In Re Daniel R. Bucknum, Dba Bucknum, Levine & Smith, Debtor. Joe W. Moody, Bernice H. Moody v. Daniel R. Bucknum, Dba Bucknum, Levine & Smith

951 F.2d 204 22 Bankr.Ct.Dec. 640 , Bankr. L. Rep. P 74,367 In re Daniel R. BUCKNUM, dba Bucknum, Levine & Smith, Debtor. Joe W. MOODY, Bernice H. Moody, Appellants, v. Daniel R. BUCKNUM, dba Bucknum, Levine & Smith, Appellee. No. 90-55178. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 13, 1990. Decided Dec. 9, 1991. Meredith Bradford, Walnut Creek, Cal., for appellants. R. Gibson Pagter, Jr., Pagter Law Corp., Santa Ana, Cal., for appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel. Before WALLACE, Chief Judge, O'SCANNLAIN and RYMER, Circuit Judges. PER CURIAM: 1 The question before us is whether the Moodys, who are a properly scheduled judicial lienholder in this Chapter 7 bankruptcy proceeding, received notice of the filing deadline for a nondischargeability complaint sufficient to put them at risk for failing to meet that deadline. The Bankruptcy Appellate Panel ("BAP") affirmed the bankruptcy court's dismissal of the Moodys' complaint on grounds that it was not timely filed. See In re Bucknum, 105 B.R. 25 (Bankr. 9th Cir.1989). The Moodys now appeal, and we affirm. 2 * The relevant facts are not in dispute. The Moodys obtained…

The question before us is whether the Moodys, who are a properly scheduled judicial lienholder in this Chapter 7 bankruptcy proceeding, received notice of the filing deadline for a nondischargeability complaint sufficient to put them at risk for failing to meet that deadline. The Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s dismissal of the Moodys’ complaint on grounds that it was not timely filed. See In re Bucknum, 105 B.R. 25 (Bankr. 9th Cir.1989). The Moodys now appeal, and we affirm.

I

The relevant facts are not in dispute. The Moodys obtained a state court judgment for malicious prosecution against Bucknum, who is an attorney, in the amount of $746,802.52. On March 13, 1988, Bucknum voluntarily filed a Chapter 7 petition and properly listed the Moodys as a judgment creditor. Shortly thereafter, in early April 1988, the Moodys and their counsel obtained a copy of the bankruptcy court’s file in order “to ensure that the MOODY’S [sic] debt was properly scheduled, and that their name and address were properly scheduled ..., so that the MOODY’S [sic] could be assured of receiving proper notice of the bankruptcy proceedings.” Declaration of M. Bradford,…

concurring:

I concur wholeheartedly in the court’s judgment and in Parts I, II-A, and II-C of the opinion. However, because neither the bankruptcy court nor the BAP expressly rested its holding on the Moodys’ failure to overcome the presumption of receipt, I believe that we should address the further question — to which the parties have devoted almost complete attention — of whether the Moodys’ actual knowledge of the bankruptcy sufficed to put them at risk for failing to meet the filing deadline. I would answer that question in the affirmative.

I

Even assuming that the Moodys did not receive actual notice, their arguments still must fail. Both this court and the BAP have previously held that a creditor’s actual knowledge of a debtor’s bankruptcy does indeed suffice to put that creditor on notice of the filing deadline for a nondischarge-ability complaint. See, e.g., Price II, 871 F.2d at 99; Ricketts, 80 B.R. at 497; Price I, 79 B.R. at 891-93; Rhodes, 61 B.R. at *208 630; see also In re Alton, 64 B.R. 221, 224 (Bankr.M.D.Fla.1986), aff'd, 837 F.2d 457 (11th Cir.1988) (per curiam); cf. In re Gregory, 705 F.2d 1118, 1123 (9th Cir.1983). We have also rejected the claim that such…

concurring:

I concur in the per curiam opinion. Because Judge O’Scannlain has written on the notice issue, I write separately to underscore that in view of our conclusion that notice was given, it is unnecessary to reach the issue of what happens if notice is not given. Unlike my colleague, I believe there is much to commend a different rule for scheduled creditors, which the Moodys are, and unscheduled creditors, such as the Prices were. Cf. In re Price, 871 F.2d 97, 99 (9th Cir.1989) (“Here the creditor was not notified by the court within the prescribed time because he was not listed by the debtor.”). I would therefore encourage a court faced with the need to resolve the question to consider afresh the difference between scheduled and unscheduled creditors, their expectations about notice, and the statutory scheme applicable to each.