UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON DIVISION

IN RE:

ROBERT G. PLASKETT

LINDA M. PLASKETT CASE NO. 96-21266

DEBTORS

PROVIDIAN NATIONAL BANK PLAINTIFF

VS: OPINION AND ORDER ADV. NO. 96-2054

ROBERT G. PLASKETT

LINDA M. PLASKETT DEFENDANTS

This matter is before the Court upon the motion of the plaintiff, Providian National Bank, to file an amended complaint herein, and the objection to the filing of the amended complaint by the defendants. The sum and substance of the matter is that the amended complaint would assert an additional cause of action against the debtors pursuant to 11 U.S.C. '523(a)(2)(B) whereas the original complaint stated a claim under subsection (A) of that same statute. The original complaint was timely filed and the defendants contend that this amendment cannot be allowed since it should not relate back to the original complaint pursuant to the provisions of Federal Rule of Bankruptcy Procedure 7015 and Federal Rule of Civil Procedure 15(c). Defendants contend that the new false financial statement claim for relief is time barred pursuant to the provisions of 11 U.S.C. '523(c) and Federal Rule of Bankruptcy Procedure 4007(c) which provides a 60 day period for filing such complaints after the first date set for the meeting of creditors in the case.

A review of the case law indicates that the majority of courts have found that such claims are not time barred if they arise from the same transaction or occurrence as the original complaint. In this case, the plaintiff alleges that the loss plaintiff has suffered was caused by the misrepresentations in the financial statement given by the debtors in conjunction with the application for a loan which is recited in their original complaint. It appears that the proof concerning the fraud alleged in the original complaint would require proof of facts which would, in all likelihood, include the income of the debtors during the period in question which is the essential element of alleged misrepresentation contained in the amended complaint. As such, it appears to arise out of the same transaction or occurrence described in the original complaint. In re Morgan, 41 B.R. 259 (Bkrtcy. E.D. Tenn. 1984); In re Fondren, 119 B.R. 101 (Bkrtcy. S.D. Miss. 1990); In re Englander, 92 B.R. 425 (9th Cir. B.A.P. 1988).

For the above stated reasons, it is hereby

ORDERED that the motion to amend the complaint herein be, and the same hereby is, SUSTAINED, and the amended complaint shall be deemed filed upon entry of this Order.

Dated this ______ day of April, 1997.

BY THE COURT

_____________________________

JUDGE

COPIES TO:

Scott T. Rickman, Esq.

Steven L. Schiller, Esq.