Davania v. Costello

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
In re:
Gerald Trey Costello,
Debtor(s).
CHAPTER 7
Case No.: 8:25-bk-11944-SC
Adv. No.: 8:25-ap-01312-SC
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS ACTION FOR
FAILURE TO STATE A CLAIM [DK. 6]
Vacated Hearing:
Catherine Michelle Davania,
Plaintiff(s),
v.
Gerald Trey Costello,
Defendant(s).
Date: January 20, 2026
Time: 1:30 p.m.
Courtroom: 5C
The Court has reviewed Defendant Gerald Trey Costello’s Motion to Dismiss
Action for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to
Federal Rule of Civil Procedure 12(b)(6), as incorporated by Federal Rule of Bankruptcy
Procedure 7012 [Dk. 6] ("Motion"), Plaintiff Catherine Michelle DaVania’s Opposition
thereto [Dk. 8] ("Opposition"), Plaintiff Catherine Michelle DaVania’s Motion for Order
FILED & ENTERED
JAN 21 2026
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	bolte
FOR PUBLICATION
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Deeming Adversary Complaint Timely Filed [Dk. 3] ("Motion to Deem Complaint
Timely"), and Defendant Gerald Trey Costello’s Opposition to the Motion to Deem the
Complaint Timely Filed [Dk. 5] ("Opposition to Motion to Deem Complaint Timely"). The
Court has also reviewed the dockets in this adversary proceeding and in the underlying
bankruptcy case, including the Notices of Electronic Filing and the Clerk’s Notice of
Error issued in connection with Plaintiff’s filings. Based on the pleadings and the record,
the Court finds that this matter is appropriate for disposition without a hearing, and for
the reasons set forth below, GRANTS the Motion and VACATES the January 20, 2026
hearing.
I. General Background and Procedural Posture
Debtor Gerald Trey Costello ("Debtor" or "Defendant") filed a voluntary petition
for relief under Chapter 7 of the Bankruptcy Code on July 16, 2025. Plaintiff Catherine
Michelle DaVania ("Plaintiff") was properly scheduled on Schedule F and received
notice of the bankruptcy filing. The deadline to file a complaint to determine the
dischargeability of a debt under 11 U.S.C. § 523(c) was October 27, 2025.
On October 27, 2025, Plaintiff electronically filed a document on the docket of the
main bankruptcy case using the CM/ECF event code "Third-Party Complaint." The
docket reflects the entry as "Third-Party Complaint by Catherine Michelle DaVania
against Gerald Trey Costello" (Entered: 10/27/2025). When opened, the document itself
is captioned "COMPLAINT FOR NON-DISCHARGEABILITY UNDER 11 U.S.C. §§
523(a)(6) AND 523(a)(2)(A)" and seeks a determination that Plaintiff’s claim is excepted
from discharge.
Notwithstanding the document’s caption and substantive allegations, Plaintiff did
not, on October 27, 2025, commence an adversary proceeding through the Court’s
CM/ECF system, did not pay the adversary filing fee, and no adversary proceeding
number was assigned on that date.
On the morning of October 28, 2025, procedurally, the Clerk issued a Notice to
Filer of Error and/or Deficient Document, stating that the document had been filed in the
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incorrect case and instructing Plaintiff to withdraw the document and re-file it in the
correct case. Later that same day, Plaintiff opened an adversary proceeding, paid the
required filing fee, and re-filed the complaint. The Notice of Electronic Filing reflects that
the adversary complaint was filed on October 28, 2025 at 3:09 p.m.
Plaintiff thereafter filed a Motion for Order Deeming Adversary Complaint Timely
on October 29, 2025 [Dk. 3], relying primarily on Federal Rule of Bankruptcy Procedure
5005(c). That motion was never set for hearing. Defendant filed an Opposition to the
Motion to Deem Complaint Timely on November 14, 2025 [Dk. 5]. On December 1,
2025, Defendant filed the present Motion to Dismiss [Dk. 6], asserting that the
adversary complaint was untimely under Federal Rule of Bankruptcy Procedure 4007(c)
and therefore failed to state a claim upon which relief could be granted. Plaintiff filed an
Opposition to the Motion to Dismiss on December 29, 2025 [Dk. 8].
