Valley Bank, N.A. v. Sears (In re Sears) (Case No. 03-03328; A.P. No. 05-07080) 08/29/2005
The Debtor converted her bankruptcy to Chapter 13 and then reconverted back to Chapter 7. A creditor filed a Complaint to determine dischargeability of debt and deny the Debtor's discharge, and the Debtor filed a Motion to Dismiss the Complaint as untimely filed. The issue presented is whether the creditor filed the Complaint within the prescribed time period allowed under the Federal Rules of Bankruptcy Procedure. Rule 4007(b) provides that "[a] complaint other than under § 523(c) may be filed at any time." The Court determined that the creditor's Complaint arises under 11 U.S.C. § 523(c), and is therefore governed by Rule 4007(c), not Rule 4007(b). Rule 4007(c) provides that a "complaint to determine the dischargeability 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). . . ." Rule 1019(2) provides that when a Chapter 13 case has been converted or reconverted to a Chapter 7 case, "a new time period for filing . . . a complaint to obtain a determination of dischargeability of any debt shall commence pursuant to Rule[] . . . 4007, provided that a new time period shall not commence if a chapter 7 case had been converted to a chapter . . . 13 case and thereafter reconverted to a chapter 7 case and the time for filing . . . a complaint to obtain a determination of the dischargeability of any debt, or any extension thereof, expired in the original chapter 7 case."
The Court determined that since the time for filing a complaint in the Debtor's original Chapter 7 filing had expired many months before the conversion to Chapter 13, Rule 1019(2) does not provide a new time period for the creditor to file a Complaint. Accordingly, the Court sustained the Debtor's Motion to Dismiss the Complaint as untimely.