MEMORANDUM OPINION

ROBERT H. JACOBVITZ, Bankruptcy Judge.

Plaintiff New Mexico Department of Workforce Solutions ("NMDWFS") filed this adversary proceeding seeking a determination of non-dischargeability of debt under 11 U.S.C. § 523 following Defendant Margaret L. Martinez's rescission of a Reaffirmation Agreement between the NMDWFS and Ms. Martinez reaffirming a debt in the amount of $8,993.00. The reaffirmed debt represents unemployment benefits that NMDWFS asserts Ms. Martinez fraudulently obtained. Ms. Martinez filed a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., asserting that NMDWFS's complaint to determine non-dischargeability of debt is untimely, and that the reaffirmation agreement between NMDWFS and Ms. Martinez is unenforceable. See Defendant's Motion to Dismiss Plaintiff's Complaint to Determine Dischargeability of Debt Pursuant to Fed. R. Civ.P. 12(b)(6) ("Motion to Dismiss") — Docket No. 5. NMDWFS opposes the Motion to Dismiss, asserting that the doctrine of equitable tolling applies.

The Court heard oral argument on the Motion to Dismiss on July 18, 2012 and took the matter under advisement. After considering the arguments of counsel, and being otherwise sufficiently informed, the Court finds that the Motion to Dismiss should be granted. Even if the Court were to accept for purposes of argument that the doctrine of equitable tolling extended the period for NMDWFS to file its non-dischargeability complaint, NMDWFS did not file its complaint within the reasonable tolled period of time.

In considering a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., made applicable to adversary proceedings by Rule 7012, Fed.R.Bankr.P., the Court must accept as true all well-pleaded facts alleged in the complaint and construe those facts in the light most favorable to the party opposing dismissal. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). New Mexico Department of Workforce Solutions' Complaint to Determine Dischargeability of Debt ("Complaint") includes the following allegations relevant to the Court's determination of the Motion to Dismiss:

NMDWFS filed its Complaint in this adversary proceeding on April 27, 2012. See Docket No. 1. NMDWFS's Complaint includes an allegation that the NMDWFS acted in a prompt and timely manner in addressing the Defendant's notice of rescission of the reaffirmation agreement. See Complaint, ¶ 12. However, whether NMDWFS acted in a prompt and timely manner for purposes of applying equitable tolling presents a mixed question of fact and law; a legal conclusion is made based on the underlying facts and circumstances. See In re Bender, 385 B.R. 800, *2 (9th Cir. BAP Nov. 21, 2007)(Table)(stating that "[e]quitable tolling presents a mixed question of law and fact.")2 The Court discounts "legal conclusions clothed in factual garb" for purposes of ruling on a motion to dismiss. Tronox Inc. v. Anadarko Petroleum Corp. (In re Tronox Inc.), 429 B.R. 73, 90 (Bankr.S.D.N.Y. 2010)(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). See also, Ashcroft v. Iqbal, 556 U.S. at 678 (in evaluating a motion to dismiss "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").

A. The Reaffirmation Agreement is Enforceable, Absent Rescission

Pursuant to 11 U.S.C. § 524(c), a debtor may enter into an agreement with a creditor to reaffirm a debt that would otherwise be dischargeable. See 11 U.S.C. § 524(c). The effect of reaffirming a debt is to except the debt from discharge. See Jamo v. Katahdin Federal Credit Union (In re Jamo), 283 F.3d 392, 398 (1st Cir. 2002)(explaining that "reaffirmation represents the only vehicle [other than a successful non-dischargeability suit] through which an otherwise dischargeable debt can survive the successful completion of Chapter 7 proceedings . . . . once a debt is reaffirmed, the creditor can proceed to enforce its rights as if bankruptcy had not intervened."); In re Reed, 403 B.R. 102, 104 (Bankr.N.D.Okla. 2009)(stating that "[d]ebt that would otherwise be trapped within the snare of the bankruptcy discharge, if reaffirmed, remains the debtor's personal liability and burden."). For debtors who are represented by counsel, the requirements for entering into an enforceable reaffirmation agreement are:

Court approval is not a condition to enforceability of the agreement. In re Perez, 2010 WL 2737187, *4 (Bankr.D.N.M. July 12, 2010). In Perez, this Court found that the requirements of 11 U.S.C. § 524(c)(3) are not satisfied if counsel fails to make all three certifications. Id.