II. The Parties’ Positions
The parties’ positions in both motions are largely duplicative.
a. Plaintiff’s Motion to Deem Complaint Timely
In the Motion to Deem Complaint Timely, Plaintiff asserted that although the
adversary complaint was not opened under a separate adversary case number until
October 28, 2025, the complaint itself was electronically delivered to the Court on
October 27, 2025, the Rule 4007(c) deadline, when it was filed on the docket of the
main bankruptcy case. Plaintiff characterized the filing error as a ministerial CM/ECF
routing mistake resulting from the selection of an incorrect event code and argued that
Federal Rule of Bankruptcy Procedure 5005(c) authorizes the Court, in the interest of
justice, to deem the complaint filed as of the date it was originally delivered to the Court.
Plaintiff emphasized that the complaint filed on October 28, 2025 in the adversary
proceeding was identical to the document filed in the main case on October 27, 2025,
that the error was promptly corrected after receipt of the Clerk’s Notice of Error, and that
Defendant suffered no prejudice because notice of the filing was received through the
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Court’s electronic noticing system. The Motion to Deem the Complaint Timely was
never set for hearing by Plaintiff.
b. Defendant’s Opposition to the Motion to Deem Complaint Timely
On November 14, 2025, Defendant filed an Opposition to the Motion to Deem
Complaint Timely. In that opposition, Defendant argued that Rule 5005(c) does not
apply where a party fails to comply with the mandatory procedures for commencing an
adversary proceeding and that filing a complaint in the main bankruptcy case does not
constitute commencement of a nondischargeability action under Federal Rule of
Bankruptcy Procedure 4007(c). Defendant further asserted that the Court lacks
authority to retroactively deem an adversary proceeding timely once the Rule 4007(c)
deadline has expired, that Plaintiff’s arguments improperly seek an extension of the
deadline in violation of Federal Rule of Bankruptcy Procedure 9006(b)(3), and that
equitable considerations such as intent, diligence, or lack of prejudice are legally
irrelevant under controlling Ninth Circuit authority.
c. Defendant’s Motion to Dismiss
On December 1, 2025, Defendant filed the present Motion. In the Motion,
Defendant argues that Rule 4007(c) required Plaintiff to file a nondischargeability
complaint no later than October 27, 2025, that Plaintiff failed to commence an adversary
proceeding by that date, and that the Court lacks discretion to excuse the late filing.
Defendant further argues that filing a complaint in the main bankruptcy case does not
satisfy Rule 4007(c), that Rule 5005(c) cannot be used to deem the adversary timely,
and that equitable considerations such as intent, lack of prejudice, and CM/ECF issues
are legally irrelevant. Defendant relies on Federal Rules of Bankruptcy Procedure
4007(c) and 9006(b)(3), as well as controlling case law, including In re Rhodes, 71 B.R.
206 (B.A.P. 9th Cir. 1987), Anwar v. Johnson, 720 F.3d 1183 (9th Cir. 2013), and In re
Chin Kun An, 526 B.R. 24 (Bankr. C.D. Cal. 2015).
///
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d. Plaintiff’s Opposition
Plaintiff filed an Opposition on December 29, 2025. Plaintiff opposes dismissal,
arguing that the complaint was timely delivered to the Court on October 27, 2025,
notwithstanding its placement on the main case docket. Plaintiff characterizes the filing
error as a ministerial CM/ECF routing mistake, emphasizes that the error was promptly
corrected on October 28, 2025 after receipt of the Clerk’s Notice of Error, and contends
that Federal Rule of Bankruptcy Procedure 5005(c) permits the Court, in the interest of
justice, to deem the complaint filed as of its original delivery date. Plaintiff maintains that
she is not seeking an extension of the Rule 4007(c) deadline, but rather a corrective
remedy to conform the docket to the date the complaint was delivered to the Court and
argues that Defendant suffered no prejudice.
III. Legal Standards1
Federal Rule of Bankruptcy Procedure 4007(c) governs the time for filing a
complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(c). The rule
provides that such a complaint must be filed no later than 60 days after the first date set
for the meeting of creditors under 11 U.S.C. § 341(a). The rule further provides that the
Court may extend the deadline for cause, but only if a motion seeking an extension is
filed before the expiration of the deadline.
