UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
JEFFREY K. WILMINK
KRISTA M. WILMINK
DEBTORS CASE NO. 92-20327
BEVERLY HUMPHREY PLAINTIFFS
VS. ADV. NO. 92-2108
JEFFREY K. WILMINK DEFENDANT
This matter is before the Court on the plaintiffs' Motion to Amend Complaint to Determine Dischargeability of Debt, filed herein on October 22, 1992. The amendment sought is the addition of a count alleging fraud while acting in a fiduciary capacity within the meaning of 11 U.S.C.'523(a)(4). The defendant filed his response to the Motion on October 26, 1992. 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 record in this case reveals that the debtors filed their petition on March 5, 1992. The first meeting of creditors was set for May 11, 1992, and took place on that date. FRBP 4007(c) requires that a complaint to determine dischargeability be filed not later than 60 days following the first date set for the'341 meeting of creditors. The plaintiffs herein timely filed their Complaint on July 9, 1992. Rule 4007(c) also provides that the court may extend the time for filing, but the motion to extend must be made before the time has expired.
There is no evidence that the plaintiffs asked for an extension of time in which to amend their Complaint. They base their Motion to Amend on FRBP 7015 incorporating FRCP 15 which provides in part that after the defendant has served its responsive pleading, a party's pleading may be amended by leave of court, and that "leave shall be freely given when justice so requires". The plaintiffs also cite In re Tester, 56 B.R. 208 (W.D.Va. 1985) in support of their position.
In that case the plaintiff filed a timely complaint objecting to "discharge" pursuant to 11 U.S.C.'523(a)(4). Several months later, the plaintiff filed a motion to amend its complaint to include a count under '523(a)(6). The bankruptcy court denied the motion. The district court, in overturning the bankruptcy court's decision, cited FRBP 4004 concerning grant or denial of discharge, and FRBP 7015. Rule 4004 has requirements similar to those of Rule 4007 in that a complaint objecting to discharge must be filed not later than 60 days following the date set for the first meeting of creditors. In addition, any motion for extension of time to file such complaint must be filed within the 60 day period.
FRBP 9006(b)(3) states that the court may enlarge the time for taking action under Rules 4004 and 4007 (among others), "only to the extent and under the conditions stated in those rules." However, as Judge Bare's opinion in In re Morgan, 41 B.R. 259 (Bkrtcy.M.D.Tenn. 1984), sets out, amendment of a complaint is governed by Rule 7015. This case was very similar to the case at bar except that the complaint objected to discharge pursuant to'724. Since Rule 4004 relating to that section and Rule 4007 relating to '523(c) operate in the same way, the reasoning applies here.
Judge Bare stated:
The issue here is whether a timely-filed complaint objecting to discharge may be amended after the expiration of the deadline for filing such a complaint. Plaintiff is not seeking here to initially file its complaint objecting to discharge after the expiration of the deadline. This case is controlled, therefore, by Bankruptcy Rule 7015 and Fed.R.Civ.P. 15(c), governing the amendment of pleadings, and not by the application of any doctrine of 'excusable neglect' to permit enlargement of time for originally filing a complaint objecting to discharge. Thus, the determination of plaintiff's right to amend is not affected by the change in the new bankruptcy rules eliminating 'excusable neglect' as a basis for enlarging the time for filing a complaint objecting to discharge. Bankruptcy Rule 9006(b); Bankruptcy Rule 4004(b).
At page 261. The opinion goes on to discuss the requirements of FRCP 15(c).
That Rule provides that if the claim asserted in the amended pleading arose out of the "conduct, transaction, or occurrence" set out in the original pleading, the amendment relates back to that pleading. In seeking to amend their Complaint so as to assert a claim pursuant to'523(a)(4), the plaintiffs depend on the same facts, the same "conduct, transaction, or occurrence" as that which forms the basis of their Complaint. The amendment therefore relates back to their Complaint, and satisfies the requirements of Rule 15(c). It is therefore the opinion of this Court that the plaintiffs' Motion to Amend Complaint to Determine Dischargeability of Debt should be sustained. An order in conformity with this opinion will be entered separately.
By the Court -
Thomas W. Bosse, Esq.
Michael L. Baker, Esq.