UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE DIVISION
IN RE:
BALLARD CRUM
MAUDIE CRUM CASE NO. 89-00548
LAWTON RAY ALLEN PLAINTIFF
VS. ADV. NO. 90-0146
BALLARD CRUM, et al. DEFENDANTS
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss of defendants Ballard and Maudie Crum. These defendants contend that the plaintiff's Complaint is time barred. This Court has jurisdiction of this matter pursuant to 28 U.S.C.
'1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).The defendant debtors, Ballard and Maudie Crum, filed their Chapter 7 petition in this Court on November 28, 1989. The time period for the filing of the Complaint in this proceeding was extended by virtue of Agreed Order of the parties, entered by this Court on June 11, 1990. The deadline for a creditor such as the plaintiff herein to have filed his Complaint to Determine Dischargeability of Debt would otherwise have been sixty days after the first meeting of creditors, or January 12, 1990. The plaintiff filed his Complaint on June 11, 1990, but because proper parties had not been named, this Court ordered the clerk to withhold issuance of summons until an amended complaint was filed reflecting the proper parties defendant. This Order was entered on June 12, 1990. The plaintiff filed his Amended Complaint on August 6, 1990.
The defendant debtors have moved for dismissal based on the failure to cause summons to be issued. They cite Louisville and N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253, which holds that the mere filing of a petition without issuance of summons in good faith does not toll the Statute of Limitations unless the failure to issue is due to the negligence or misconduct of the Clerk of the Court.
Bankruptcy Rule 7003, Commencement of Adversary Proceeding, incorporates Fed. R. Civ. P. 3, which states, "A civil action is commenced by filing a complaint with the court." Bankruptcy Rule 7004, Process; Service of Summons; Complaint, incorporates Fed. R. Civ. P. 4(a), (b), (c)(2)(C)(i), (d), (e), and (g)-(j). FRCP 4(j) requires that service of the summons and complaint be made upon the defendant within 120 days of the filing of the complaint.
In In re Kaelin Associates Elec. Const., Inc., 70 B.R. 412 (Bkrtcy E.C. Pa. 1987), a motion to dismiss was brought before the court in a similar situation, and the court stated, "In accordance with Bankr. Rule 7003 (which incorporates Fed. R. Civ. P. 3), an adversary proceeding is commenced by the filing of a complaint. Thus, once the complaint is filed, the limitations period is tolled....Uniformly, courts have rejected defendants' position that service must be made before the statute is tolled. (Cites omitted.) While some decisions require that service of process be made with due diligence in order to toll the statute,..., there is no requirement that service be made within the limitations period itself." At p. 415.
In view of the foregoing, it is the opinion of this Court that the plaintiff timely commenced his action by the filing of his Complaint, and that the defendant debtors' Motion to Dismiss should be, and it hereby is, OVERRULED.
Dated:
By the Court -
_____________________________________
Judge
Copies to:
Bruce Levy, Esq.
Harold Bolling, Esq.
mcrum.opi