Federal Rule of Bankruptcy Procedure 9006(b)(3) expressly limits the Court’s
authority to enlarge the time for taking action under Rule 4007(c) "only to the extent and
under the conditions stated" in that rule. As a result, once the Rule 4007(c) deadline has
expired, the Court lacks discretion to permit a late-filed nondischargeability complaint or
to retroactively extend the deadline.
The Ninth Circuit Bankruptcy Appellate Panel and the Ninth Circuit Court of
Appeals have consistently held that the Rule 4007(c) deadline is strict and mandatory
1 Although the Motion is brought under Federal Rule of Civil Procedure 12(b)(6), as incorporated by
Federal Rule of Bankruptcy Procedure 7012, the basis for dismissal is the untimeliness of the adversary
complaint under Rule 4007(c), which is apparent from the pleadings and the docket. Where a complaint is
barred by a filing deadline that is strictly enforced as a matter of law, dismissal under Rule 12(b)(6) is
appropriate.
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as to the timing of commencement of a nondischargeability action. A creditor seeking a
determination of dischargeability under §§ 523(a)(2), (4), or (6) must either file a timely
adversary complaint or file a motion to extend the deadline before it expires. If neither
occurs, the bankruptcy court has no discretion to allow the complaint to proceed. In re
Rhodes, 71 B.R. 206, 207-08 (B.A.P. 9th Cir. 1987).
The Ninth Circuit reaffirmed this principle in Anwar v. Johnson, holding that the
60-day deadline imposed by Rule 4007(c) is "strict" and "without qualification" cannot be
extended unless a motion is filed before the deadline expires. Anwar v. Johnson, 720
F.3d 1183, 1187-88 (9th Cir. 2013). The court further held that equitable considerations,
including excusable neglect, lack of prejudice to the debtor, or difficulties with electronic
filing, are legally irrelevant and cannot authorize relief from an untimely filing. Id. at
1188.
Consistent with this authority, courts within the Central District of California have
persuasively held that where an adversary proceeding is not timely commenced through
the court’s CM/ECF procedures, a nondischargeability action is untimely. Filing a
complaint in the main bankruptcy case, without opening an adversary proceeding by the
Rule 4007(c) deadline, does not satisfy the rule and renders the complaint untimely. In
re Chin Kun An, 526 B.R. 24, 28-31 (Bankr. C.D. Cal. 2015).
Because the Rule 4007(c) deadline is not subject to post-expiration enlargement,
a complaint that it not timely commenced as required fails. Where the untimeliness of
the complaint appears on the face of the pleadings and the docket, dismissal under
Federal Rule of Civil Procedure 12(b)(6), as incorporated by Federal Rule of Bankruptcy
Procedure 7012, is appropriate.2
IV. Discussion
a. Failure to Commence an Adversary Proceeding by the Deadline
The Ninth Circuit Bankruptcy Appellate Panel has held that a creditor seeking a
determination of dischargeability under §§ 523(a)(2), (4), or (6) must either file the
2 Fed. R. Bankr. P. ("FRBP") 7012(b) incorporates FRCP 12(b) and applies it to adversary proceedings.
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complaint within the Rule 4007(c) deadline or move for an extension before the deadline
expires, and that a bankruptcy court has no discretion to allow a complaint filed after the
deadline. In re Rhodes, 71 B.R. 206, 207-08 (B.A.P. 9th Cir. 1987). The Ninth Circuit
reaffirmed the strict nature of Rule 4007(c) in Anwar v. Johnson, holding that the 60-day
deadline is "strict" and "without qualification" cannot be extended unless a motion is filed
before the deadline expires. Anwar v. Johnson, 720 F.3d 1183, 1187-88 (9th Cir. 2013).
The Anwar court further held that the reason for missing the deadline, lack of prejudice
to the debtor, and difficulties with electronic filing are immaterial. Id. at 1188.
Here, it is undisputed that the Rule 4007(c) deadline expired on October 27,
2025 and that Plaintiff did not open an adversary proceeding until October 28, 2025.
