ERIC L. FRANK, U.S. BANKRUPTCY JUDGE.
In this adversary proceeding, Chicago Title Insurance Co. ("Chicago Title") seeks a determination that the debt owed by Debtor Tatyana Mazik ("the Debtor") is nondischargeable under 11 U.S.C. § 523(a)(2)(A) and § 523(a)(6). Pursuant to Fed. R. Civ. P. 12(b)(6), the Debtor filed a motion to dismiss the adversary complaint ("the Motion"). The Motion is based primarily on three (3) grounds:
For the reasons explained below, the Motion will be granted, and the Complaint dismissed. However, Chicago Title will be granted leave to amend to assert a claim under 11 U.S.C. § 523(a)(3).
Prior to commencing this bankruptcy case, the Debtor filed an earlier case, under chapter 7, on March 28, 2017, docketed at Bky. No. 17-12125 ("the Prior Case").
On June 30, 2017, Chicago Title filed an adversary proceeding in the Prior Case, alleging that the debt arising from two (2) promissory notes it holds ("the Notes") was nondischargeable under § 523(a)(2) and (a)(6). (
The Debtor filed the present chapter 13 bankruptcy case on January 31, 2018.
On February 23, 2018, the court issued the Notice of Chapter 13 Bankruptcy Case (Official Form 309I) ("the § 341 Notice"). The § 341 Notice set April 4, 2018 as the date for the meeting of creditors and fixed June 3, 2018 as the deadline to file a complaint challenging the dischargeability of a debt under 11 U.S.C. § 523(a)(2), § 523(a)(4) and § 1328(f).
On July 2, 2018, Chicago Title filed the instant adversary complaint ("the Complaint") and a motion to enlarge time to file a proof of claim (Bky. No. 18-10643, Doc. # 47).
On July 16, 2018, the Debtor filed the Motion. (Adv. No. 18-151, Doc. # 9). Chicago Title responded to the Motion on August 7, 2018. (Adv. No. 18-151, Doc. # 13).
The Debtor moves to dismiss the Complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6) is applicable in adversary proceedings under Fed. R. Bankr. P. 7012. I have previously discussed the legal standard for a motion to dismiss:
In the Complaint, Chicago Title alleges that the Debtor's husband, Yuriy Mazik ("Mr. Mazik"), brokered the purchase of a property at 102 Horseshoe Lane, North Wales, Pennsylvania (the "First Property"). Mr. Mazik initially told the purchasers — the Shapiros — that he was a licensed real estate agent. However, on the closing date, Mr. Mazik revealed that in fact he was not licensed either to broker the sale or to obtain a mortgage on behalf of the Shapiros. Therefore, the sale of the First Property to the Shapiros was not completed as planned. Rather, the First Property was purchased by the Debtor, who took out a mortgage on the property, financed in part by the Shapiro's $40,000 deposit. In an odd arrangement, the Shapiros lived in the First Property and paid the Debtor's mortgage until, in 2008, the Shapiros were able to obtain their own mortgage; at that time, the Shapiros purchased the First Property from the Debtor.
The Debtor's mortgage financing was provided by America's Wholesale Lender ("America's Wholesale"). The Debtor signed a note ("the Horseshoe Lane Note") and mortgage for $391,400.00. Chicago Title insured America's Wholesale in this lending transaction.
Chicago Title alleges that due to the fraud and collusion of Mr. Mazik, the Debtor, and the settlement agent, America's Wholesale's mortgage on the First Property was not recorded. Because the America's Wholesale mortgage was unrecorded, its loan was not paid off at closing when the Shapiros purchased the First Property from the Debtor. Instead, the proceeds were received by the Debtor.
In 2005, the Debtor and Mr. Mazik purchased another property located at 1477 Rockwell Road, Abington, Pennsylvania ("the Second Property"). The Debtor and Mr. Mazik financed this purchase with another mortgage from America's Wholesale, and the Debtor signed the associated $216,000.00 note ("the Rockwell Road Note") (collectively with the Horseshoe Lane Note, "the Notes"). Chicago Title also insured America's Wholesale in the transaction.
Again, Chicago Title alleges that the Debtor, her husband, and their settlement agent colluded to insure that the Rockwell Road mortgage was not recorded.
