Smith v. Kennedy

I respectfully disagree with the majority’s conclusion that a bankruptcy trastee is prohibited from adjourning a meeting of creditors “until further notice.” Rather, I would hold that the creditors objected in a timely manner in this case. Consequently, I would also reach the merits of whether the Bellwood holdings constitute a “private retirement plan” under California law and I conclude that it decidedly does not.

I

According to Federal Rule of Bankruptcy Procedure 2003(e), a meeting of creditors under 11 U.S.C. § 341 (a) “may be adjourned from time to time by announcement at the meeting of the adjourned date and time without further notice.” Fed. Rule Bkrtcy. Proc.2003(e) (emphasis added). The majority argues that the meeting of creditors was concluded, rather than adjourned on October 27, 1995, because the trustee adjourned the meeting until further notice without specifying a new meeting date.

This contention is not persuasive. In In re Bernard, 40 F.3d 1028 (9th Cir.1994), we stated that a trustee “has broad discretion whether to adjourn or conclude the meeting,” which depends on the degree to which the debtor has furnished satisfactory information relating to the…

Opinion by Judge REINHARDT; Dissent by Judge O’SCANNLAIN

John Douglas Smith (“Smith”) appeals the district court’s affirmance of the bankruptcy court, which denied his effort to exempt from his bankruptcy estate property that he characterized as a “private retirement plan.” His appeal raises two questions, both of which are novel in this Circuit: first, whether the indefinite “continuance” of a Bankruptcy Code § 341(a) “meeting of creditors” tolls the period for filing objections to property claimed as exempt under § 522(i); and second, whether conversion of the case from Chapter 11 to Chapter 7 triggers a new period within which to file objections to property already excluded as exempt during the Chapter 11 proceeding. We answer both questions in the negative.

I. BACKGROUND

The following facts are undisputed. On August 7, 1995, Smith filed a petition for bankruptcy under Chapter 11. On August 23, 1995, Smith timely filed exemptions for various assets, including pursuant to § 522(0 of the Bankruptcy Code, 11 *474 U.S.C. § 522 , his limited partnership interest in Bellwood Limited Partnership (“Bellwood”). The assets in Bellwood consist of three real estate properties that were…