The question, therefore, is whether Plaintiff’s October 27, 2025 main-case filing
constituted the timely "fil[ing]" of "a complaint to determine dischargeability" within the
meaning of Rule 4007(c), notwithstanding that the adversary proceeding itself was not
opened and the complaint was not filed as an adversary until October 28, 2025. The
Court therefore must determine whether a complaint electronically filed in the main case
but not processed through the adversary-opening procedures prescribed by the Court’s
CM/ECF system, constitutes a timely commencement of a nondischargeability action
under Rule 4007(c).
b. Filing in the Main Case Does Not Commence an Adversary
Proceeding3
Plaintiff’s central contention is straightforward: because Rule 4007(c) states that
a complaint "shall be filed" by the deadline, the filing of the identical complaint on the
main bankruptcy docket on October 27, 2025 should be treated as compliance with the
rule, even though the adversary proceeding was not opened until October 28, 2025.
The difficulty with that position is that controlling Ninth Circuit authority describes what it
3 At least one court in the Central District has taken a different approach under similar factual
circumstances. See In re Bey, 2014 WL 4071042 (Bankr. C.D. Cal. Aug. 14, 2014) (denying dismissal
where a pleading captioned as a nondischargeability complaint was timely filed on the main bankruptcy
case docket, but the adversary proceeding was not formally opened until after the Rule 4007(c) deadline).
Bey did not cite Anwar v. Johnson, 720 F.3d 1183 (9th Cir. 2013) and is not binding on this Court.
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means to "file" a nondischargeability complaint in a mandatory electronic filing system,
and that description requires completion of the process by which nondischargeability
complaints are required to be filed and processed under the Court’s CM/ECF system.4
In Anwar v. Johnson, the Ninth Circuit addressed timeliness under Rule 4007(c)
in the context of a mandatory electronic filing system. Anwar reiterates that Rule
4007(c) is "strict" and "without qualification" cannot be extended unless a motion is filed
before the deadline expires. Anwar v. Johnson, 720 F.3d 1183, 1187-88 (9th Cir. 2013).
Although Anwar arose in the context of a complete failure to file a nondischargeability
complaint before the deadline, the Ninth Circuit’s discussion of the electronic filing
process informs what it means to “file” such a complaint in a mandatory CM/ECF
system.
Specifically, Anwar explains that "[a] creditor seeking to electronically file a
nondischargeability complaint must complete two steps: First, the creditor must open an
‘adversary proceeding’ in the bankruptcy court’s electronic filing system. Second, the
creditor must electronically file a nondischargeability complaint." Id. at 1185. Anwar also
states that "the deadline for all electronic filings is midnight local time on the day set by
the relevant order of the bankruptcy court." Id. (citing Rule 9006(a)(4)(A)). On that
framework, the Ninth Circuit affirmed dismissal where counsel did not successfully
complete the electronic filing process by the midnight deadline, emphasizing that the
shortness of the delay and the reason for it were immaterial. Id. at 1186-88.
The Court’s own published guidance is consistent with this understanding. The
Court’s Central Guide describes the steps required to open an adversary proceeding
through CM/ECF (including selecting "Open AP Case," identifying parties, selecting the
nature of suit, attaching the complaint and adversary cover sheet, and completing fee
payment), and the Court’s CM/ECF Manual explains that once an adversary proceeding
is properly commenced, the Court’s automated process issues the Summons and
4 Although Anwar arose in a different district, its description of the required CM/ECF steps to electronically
file a nondischargeability complaint, opening an adversary proceeding and then filing the complaint in that
adversary, applies equally in this District’s mandatory electronic filing system.
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Notice of Status Conference via Notice of Electronic Filing. These procedures
underscore that a nondischargeability complaint is not "filed" and processed as such
merely by placing the document on the main-case docket under an incorrect event
code; the required adversary-opening procedures is the mechanism that triggers the
summons process and related notices.
That reasoning addresses the precise conceptual question raised here: whether
a paper can be treated as "filed" for Rule 4007(c) purposes when it has been
transmitted through CM/ECF in a manner that does not complete the required steps to
file a nondischargeability complaint as such. Under Anwar’s description, the act of
"electronically fil[ing] a nondischargeability complaint" is not accomplished by placing
the document somewhere on the bankruptcy docket under an incorrect event or in an
incorrect procedural vehicle; it is accomplished only when the filer completes the
system’s two required steps, opening the adversary proceeding and then filing the
complaint, before the applicable deadline. Id. at 1185.
