In Re Andrew Staffer, Debtor, Andrew Staffer v. Robert Predovich

306 F.3d 967 In re Andrew STAFFER, Debtor, Andrew Staffer, Appellant, v. Robert Predovich, Appellee. No. 01-56093. United States Court of Appeals, Ninth Circuit. Submitted June 6, 2002. * Filed September 27, 2002. John W. Mills III, Feder & Mills, Los Angeles, California, for the appellant-debtor. Thomas H. Casey, Rancho Santa Margarita, California, for the appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Perris, Brandt and Marlar, Bankruptcy Judges, Presiding, BAP No. CC-00-01507-PBMa. Before FERNANDEZ, WARDLAW and W. FLETCHER, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION WILLIAM A. FLETCHER, Circuit Judge: 1 Six years after Andrew Staffer's Chapter 7 bankruptcy proceeding was closed, Robert Predovich moved to reopen, seeking permission to file a complaint asserting a claim under 11 U.S.C. § 523 (a)(3)(B) to determine whether a debt arising out of a Canadian civil fraud judgment against Staffer was nondischargeable. The bankruptcy court denied the motion, citing Bankruptcy Rule 4007(c), which provides that certain complaints to determine nondischargeability must be filed no…

Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

OPINION

Six years after Andrew Staffer’s Chapter 7 bankruptcy proceeding was closed, Robert Predovich moved to reopen, seeking permission to file a complaint asserting a claim under 11 U.S.C. § 523 (a)(3)(B) to determine whether a debt arising out of a Canadian civil fraud judgment against Staffer was nondischargeable. The bankruptcy court denied the motion, citing Bankruptcy Rule 4007(c), which provides that certain complaints to determine non-dischargeability must be filed no later than sixty days after the date set for the meeting of the creditors. The court also held that, even if it was not time-barred by the Rule, the motion to reopen was barred by laches.

The Bankruptcy Appellate Panel (“BAP”) reversed, holding that Rule 4007(b), which provides that a complaint to determine nondischargeability may be filed “at any time,” was the applicable rule. It held that the question of whether the non-dischargeability complaint was barred by laches was not properly addressed at the motion-to-reopen stage and should instead be determined after the case was reopened.

For the reasons…

concurring in part and dissenting in part:

I concur in all but the last paragraph of the majority opinion. I agree that the laches issue was not even properly before the Bankruptcy Court when that court ruled. 1 However, I dissent from the majority’s suggestion that Staffer can eventually assert laches as a defense. See Beaty v. Selinger, 306 F.3d 914, 928 (9th Cir.2002) (Fernandez, J., concurring).

Thus, I respectfully concur in part and dissent in part.

. I also agree that a motion to reopen was not required in this case.