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Time For Filing Dischargeability Complaint

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In re Nwoke; Case No. 07-10324-SSM; March 18th, 2008

This case was before the court on the motion of Tenacity Settlements, LLC (“Tenacity”) for leave to file a complaint to determine the dischargeability of Tenacity’s claim against the debtor to recover a payment made by mistake. Tenacity was not listed as a creditor and not given notice of the bankruptcy case. This complaint to determine dischargeability was filed after the date to file complaints to determine dischargeability. However, “a complaint to determine dischargeability of an unlisted debt under § 523 (a)(3), Bankruptcy Code, may be filed ‘at any time.’” FRBP 4007(b). However, a complaint to determine the dischargeability of a debt for embezzlement or larceny under §523(a)(4) is governed by §523(c) and must be filed no later than 60 days after the first date set for the meeting of creditors. FRBP 4007(c).

Although the court is empowered to extend the time “for cause,” the motion to extend the time must be filed “before the time has expired.” Id. Regardless of the circumstances, the court has no power, after the bar date for filing a complaint has passed, to extend the time to file a complaint to determine dischargeability of a claim alleged to be excepted from discharge under § 523(a)(4).

A complaint to determine the dischargeability under § 523(a)(3), of an unlisted debt is not subject to § 523(c) and may be filed “at any time.” FRBP 4007(b).

Because there is no bar date for filing a complaint to determine dischargeability of an unscheduled debt, a creditor needs no extension of time or leave of court to file such a complaint. However, to the extent the motion seeks leave to file a complaint under §§523(a)(6) or 523(a)(4), it must be denied because the §523(a)(6) exception does not apply to end-of-plan discharges in chapter 13 cases and because the court has no power, after the bar date has passed, to extend the time to file a complaint under § 523(a)(4).

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