Ainsworth v. Corley et al

1The Notice was actually filed with the Court on the
weekend, but under the Local “Drop Box” Rule, it is deemed to
relate back to Friday. 	NM LBR 5005-1.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
GLENN NOLAN CORLEY and
JANIE PHILLIPS CORLEY,
Debtors. 	No. 7-05-16827 SA
GARY AINSWORTH,
Plaintiff,
v. 	Adv. No. 05-1265 S
GLENN CORLEY, et al.,
Defendants.
ORDER DISMISSING ADVERSARY PROCEEDING
This matter came before the Court for hearing on
Debtors’/Defendants’ Motion to Dismiss or Strike Creditors’
Notice of Objection to Dischargeability of Debt and the Adversary
Proceeding, and to Quash Summons and Notice of Pretrial
Conference (doc 6). 	Counsel are listed in the service section
below. 	This is a core proceeding. 	28 U.S.C. § 157(b)(2)(I).
Based on the discussion below, the Court finds that the case
should be dismissed.
On the last day 1 to timely file complaints objecting to
discharge or dischargeability pursuant to Fed.R.Bankr.P. 4007,
Plaintiff filed a Creditor’s Notice of Objection to
Dischargeability of Debt under 11 USC 523 (“Notice”) in Debtor’s
bankruptcy case, 7-05-16827 SA. 	It was not accompanied by the
required filing fee. 	The Clerk’s Office docketed the objection 2
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2Actions, authorized or unauthorized, taken by a Clerk’s
Office cannot validate a defective filing. 	Cf. Themy v. Yu (In
re Themy), 6 F.3d 688, 690 (10 th Cir. 1993)(When the Court
affirmatively misleads a creditor, the court bears responsibility
for correcting the error.) 	In this case, the mistake was already
made and it was not due to the Court.
Page -2-
days later and also opened an adversary proceeding and filed the
Notice as the initiating document 2. 	The Notice is deficient as a
complaint: it fails to identify the defendant or defendants, it
does not contain a caption, it fails to allege jurisdiction,
venue or core/non-core status, and does not demand that the Court
declare the debt nondischargeable. 	It only gives notice that the
creditor objects to the discharge of his debt. 	The Court finds
it not relevant that, later, Creditor filed an amended complaint
that cured defects. 	The amended complaint cannot make the
original Notice timely filed if it were not.
The pleadings indicate that the attorney that filed the
Notice is unfamiliar with bankruptcy law and practice, and was
extremely busy the week before the complaint was due. 	Excusable
neglect is not a ground for extending the deadline for filing
dischargeability complaints. 	See Themy v. Yu (In re Themy), 6
F.3d 688, 689 (10 th Cir. 1993):
Rules 4004(a) and 4007(c) set a strict sixty-day time
limit within which a creditor may dispute the discharge
of the debtor and the dischargeability of debts. 	Rules
4004(b) and 4007(c) provide that this deadline may only
be extended for cause, after a hearing, if a motion is
made before expiration of the sixty days. 	Finally,
Rule 9006(b)(3) provides that a “court may enlarge the
time for taking action under Rules AAA 4004(a) [and]
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Page -3-
4007(c) AAA only to the extent and under the conditions
stated in those rules.” 	Together, these rules prohibit
a court from sua sponte extending the time in which to
file dischargeability complaints.
Therefore, the Court cannot permit a nunc-pro tunc extension of
time for creditor to file the adversary complaint.
In sum, the document filed was inadequate to serve as a
complaint, and there are no grounds for granting an extension of
time in which to file a complaint, and the case should be
dismissed.
IT IS ORDERED that this adversary proceeding is dismissed.
Honorable James S. Starzynski
United States Bankruptcy Judge
Copies to:
Jason Bowles
600 Central SW Ste 111
Albuquerque, NM 87102-3176
William F Davis
PO Box 6
Albuquerque, NM 87103-0006
Case 05-01265-s Doc 16 Filed 06/22/06 Entered 06/22/06 11:29:01 Page 3 of 3