IN RE:  CHARLES V. COLLINS CASE NO. 90-51956

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

IN RE:

CHARLES V. COLLINS CASE NO. 90-51956

DEBTOR

JAMES D. LYON, TRUSTEE PLAINTIFF

VS. ADVERSARY NO. 95-5059

CHARLES V. COLLINS DEFENDANT

ORDER

This matter is submitted on the motion of the chapter 7 trustee, James D. Lyon, the plaintiff, herein, for summary judgment sustaining his complaint to revoke the discharge of the debtor. The court finds the motion should be overruled and the complaint of the trustee should be and hereby is dismissed.

The debtor filed a petition for relief under chapter 7 of the Bankruptcy Code in this court on October 2, 1990. He was granted a discharge in bankruptcy on April 8, 1991. The trustee filed a report of no distribution in the case on July 31, 1991, and the case as closed on November 12, 1991.

On September 22, 1994, the plaintiff, who had served as trustee in the debtor's chapter 7 case, moved to reopen the case on the ground he had discovered assets which were not disclosed in the schedules to the petition. The motion was noticed for hearing on October 31, 1994. At the hearing the court questioned the standing of Mr. Lyon as former trustee to move to reopen the case. However, at the hearing, a creditor, Mildred Rossoll appeared by counsel and joined in the motion. The U.S. Trustee also joined in the motion. The court sustained the motion and reopened the case. Mr. Lyon was reappointed as trustee.

After discovery conducted between November of 1994 and March of 1995 the trustee filed the complaint to revoke the debtor's discharge pursuant to 11 U.S.C. 727(d). The complaint was filed July 24, 1995, more than four years after the debtor received his discharge in bankruptcy and nearly four years after the debtor's case was closed.

Title 11 U.S.C. 727(d) and (e) provide:

727. Discharge.

 

. . .

 

(d) On request of the trustee, a creditor, or the United States trustee, and after notice and a hearing, the court shall revoke a discharge granted under subsection (a) of this section if --

 

(1) such discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge;

 

(2) the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee; or

 

(3) the debtor committed an act specified in subsection (a)(6) of this section.

 

 

 

 

 

(e) The trustee, a creditor, or the United States trustee may request a revocation of a discharge --

 

(1) under subsection (d)(1) of this section within one year after such discharge is granted; or

 

(2) under subsection (d)(2) or (d)(3) of this section before the later of --

 

(A) one year after the granting of such discharge; and

 

(B) the date the case is closed.

 

The reopening of a case does not extend the time for filing a complaint to revoke the debtor's discharge. Rule 9024 Federal Rules of Bankruptcy Procedure. In re Pankey, 145 B.R. 244 (W.D. Tenn. 1992); In re Brassard, 162 B.R. 375, 379 (Bankr. D. Me. 1994); In re Coulton, 161 B.R. 76 (Bankr. M.D. Fla. 1993).

The language of section 727(d) and (e) by which Congress has fixed the limitation period for filing complaints to revoke the discharge of a debtor on the ground the discharge was obtained by fraud or on the ground the debtor knowingly and fraudulently failed to report the acquisition of or entitlement to property, and Rule 9024 of the Federal Rules of Bankruptcy Procedure, may preclude application of the doctrine of equitable tolling to extend the

 

limitation period based on fraudulent concealment.

 

Dated:

By the court -

 

______________________________

JOE LEE, CHIEF JUDGE

 

Copies to:

 

James D. Lyon, Esq.

Richard J. Getty, Esq.

Tracey Wise, Esq.

David Holladay, Esq.

U.S. Trustee

Charles V. Collins