Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2007

In Re: Walter Mackay
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4890




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Recommended Citation
"In Re: Walter Mackay " (2007). 2007 Decisions. Paper 242.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/242


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                                                    NOT PRECEDENTIAL




           IN THE UNITED STATES COURT
                    OF APPEALS
               FOR THE THIRD CIRCUIT


                       NO. 06-4890


         IN RE: WALTER D. MACKAY, Debtor
           165248 CANADA LTD., Appellant
                       v.
                WALTER D. MACKAY




            On Appeal From the United States
                       District Court
          For the Middle District of Pennsylvania
           (D.C. Civil Action No. 05-cv-01020)
          District Judge: Hon. A. Richard Caputo


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     October 25, 2007


BEFORE: FISHER, STAPLETON and COWEN, Circuit Judges,


                (Filed: November 8, 2007 )
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellee, Walter D. MacKay (“MacKay”), filed a Chapter 7 bankruptcy

proceeding. 165248 Canada, Ltd. (“Canada”), was his only unsecured creditor. It had

two Canadian judgments against MacKay.

       On June 6, 2002, Canada filed a complaint objecting to the discharge of MacKay.

Thereafter, MacKay successfully sought conversion to a Chapter 13 proceeding. Several

months later, MacKay filed a motion to dismiss Canada’s complaint as moot. This

motion was granted without prejudice on May 20, 2003. The dismissal order was not

appealed.

       On December 16, 2003, the Bankruptcy Court converted MacKay’s case back to a

Chapter 7 case, and March 9, 2004, was established as the date to file objections to

discharge. Canada did not file a new complaint objecting to discharge because its counsel

did not remember that its prior complaint objecting to discharge had been dismissed. On

March 15, 2004, the Court granted a discharge pursuant to 11 U.S.C. § 727. Canada

thereafter moved for reconsideration of the orders of March 15, 2004 and May 20, 2003.

Both motions were denied, and the District Court affirmed by order dated October 24,



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2006. We will affirm that order.

       We will assume arguendo that Fed. R. Bank. 9024 does not render Fed. R. Civ. P.

60 inapplicable here.1 We will nevertheless affirm for essentially the reasons given by the

Bankruptcy Court.

       With respect to the May 20, 2003, order, we find no “mistake, oversight, or

omission” within the meaning of Rule 60(a). Mackay’s failure to file a brief in support of

his motion to dismiss did not in any way affect the Bankruptcy Court’s order of May 20,

2003. M.D. Pa. Local Rule 1.3.

       With respect to the order of March 15, 2004, the Bankruptcy Court denied

Canada’s motion on the ground that vacation of that order would grant Canada no

effective relief. The Court first noted that under Rule 9006(b)(3) the Court may enlarge

the time for taking action under Rule 4004(a), which sets forth the time for filing a

complaint objecting to discharge “only to the extent and under the conditions stated in”

that rule. The Court then explained:

               With the impact of Fed. R. Bank. P. 9006 in mind, the Court
       questions what the Movant could expect to be accomplished by the granting
       of its Motion to reconsider the Discharge Order. Should the Court vacate
       the entry of the Discharge, would the procedural posture of the case provide
       the Movant with a remedy? This query is made keeping in mind that the
       original Complaint objecting to the discharge while this case was in the
       initial Chapter 7 was dismissed, and the Movant neither filed a motion for
       reconsideration nor an appeal of that dismissal. In other words, there is no
       pending complaint objecting to discharge. Furthermore, under Rule

   1
   Read literally, Rule 9024 appears only to set a time limit for Rule 60 motions in this
context.

                                             3
      4004(a), the time for filing a complaint objecting to discharge in the instant
      Chapter 7 had long since passed and had passed even at the time of the
      filing of the instant motions under consideration. With no timely request
      for an extension of time to file a complaint objecting to discharge under
      Rule 4004(b), the Court has neither discretion nor authority under Rule
      9006(b)(3) to enlarge the time to file that complaint.

App. at 15a.

      We agree with this reasoning, and we will affirm the District Court’s order of

October 24, 2006.




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