In 2006, the Debtor and Mr. Mazik sold the Second Property. The unrecorded mortgage was not paid off at closing and the Debtor and Mr. Mazik received the
The mortgages and their associated Notes were sold to Bank of America, which later discovered that the mortgages were unrecorded and had been primed by the properly-recorded mortgages of the subsequent purchasers. Bank of America tendered a title insurance claim to Chicago Title, which accepted coverage in 2015. Chicago Title paid the amount of the Notes to Bank of America, and Bank of America assigned the Notes to Chicago Title.
Both Notes are in default and have been for some time. Both have been rendered unsecured by the failure to record the mortgages. With fees, costs and interest added to the unpaid principal, the Debtor owes more than $1 million on the Notes.
The Debtor makes three (3) arguments in support of dismissal of the Complaint:
Implicit in a determination that a debt is nondischargeable under 11 U.S.C. § 523(a) is the requirement that there be an enforceable debt under applicable nonbankruptcy law. "An action to determine the dischargeability of a debt under § 523(a) has two components.... The first step requires that the creditor establish that a debt is in fact owed by the debtor."
The Debtor alleges that the debt arising from the Notes is unenforceable because the applicable statute of limitations has expired.
In this proceeding, the Notes are installment contracts with acceleration clauses. The Complaint pleads that the Horseshoe Lane Note was accelerated by Chicago Title in mid-2015. (Compl. ¶ 38). The Complaint also allows me to infer that the Rockwell Road Note has not yet been accelerated, but there have been installment defaults that would allow Chicago Title to accelerate. (Compl. ¶¶ 53, 61).
Based on the allegations in the Complaint, neither Note was accelerated more than four (4) years before the commencement of the bankruptcy case. Therefore, I cannot conclude that the statute of limitations has run on Chicago Title's claim against the Debtor.
The Debtor moves to dismiss the Complaint because it was not timely filed under the rules of court.
Complaints alleging nondischargeability under 11 U.S.C. §§ 523(a)(2), (4) or (6) are governed by § 523(c)(1), which provides for exclusive bankruptcy court jurisdiction of such nondischargeability determinations.
Further, § 523(c) complaints —
In this case, the deadline imposed by Rule 4007(c) expired on June 4, 2018, twenty-eight (28) days before Chicago Title filed its Complaint. Thus, as the Debtor contends, the Complaint is facially untimely.
In response, Chicago Title argues that even if the Complaint was not filed according to the initial deadline, some mechanism — tolling, equity, permissive extension — applies in this case, so the Complaint should be deemed timely.
Chicago Title initially invokes Fed. R. Bankr. P. 9006(b) — in effect, asking me to consider its response to the Motion as a request for enlargement of time under Rule 4007(c).
Rule 9006(b) generally permits the enlargement of time for various actions in bankruptcy cases upon a showing of either "cause" or "excusable neglect" (depending on whether the enlargement request is made before or after the deadline). However, Rule 9006 also identifies certain matters in which the deadline can be extended
Rule 9006(b)(3) expressly provides that the time for taking action under Rule 4007(c) —
Rule 4007(c) permits extension of the deadline by motion "filed before the time has expired."
Chicago Title's request for an extension of the Rule 4007(c) deadline in its response to the Motion was made after the expiration of the deadline. Thus, through its deference to Rule 4007(c), Rule 9006 provides no remedy to Chicago Title.
Next, Chicago Title asserts that the Rule 4007(c) deadline should be equitably tolled because the Debtor failed to provide Chicago Title with notice of the bankruptcy case and the deadline for filing a nondischargeability complaint until a scant few days before the deadline.
The equitable tolling doctrine generally "stops the running of a limitations period;" but whether the deadline fixed by Rule 4007(c) is subject to this doctrine is "less clear."
Courts are divided on this issue, and there is no binding case law in this circuit.
I need not reach the issue here. Even if equitable tolling may be applied under Rule 4007(c), I decline to apply the doctrine because Chicago Title has an adequate remedy at law.
As explained in the next two (2) sections of this Memorandum, even after dismissal of the Complaint, Chicago Title has an alternative and adequate remedy: invoking 11 U.S.C. § 523(a)(3) to assert its claims under § 523(a)(2)(A) and § 523(a)(6).
