of their claims. Here,
parties are prompted to action and finality is served by our
conclusion that parties may waive any objection to the untimeli-
ness of a creditor’s complaint if the objection is not raised at the
proper time.
No. 01-2683 17
begin his fresh start without lingering doubts about the
finality of the bankruptcy court’s actions.
As a general matter, a statute of limitations defense must
be raised in an answer or responsive pleading. See Fed. R.
Civ. P. 8(c); see also Jackson v. Rockford Housing Auth., 213
F.3d 389, 392-93 (7th Cir. 2000). Federal Rule of Civil
Procedure 8 is incorporated into the Bankruptcy Rules. See
Fed. R. Bankr. P. 7008. Dr. Kontrick filed his voluntary
petition for relief under Chapter 7 on April 4, 1997. On
January 13, 1998, Dr. Ryan filed his original adversary com-
plaint. Later, on May 6, 1998, Dr. Ryan filed an amended
complaint. Dr. Kontrick answered the amended complaint
on June 10, 1998, without raising his Rule 4004(a) untimeli-
ness defense.
Dr. Kontrick argues that he raised the issue in his motion
to strike portions of Dr. Ryan’s motion for summary judg-
ment. Dr. Kontrick’s motion to strike was filed on August 2,
1999. Even assuming, arguendo, that Dr. Kontrick’s motion
to strike was an acceptable vehicle for raising a Rule 4004(a)
objection, we must conclude that Dr. Kontrick waived his
objection to the timeliness of Dr. Ryan’s complaint.
Waiver is the “intentional relinquishment or abandon-
ment of a known right.” United States v. Sumner, 265 F.3d
532, 537 (7th Cir. 2001). A waiver may be explicit or implicit.
A party may waive an argument if it is not raised at the
proper time. See Carr v. O’Leary, 167 F.3d 1124, 1126 (7th Cir.
1999). Generally, statute of limitations defenses must be
raised in an answer or responsive pleading. See Fed. R. Civ.
P. 8(c). With these principles in mind, we turn to an exami-
nation of Dr. Kontrick’s motion to strike portions of the
motion for summary judgment. In that motion, Dr. Kontrick
submitted that “Ryan’s Rule 402 M statement contains an
array of material that is not tied to anything alleged in his
complaint.” R.10-1, Ex.12 at 2. To support this argument, Dr.
18 No. 01-2683
Kontrick then listed the allegations made in Dr. Ryan’s
amended complaint in order to compare them with factual
statements in Dr. Ryan’s 402 M statement. In short, he used
the allegations of the amended complaint as a “baseline” to
establish that the Rule 402 M statement went beyond the
bounds of that complaint. Included within the excerpts from
Dr. Ryan’s amended complaint are his factual allegations
under Count I, the objection to discharge under § 727(a)
(2)(A). From paragraph 56 of Dr. Ryan’s amended com-
plaint, Dr. Kontrick recites: “Removing name from family
bank account.” Id. at 4. At the conclusion of this summary
of Dr. Ryan’s allegations, Dr. Kontrick states: “This is the
extent of the allegations in the complaint. Ryan has not even
attempted to amend his complaint to add additional
allegations.” Id. at 5.
What is clear from Dr. Kontrick’s motion to strike is that
he is relying on Dr. Ryan’s amended complaint, including
the family account claim, to object to additional allegations
made in Dr. Ryan’s 402 M statement. Nowhere does Dr.
Kontrick contest the timeliness of the allegations in the
amended complaint. This failure is sufficient to constitute
waiver of Dr. Kontrick’s objection to the timeliness of the
complaint. Indeed, Dr. Kontrick did not raise the timeliness
issue until after the bankruptcy court entered summary
judgment for Dr. Ryan.
Under these circumstances, we must conclude that Dr.
Kontrick waived the argument that Dr. Ryan’s allegation
that discharge ought to be denied because of Dr. Kontrick’s
handling of his checking account was untimely. This con-
clusion is compatible with the general principles that govern
the application of the waiver defense and is also compatible
with the policies underlying the Bankruptcy Code. Here, the
timeliness issue was not presented to the bankruptcy court
until after it had ruled on the question of whether a dis-
No. 01-2683 19
charge ought to be refused. The policy concerns of expedi-
tious administration of bankruptcy matters and the finality
of the bankruptcy court’s decision hardly are fostered by
requiring the bankruptcy court to consider the timeliness of
an issue that it already has adjudicated.