Ms. Martinez asserts that the reaffirmation agreement was unenforceable under this Court's Perez decision because her counsel crossed out one of the certifications on the agreement. This Court disagrees. Counsel crossed out the certification on the Reaffirmation Agreement stating that "this agreement does not impose an undue hardship on the debtor or any dependent of the debtor." See Reaffirmation Agreement, p.6 — Case No. 7-11-15027 — Docket No. 11. However, counsel for Ms. Martinez also checked the box on the Reaffirmation Agreement stating that "[a] presumption of undue hardship has been established with respect to this agreement. In my opinion, however, the debtor is able to make the required payment." Id. By checking the box on Part C stating that a presumption of undue hardship has been established, but in the opinion of counsel, the debtor is nevertheless able to make the payments, counsel has effectively made the undue hardship certification. See Perez, 2010 WL 2737187 at *4 n.6. Thus, the Reaffirmation Agreement between NMDWFS and Ms. Martinez was enforceable at the time the parties entered into the agreement.

An enforceable reaffirmation agreement can function as an acceptable alternative to filing a complaint objecting to dischargeability of debt because it can accomplish the same result: a debt that is reaffirmed is excepted from discharge.3 However, by entering into a reaffirmation agreement with Ms. Martinez instead of either 1) timely filing an adversary proceeding seeking a determination of non-dischargeability; or 2) obtaining entry of an order extending the time to file a complaint4; NMDWFS took a risk that Ms. Martinez could rescind the agreement. A debtor who enters into a reaffirmation agreement can rescind (cancel) the agreement "at any time before the bankruptcy court enters a discharge order, or before the expiration of the 60-day period that begins on the date [the debtor's] reaffirmation agreement is filed with the court, whichever occurs later." 11 U.S.C. § 524(k)3)(J)(i). The Complaint recites that Ms. Martinez rescinded the Reaffirmation Agreement on April 4, 2012, which is within sixty days of the date the Reaffirmation Agreement was filed with the Court. See Case No. 7-11-15027 JA — Docket No. 11. By rescinding the Reaffirmation Agreement, Ms. Martinez rendered the agreement unenforceable.

A complaint objecting to the dischargeability of a particular debt under 11 U.S.C. § 523(c)5 in connection with a Chapter 7 bankruptcy case must be filed "no later than 60 days after the first date set for the meeting of creditors under § 341(a)." Rule 4007(c), Fed.R.Bankr.P. This limitation period may be extended, for cause, on a motion of a party in interest filed before the expiration of the deadline. Id. NMDWFS filed its Complaint after the sixty-day deadline for filing a complaint objecting to the dischargeability of its debt. NMDWFS did not seek an extension of the deadline prior to the expiration of the time period set forth in Rule 4007(c), but asserts that it should be allowed to pursue this non-dischargeability action under the doctrine of equitable tolling. Equitable tolling can apply to the deadline set forth in Rule 4007(c), Fed.R.Bankr.P.6 Equitable tolling applies because the time limit for objecting to dischargeability of a debt is not jurisdictional. McNaughton v. Maytorena (In re Maytorena), 2011 WL 5509194, * 6 (Bankr.D.N.M. Nov. 4, 2011).7

Generally, in order to establish that equitable tolling applies, a plaintiff must establish8 that the defendant's conduct rose to the level of "active deception," that the plaintiff was "lulled into inaction" by a defendant, or that the plaintiff has been "actively misled" by the defendant or "has in some extraordinary way been prevented from asserting his or her rights." Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1267 (10th Cir. 1996)(citations and internal quotation marks omitted).9 Equitable tolling should be applied sparingly. See United States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001)(per curiam)(stating that "`[f]ederal courts have typically extended equitable relief only sparingly.'")(quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435(1990)). Because proceedings objecting to discharge or to dischargeability affect a debtor's primary goal of obtaining a fresh start through bankruptcy, the Court is especially cautious in applying the doctrine of equitable tolling to the limitations period under Rule 4007(c), Fed.R.Bankr.P. See In re Kontrick, 295 F.3d 724, 733 (7th Cir. 2002), aff'd, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)(observing that these equitable defenses "must be applied in a manner consistent with the manifest goals of Congress to resolve the matter of dischargeability promptly and definitively in order to ensure that the debtor receives a fresh start unobstructed by lingering doubts about the finality of the bankruptcy decree.").