Finally, Chicago Title invokes 11 U.S.C. § 523(a)(3)(B), an exception to the chapter 7 discharge,
Chicago Title argues that section 523(a)(3)(B) "excuses a creditor who does not receive notice of the pendency of a bankruptcy case in time to file a timely non-dischargeability action from the 60-day deadline imposed by Rule 4007(c) for claims referenced under 523 (a)(2), (4), or (6)." (Response ¶ 6, 7).
There is some authority that is consistent with Chicago Title's position that § 523(a)(3)(B) provides a mechanism for relief from the Rule 4007(c) deadline.
Section 523(a)(3)(B) is a cause of action, not an excuse from deadlines. As one court observed, if a creditor does not receive notice, the "remedy lies in section 523(a)(3)(B) rather than an untimely motion to extend" under Rule 4007(c).
In other words, the court lacks authority under the rules of court to extend the Rule 4007(c) deadline, but the statute, § 523(a)(3), gives the creditor deprived of notice of the deadline the opportunity to assert nondischargeability claims arising under § 523(a)(2), (4) and (6) as subcomponents of a § 523(a)(3) claim.
Consequently, § 523(a)(3)(B) does not provide grounds to permit the late filing of Chicago Title's Complaint.
Based on the discussion above, I conclude that the Complaint must be dismissed because it was not timely filed. The next question is whether Chicago Title should be granted leave to file an amended complaint.
It is well settled that a court should grant a plaintiff leave to amend "unless an amendment would be inequitable or futile."
Here, while Chicago Title may not proceed under 11 U.S.C. § 523(a)(2)(A) or § 523(a)(6), it may be able to obtain the relief it seeks under § 523(a)(3)(B).
A § 523(a)(3)(B) claim has two (2) major elements:
The Complaint describes in detail a scheme designed to deprive Chicago Title's predecessor-in-interest of its bargained for secured position against the real property owned and then sold by the Debtor and her spouse, and the financial detriment Chicago Title suffered as a result of the alleged fraudulent or willful and malicious conduct. An extended discussion is not required to explain my conclusion that the facts alleged state a claim for relief under either 11 U.S.C. § 523(a)(2)(A) or § 523(a)(6).
On the other hand, the Complaint lacks any allegations to support the lack of notice element of a § 523(a)(3)(B) claim. However, in light of the representations made in Chicago Title's response to the Motion, as well as the evidence presented at the hearing on its motion to extend the deadline for filing a proof of claim, it is certainly possible that Chicago Title can supplement the allegations in the Complaint with the additional allegations necessary to state a claim under 11 U.S.C. § 523(a)(3),
For the reasons stated above, the Debtor's Motion will be granted. Chicago Title's nondischargeability claims under § 523(a)(2) and (6) claims are not adequately pled; they are untimely and must be dismissed. However, I will grant Chicago Title leave to amend if it wishes to pursue an alternate nondischargeability theory under § 523(a)(3).
That said, considering that the Debtor is aware of the affirmative defense and can be expected to raise it, the distinction I have drawn appears immaterial. What would be the point of determining the debt to be nondischargeable only to have the Debtor successfully defend against an enforcement action in state court?
At the September 25, 2018 hearing, Chicago Title offered evidence that, on March 14, 2018, it filed a civil action in federal district court to collect upon the Notes. (See No. 18-CV-1116-CDJ (E.D. Pa.)). Chicago Title maintains that, thereafter, the Debtor failed to give it notice of her bankruptcy filing. On May 21, 2018, the Debtor's codefendants in the District Court case filed a suggestion of bankruptcy that referenced the Debtor's bankruptcy. Chicago Title asserts that this was the first notice it received of the bankruptcy case.
Technically, this evidence is not part of the record in this adversary proceeding. However, I will consider it in evaluating whether Chicago Title should be granted leave to amend.
In order to obtain a nondischargeability determination under § 523(a)(3), some courts require only that a creditor not provided with notice of the § 523(c) filing deadline establish only that it holds a "colorable" claim under § 523(a)(2), (4) or (6); other courts require that the creditor prove the merits of the § 523(a)(2), (4) or (6) claim.