B.
We must now determine whether the bankruptcy court
properly granted summary judgment to Dr. Ryan and de-
nied Dr. Kontrick his discharge. We review a grant of sum-
mary judgment de novo. See In re Lefkas Gen’l Partners, 112
F.3d 896, 899-900 (7th Cir. 1997). Summary judgment is
appropriate “if the pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party
resisting summary judgment cannot succeed simply by
resting on his pleadings, he must come forth with positive
evidence in support of his position. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). There is no “genuine” issue
of material fact “for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). “When the moving party has carried its burden
under Rule 56(c), its opponents must do more than simply
show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In making this determination,
all reasonable inferences must be drawn in favor of the
nonmovant.
The bankruptcy court granted summary judgment on
Count I of Dr. Ryan’s complaint, which alleged that dis-
20 No. 01-2683
charge should be denied because Dr. Kontrick had violated
11 U.S.C. § 727(a)(2)(A). Section 727(a)(2)(A) provides, in
relevant part, that “[t]he court shall grant the debtor a
discharge unless . . . the debtor, with intent to hinder, delay,
or defraud a creditor . . . has transferred . . . property of the
debtor, within one year before the date of the filing of the
petition.” 11 U.S.C. § 727(a)(2)(A). To prevail, Dr. Ryan must
prove that (1) the debtor, Dr. Kontrick, (2) transferred (3) the
debtor’s property, (4) with the intent to hinder, delay, or
defraud a creditor (5) within one year of bankruptcy. See id.The exception to discharge in § 727(a)(2)(A) essentially
“consists of two components: an act (i.e., a transfer or a
concealment of property) and an improper intent (i.e., a
subjective intent to hinder, delay, or defraud a creditor).”
Rosen v. Bezner, 996 F.2d 1527, 1531 (3d. Cir. 1993). “The
party seeking to bar discharge must prove that both these
components were present during the one year before
bankruptcy; anything occurring before that one year period
is forgiven.” Id. (emphasis in original). In bankruptcy,
“exceptions to discharge are to be construed strictly against
a creditor and liberally in favor of the debtor.” In re Zarzyns-
ki, 771 F.2d 304, 306 (7th Cir. 1985). Even with these princi-
ples in mind, we believe that Dr. Ryan has satisfied the
statute’s prerequisites sufficiently to support the bankruptcy
court’s grant of summary judgment.
Dr. Kontrick does not dispute that he continued to deposit
his paycheck into the family account in the year before
bankruptcy. Instead, he argues that there is a question of
fact about his intent and that there was no act to hinder,
delay or defraud creditors within one year. See Appellee’s
Br. at 13. Dr. Kontrick cites In re Ratner, 132 B.R. 728, 733
(N.D. Ill. 1991), for the proposition that a debtor has no
obligation to maintain a checking account for the benefit of
his creditors. This proposition is true as far as it goes, but
§ 727(a)(2)(A) makes it clear that a debtor may not divest
No. 01-2683 21
himself of property with the intent to hinder, delay or de-
fraud his creditors and still receive a discharge. In Ratner,
the court determined that the bankruptcy court had not
committed error in concluding that the circumstances
surrounding the use of a spouse’s checking account did not
supply sufficient circumstantial evidence to permit the
conclusion that the debtor had attempted to evade payment
to his creditors. Here, however, we have direct evidence of
Dr. Kontrick’s intent.
In his 1993 deposition pursuant to Dr. Ryan’s citation to
discover assets, Dr. Kontrick admitted that he took his name
off the checking account, stating that “[i]t used to be my
personal account. I don’t have that account anymore.” R.16-
1, Ex.7 at 7-8. Moreover, he said that he took this action
because of “the ridiculous maneuvers that you and your
client [Dr. Ryan] have put me through in order to collect
money which you don’t have coming to you.” Id. at 9. Dr.