In re Chin Kun An, a decision from this District addressing a materially similar
CM/ECF scenario, reinforces the same principle. There, the creditor filed a pleading on
the main case docket by the deadline but did not successfully open an adversary
proceeding until the following day. In re Chin Kun An, 526 B.R. 24, 27-31 (Bankr. C.D.
Cal. 2015). The court rejected the argument, on the record before it, that a main-case
filing satisfied the Rule 4007(c), explaining that the operative requirement was the timely
commencement of the nondischargeability action in the proper procedural posture; the
record showed "no filing fee was paid, no adversary number was assigned and no
adversary docket was created until the following day," and the creditor therefore "did not
commence an adversary proceeding by the required deadline." Id. at 27-31. The court
further explained that, in a mandatory electronic filing system, the creditor must
complete the steps that actually open the adversary proceeding and file the complaint in
that adversary, and it treated completion of those steps after the deadline as untimely.
Id. at 28-31.
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The record here tracks that same sequence. On October 27, 2025, Plaintiff filed
a document titled "Third-Party Complaint" on the main case docket. On that date,
Plaintiff did not open an adversary proceeding, did not pay the adversary filing fee, and
no adversary case number was assigned. The Clerk’s Notice of Error the next morning
stated that the document had been filed in the incorrect case and instructed Plaintiff to
withdraw and re-file in the correct case. Plaintiff then opened the adversary proceeding,
paid the fee, and re-filed the complaint; the Notice of Electronic Filing reflects the
adversary complaint was filed at 3:09 p.m. on October 28, 2025. Under Anwar’s two-
step description of what it means to "electronically file a nondischargeability complaint,"
and under Chin Kun An’s application of that concept to a mis-docketed main-case filing,
Plaintiff’s nondischargeability complaint was not "filed" within the meaning of Rule
4007(c) until the adversary proceeding was opened and the complaint was filed as an
adversary on October 28, 2025, one day after the October 27, 2025 deadline.
For these reasons, Plaintiff’s October 27, 2025 main-case filing does not satisfy
Rule 4007(c)’s requirement that a complaint "shall be filed" by the deadline, because
under Anwar and Chin Kun An the nondischargeability complaint is "filed" for Rule
4007(c) purposes when the filer completes the electronic filing steps that open the
adversary proceeding and file the complaint as such, which did not occur until October
28, 2025.
This strict construction of Rule 4007(c) also serves important structural and
procedural purposes. The requirement that a nondischargeability action be commenced
by the timely opening of an adversary proceeding ensures that the filing of such a
complaint triggers the issuance of a summons, establishes a clear response deadline,
and provides formal notice to the debtor within a court-supervised procedural
framework. Permitting a creditor to satisfy Rule 4007(c) by filing a complaint on the main
bankruptcy docket, without opening an adversary proceeding, would undermine the
bright-line nature of the rule and create the risk that a creditor could unilaterally control
the timing of summons issuance and service. The Bankruptcy Rules are designed to
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avoid such uncertainty by requiring strict compliance with the procedures for
commencing an adversary proceeding, thereby promoting predictability, uniformity, and
fairness in the administration of dischargeability deadlines.
c. Rule 5005(c) Does Not Permit Relief
Federal Rule of Bankruptcy Procedure 5005(c) addresses the situation where a
paper intended to be filed with the clerk is erroneously delivered to one of the specified
recipients (e.g., the United States trustee, the trustee, the trustee’s attorney, or a judge),
and permits the Court, "in the interests of justice," to deem the "original receipt date"
shown on such a paper as the date it was filed with the clerk. FRBP 5005(c)(1), (3). It
does not address mis-designation of an event code within CM/ECF, and does not
override Rules 4007(c) and 9006(b)(3) as construed in Anwar. Even assuming Rule
5005(c) could be analogized to an electronic mis-docketing or CM/ECF routing error, it
does not provide a basis, consistent with Rules 4007(c) and 9006(b)(3) as construed in
Anwar, to deem timely a nondischargeability complaint where the required adversary-
opening and adversary-filing steps were not completed by the Rule 4007(c) deadline.