"The rationale behind the doctrine of equitable tolling is that a statute of limitations should not start running until the plaintiff is aware [he or] she may have a cause of action." Higgins v. Erickson (In re Higgins), 270 B.R. 147, 158 (Bankr.S.D.N.Y. 2001)(citing Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2nd Cir. 1985)). NMDWFS's letter to Defendant stated that NMDWFS would file a complaint objecting to the dischargeability of debt if Defendant did not enter into a reaffirmation agreement. NMDWFS was, therefore, aware that it had a potential cause of action for non-dischargeability of debt. However, when Ms. Martinez entered into the Reaffirmation Agreement, NMDWFS believed it had secured an agreement that the debt would not be discharged in Ms. Martinez's bankruptcy case, and therefore, there was no need to file a non-dischargeability complaint. Even if the Court presumes that Ms. Martinez's actions lulled NMDWFS into inaction such that equitable tolling could apply, the remaining question is how long the period should be tolled. When equitable tolling is applied to a statute of limitations, the running of the limitations period is tolled "`so long as the plaintiff uses reasonable care and diligence in attempting to learn the facts that would disclose the defendant's fraud or other misconduct.'" Otte, 2004 WL 2187175 at *2 (quoting 4 Wright & Miller, Fed. Prac. & Proc.: Civil 3d §1056 at 255 (West 2002)).10

Here, the alleged "misconduct" is Ms. Martinez's rescission of the Reaffirmation Agreement after the expiration of the deadline for filing a complaint objecting to dischargeability. What is an appropriate tolling period following the rescission date? The Reaffirmation Agreement reflects that Ms. Martinez and her counsel signed the agreement on February 10, 2012 and a representative for NMDWFS signed the agreement on February 15, 2012. See Reaffirmation Agreement, Case No. 7-11-14027 JA — Docket No. 11. The Reaffirmation Agreement was filed of record in Ms. Martinez's bankruptcy case on February 15, 2012. Had Ms. Martinez not entered into the Reaffirmation Agreement, the Complaint alleges that NMDWFS would have filed a complaint contesting the dischargeability of the debt. The deadline for timely filing a complaint objecting to the dischargeability of debt in Ms. Martinez's bankruptcy case was February 17, 2012. In light of the dates that each party signed the Reaffirmation Agreement and the dischargeability deadline, the Court finds, as a matter of law, that the maximum tolled time period is seven days.11 Ms. Martinez rescinded the Reaffirmation Agreement on April 4, 2012. The equitably tolled time period for NMDWFS to file its Complaint expired seven days thereafter, on April 11, 2012. NMDWFS filed its Complaint on April 27, 2012. Thus, even if the Court accepts as true the factual allegations that could support application of equitable tolling, NMDWFS's Complaint is untimely.

The Reaffirmation Agreement was filed in Ms. Martinez's bankruptcy case just two days before the expiration of the period for filing a complaint objecting to the dischargeability of a particular debt. Had Ms. Martinez refused to enter into the Reaffirmation Agreement, NMDWFS stated that it would have filed its Complaint. That Ms. Martinez willingly entered into a Reaffirmation Agreement on favorable terms and then rescinded the agreement only after the expiration of the period for filing a dischargeability complaint seems a bit disingenuous. But NMDWFS chose to pursue its non-dischargeabilty claim, not by filing an adversary proceeding, but by requesting the Defendant to enter into an agreement to reaffirm the debt. NMDWFS ran the risk that Ms. Martinez might rescind the agreement; it did not obtain a stipulation from Ms. Martinez extending time to file a dischargeability complaint. Equitable "[t]olling is inappropriate when a claimant has voluntarily chosen not to protect its rights." In re Williams, 333 B.R. 68, 75 (Bankr.D.Md. 2005). Under these circumstances, even if the Court accepts NMDWFS's assertions that Ms. Martinez actively misled NMDWFS such that equitable tolling should be applied, the tolling period is limited to the time NMDWFS would have otherwise had to act. NMDWFS did not file its Complaint within the equitably tolled period following Ms. Martinez's rescission of the Reaffirmation Agreement. This result is unfortunate, since it appears to the Court that Ms. Martinez does not contest the fact that the debt at issue would otherwise constitute a non-dischargeable debt. Nevertheless, NMDWFS did not timely pursue its rights and its claim is time-barred.

Based on the foregoing, the Court concludes that the Motion to Dismiss will be granted. The Court will enter a separate order consistent with this Memorandum Opinion.