In re Tench

(6th Cir. B.A.P. May 11, 2016)

The Bankruptcy Appellate Panel reverses the bankruptcy court’s order allowing the unsecured creditor’s late-filed claim in this Chapter 13 case. The creditor filed its claim eight days after the bar date, and the bankruptcy court allowed the claim based on excusable neglect. The B.A.P. holds that a bankruptcy court does not have authority to extend the deadline in Rule 3002(c) through equitable powers or the doctrine of equitable tolling. Opinion below.

Judge: Humphrey

Attorneys for Creditor: Gingo Palumbo Law Group LLC, Anthony J. Gingo, Michael J. Palumbo

Attorneys for Debtor: Luftman, Heck & Associates, LLP, Matthew L. Alden

2016-05-11 – in re tench

Author: Matt Lindblom

In re Ausmus

(Bankr. W.D. Ky. Aug. 20, 2015)

The bankruptcy court holds that the creditor may not proceed with a damages hearing in state court, as the liability judgment has already been discharged in the bankruptcy. The creditor requests that the court allow her to challenge the dischargeability of the debt, despite the fact that the deadline for filing complaints to determine dischargeability has already passed. The court finds no basis to permit the late challenge. The creditor had notice of the bankruptcy and simply filed to timely file a complaint. Opinion below.

2015-08-20 – in re ausmus

Author: Matt Lindblom

In re Doyne

(6th Cir. B.A.P. Dec. 4, 2014)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s denial of the creditor’s motion to extend the deadline to object to the debtor’s discharge. The court holds that the deadline for discharge objections is not jurisdictional and thus the bankruptcy court did have discretion to extend the deadline. The bankruptcy court did not abuse its discretion in denying the creditor’s request. The court relied on the factors for equitable tolling set forth in In re Maughan: (1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff’s reasonableness in remaining ignorant of the notice requirement. The creditor argued that the extension was warranted because his attorney had been in a car wreck that gave him a severe concussion, causing him to miss weeks of work. The bankruptcy court determined that equitable tolling should not be permitted, and the appellate court affirmed. Opinion below.

2014-12-04 – in re doyne

CPA Warehouse v. Freeland (In re Livemercial Aviation Holding, LLC)

(N.D. Ind. July 21, 2014)

The district court denies the defendant’s motion for leave to appeal the bankruptcy court’s denial of its motion to dismiss the adversary proceeding. The court rules that the order denying the motion to dismiss was not final and appealable, and although the district court had discretion to hear the matter as an interlocutory appeal, it declined to do so because the appeal did not present a contestable question of law. The bankruptcy court applied the correct law (a case regarding equitable tolling). The defendant’s arguments were related to how that correct law was applied to the facts of this particular case, which was not sufficient to meet the standard for a discretionary interlocutory appeal. Opinion below.

2014-07-21 – in re livemercial aviation holding