Plaintiff’s reliance on Federal Rule of Bankruptcy Procedure 5005(c) does not
alter the result.5 Although Plaintiff characterizes the issue as a ministerial CM/ECF
routing mistake and requests a "corrective" deeming remedy rather than an "extension,"
5 Rule 5005(c) provides as follows:
(c) When a Paper Is Erroneously Filed or Delivered.
(1) Paper Intended for the Clerk. If a paper intended to be filed with the clerk is erroneously delivered to a
person listed below, that person must note on it the date of receipt and promptly send it to the clerk:
• the United States trustee;
• the trustee;
• the trustee's attorney;
• a bankruptcy judge;
• a district judge;
• the clerk of the bankruptcy appellate panel; or
• the clerk of the district court.
(2) Paper Intended for the United States Trustee. If a paper intended for the United States trustee is
erroneously delivered to the clerk or to another person listed in (1), the clerk or that person must note on
it the date of receipt and promptly send it to the United States trustee.
(3) Applicable Filing Date. In the interests of justice, the court may order that the original receipt date
shown on a paper erroneously delivered under (1) or (2) be deemed the date it was filed with the clerk or
sent to the United States trustee.
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the effect of the requested relief would be to treat as timely an adversary proceeding
that was not commenced by the Rule 4007(c) deadline. Under controlling Ninth Circuit
authority, the Court lacks discretion to grant that kind of post-deadline relief. Anwar v.
Johnson, 720 F.3d at 1187-88; In re Rhodes, 71 B.R. at 207-08.
In re Chin Kun An, as noted above, is particularly instructive on this point
because it involved precisely the kind of argument raised here, i.e., that a complaint was
"filed" on the deadline but was misfiled or not properly opened as an adversary until the
next day, and that the defect should be excused based on the filing circumstances and
subsequent correction. In re Chin Kun An, 526 B.R. at 28-31. There, the court
emphasized that the relevant deadline was for the creditor to commence an adversary
proceeding by the deadline, and it rejected the contention that the court could treat the
action as timely where the adversary proceeding was not opened until the next day. Id.
at 29-31. The court’s reasoning applies with equal force here: the deadline required
timely commencement of an adversary proceeding, and that did not occur. Id. at 30-31.
The post-deadline Clerk notice likewise does not supply a basis to deem the
adversary timely. Here, the Clerk issued the Notice of Error on the morning of October
28, 2025, after the October 27, 2025 deadline had expired, and instructed Plaintiff to
withdraw and refile in the correct case. Plaintiff did so promptly, but the adversary
proceeding nonetheless was opened one day late. In Chin Kun An, the court rejected
reliance on the filing circumstances to excuse a failure to timely commence the
adversary proceeding. In re Chin Kun An, 526 B.R. at 29-31.
Accordingly, Rule 5005(c) does not provide a mechanism to treat the adversary
complaint as timely when the adversary proceeding itself was not opened until October
28, 2025, after the Rule 4007(c) deadline of October 27, 2025.
///
///
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d. Equitable Considerations Are Irrelevant
Plaintiff’s remaining points, timely delivery to the Court through CM/ECF on
October 27, 2025, prompt correction on October 28, 2025 after the Clerk’s Notice of
Error, the asserted ministerial nature of the error, and the asserted absence of
prejudice, do not change the analysis. Ninth Circuit authority makes clear that the Rule
4007(c) deadline is strictly enforced and is not subject to post-deadline enlargement
based or equitable tolling based on considerations such as intent, notice, or lack of
prejudice. Anwar v. Johnson, 720 F.3d at 1188; In re Rhodes, 71 B.R. at 207-08. Under
those authorities, the reason for missing the deadline and the lack of prejudice are
immaterial. Anwar, 720 F.3d at 1188.
V. Conclusion
For the foregoing reasons, the Motion is GRANTED.
IT IS SO ORDERED.
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Date: January 21, 2026
Case 8:25-ap-01312-SC Doc 9 Filed 01/21/26 Entered 01/21/26 10:59:37 Desc
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