Kontrick wanted to protect himself from the “thousands and
thousands of thieves out there that are ready to come after
you on any pretense and rob you of whatever belongings
you might have.” Id. at 12. Dr. Kontrick freely admitted that
his divestitures were designed to diminish the amount of
money creditors would be able to obtain from a judgment
against him, including Dr. Ryan with whom Dr. Kontrick
was engaged in a nasty business dispute at the time. “I felt
that to have any sort of assets that could possibly be taken
away from me would be foolish. So I basically divested
myself of everything.” Id. at 29-30.
Intent is normally a question of fact and often not suscep-
tible to summary judgment. Here, however, we have direct
and unrebutted evidence, from Dr. Kontrick’s own words,
of his intent. Dr. Kontrick cannot defeat summary judgment
simply by raising a “metaphysical doubt” about his intent.
See Matsushita, 475 U.S. at 586. Dr. Kontrick has not put forth
any evidence suggesting that his intent with respect to the
22 No. 01-2683
family account changed between his 1993 deposition and his
depositing his paycheck into the family account in the year
before he filed for bankruptcy. There is also nothing in his
circumstances to suggest that his intent was any different in
1997 than it had been in 1993. Dr. Kontrick’s bitter dispute
with Dr. Ryan was ongoing, with Dr. Kontrick owing to Dr.
Ryan a judgment at one point valued at more than $600,000.
The record contains no basis for the conclusion that, al-
though Dr. Kontrick removed his name from the family
account in late 1992 or early 1993 to thwart his creditors, his
deposits in 1996 and 1997 were for a purpose permitted by
the Code.
The bankruptcy court was entitled to conclude that those
deposits were “transfers” of Dr. Kontrick’s property, with
the “intent to hinder, delay, or defraud a creditor” within
one year of filing for bankruptcy. 11 U.S.C. § 727(a)(2)(A).
By depositing his paycheck into an account over which he
had no control, Dr. Kontrick put those assets beyond the
reach of his creditors, just as he had done with the property
that he transferred to his wife and daughter before 1993.
In support of his contention that summary judgment was
inappropriate here, Dr. Kontrick invites our attention to
Rosen v. Bezner, 996 F.2d 1527 (3d Cir. 1993). In Rosen, the
debtor transferred his interest in his principal residence to
his wife on December 28, 1987 for no consideration. See
Rosen, 996 F.2d at 1529. Almost two years later, on Septem-
ber 12, 1989, the debtor filed a chapter 7 bankruptcy peti-
tion. See id. at 1530. The trustee objected, arguing that the
debtor had transferred his property with the actual intent to
hinder, delay or defraud a creditor. See id. The bankruptcy
court granted summary judgment to the trustee and the
district court affirmed. See id. The Third Circuit reversed,
and remanded the case to the bankruptcy court for a factual
determination of the debtor’s intent. See id. at 1533. Unlike
this case, Rosen involved the application of the “continuing
No. 01-2683 23
concealment” doctrine under which “a concealment will be
found to exist during the year before bankruptcy even if the
initial act of concealment took place before this one year
period as long as the debtor allowed the property to remain
concealed into the critical year.” Id. at 1531. That doctrine is
inapplicable when, as here, the transfers took place within
one year of bankruptcy. Finally, unlike the court in Rosen,
we have unrefuted evidence of Dr. Kontrick’s intent in first
arranging his finances as he did and no evidence to suggest
that his intent has changed.
There is no genuine issue of material fact regarding the
applicability section 727(a)(2)(A)’s exception to discharge.
Dr. Kontrick violated section 727(a)(2)(A) by depositing his
paycheck into the family account, over which he had no
control. Dr. Ryan is entitled to judgment as a matter of law
on Count I of his amended complaint.
Conclusion
Dr. Kontrick waived his objection to the timeliness of Dr.
Ryan’s amended complaint. The bankruptcy court properly
granted summary judgment to Dr. Ryan and denied Dr.
Kontrick’s discharge under 11 U.S.C. § 727(a)(2)(A). The
judgment of the district court sustaining that decision is
therefore affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-8-02