Woodson v. Ausmus

Filing 12

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 3/31/2016 AFFIRMING the United States Bankruptcy Court and DENYING Appellee's 7 Motion for Attorney Fees. cc: Counsel, William Arvin, Zachary Webster, US Bankruptcy(JWM) Modified to edit distribution on 3/31/2016 (JWM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00773-GNS
ANGEL WOODSON

APPELLANT

v.

CLIFFORD J. AUSMUS

APPELLEE/DEBTOR

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Appellant Angel Woodson’s appeal from the judgment
and certain orders of the United States Bankruptcy Court for the Western District of Kentucky
and Appellee/Debtor Clifford J. Ausmus’ Motion for Attorney Fees Due to Frivolous Appeal
(Appellee’s Mot. for Att’y Fees due to Frivolous Appeal, DN 7 [hereinafter Appellee’s Mot.]).
Both parties have submitted briefs, and both the appeal and motion are ripe for decision. For the
reasons stated below, the Court AFFIRMS the United States Bankruptcy Court and DENIES
Appellee’s motion.
I.

SUMMARY OF FACTS AND CLAIMS

On December 31, 2014, Appellee/Debtor Clifford J. Ausmus (“Ausmus”) filed a petition
for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Western District of
Kentucky (“the Bankruptcy Court”). (R. 13, DN 4). The Bankruptcy Court entered a Notice of
Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines on January 5, 2015, which
alerted the creditors that the creditors’ meeting would be held on February 5, 2015. (R. 26). The
notice also included a Deadline to Object to Debtor’s Discharge or to Challenge Dischargeability
of Certain Debts of April 6, 2015. (R. 26).

On January 15, 2015, the Bankruptcy Court entered an order dismissing the case due to
Ausmus’ failure to file the required Statement of Financial Affairs and completed Schedules and
Statement of Monthly Income-7. (R. 38). On motion from Ausmus, the case was reinstated on
January 23, 2015. (R. 43). The Bankruptcy Court also entered a Notice of Continued Meeting of
Creditors that rescheduled the meeting from February 5, 2015, to February 19, 2015. (R. 45).
On February 9, 2015, the Bankruptcy Court entered an order dismissing the case a second
time for the same reason. (R. 50). On motion from Ausmus, the case was reinstated on February
10, 2015. (R. 115-16). The Bankruptcy Court also entered a Notice of Continued Meeting of
Creditors that rescheduled the meeting from February 19, 2015, to March 5, 2015. (R. 45). On
March 5, 2015, the Bankruptcy Court entered a third Notice of Continued Meeting of Creditors
that rescheduled the meeting from March 5, 2015, to March 26, 2015. (R. 124). The meeting
adjourned on March 26, 2015, and was scheduled to reconvene on April 23, 2015. (R. 5).
On April 22, 2015, Appellant Angel Woodson (“Woodson”) filed a Motion for Limited
Lifting of Stay. (R. 131-32). In her motion, she noted that a default judgment on the issue of
liability was entered against Ausmus in her favor in Jefferson Circuit Court, and sought to lift the
stay for the purpose of holding a damages hearing in that matter. (R. 131).
On April 24, 2015, the Bankruptcy Court granted Ausmus a discharge. (R. 138). On May
6, 2015, Ausmus filed a counter-motion requesting that the Bankruptcy Court strike Woodson’s
motion and close the bankruptcy case. (R. 148). On May 7, 2015, the Bankruptcy Court
scheduled a hearing on the motions to occur on June 2, 2015. (R. 150). On June 3, 2015, the
Bankruptcy Court issued an order allowing Woodson to file a supplement to her motion and for
Ausmus to file a response. (R. 153).

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On August 20, 2015, the Bankruptcy Court entered a Memorandum and an Order
denying both motions. (R. 228-41). The Bankruptcy Court noted that “[n]o party filed an action
to deny Ausmus’ discharge . . . or to except debt from discharge.” (R. 229). The Bankruptcy
Court held that Rule 60(b) did not provide Woodson relief, and that even if it did, any complaint
to except Ausmus’ debt from discharge would not survive a motion to dismiss due to
untimeliness. (R. 235-36). It also held that Woodson’s request for relief under Section 105 of the
Bankruptcy Code failed as any relief it could provide Woodson would contravene other
provisions of the Bankruptcy Code, a purpose for which it may not be used. (R. 236-37). Finally,
the Bankruptcy Court held that if Woodson had asserted relief through equitable tolling, such
relief would have been denied because she did not diligently pursue her rights. (R. 237-39).
On September 3, 2015, Woodson filed a motion for reconsideration of the Bankruptcy
Court’s Memorandum and Order. (R. 242-49). It is in her motion for reconsideration that
Woodson first asserted the argument presented to this Court: that the “bar date” for filing an
objection to dischargeability or an extension of time to do so changed each time that the
creditors’ meeting did, with the result that the discharge was granted impermissibly early. (R.
242-49). On September 4, 2015, the Bankruptcy Court scheduled a hearing on Woodson’s
motion to occur on September 22, 2015. (R. 251). Following the hearing, the Bankruptcy Court
denied Woodson’s motion for reconsideration. (R. 265).
On October 6, 2015, Woodson filed a motion to reopen the case, a notice of appeal
electing to have her appeal heard by this Court, and a motion to stay the judgment of the
Bankruptcy Court pending her appeal. (R. 266-71, 287-88). Also on October 6, 2015, the
Bankruptcy Court scheduled a hearing for Woodson’s motions on October 20, 2015. (R. 309).
Following the hearing, the Bankruptcy Court entered an order allowing Woodson to supplement

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her motion for a stay and for Ausmus to respond. (R. 337). Also on October 20, 2015, the
Bankruptcy Court entered a Supplemental Order to its September 22, 2015 Order. (R. 349-53).
On November 3, 2015, Woodson filed a second notice of appeal appealing the October
20, 2015 Order of the Bankruptcy Court. (R. 346-48). The record was filed in this case on
December 4, 2015. (R. 1). Woodson filed her brief on January 4, 2016 (Appellant’s Br., DN 6),
and Ausmus filed his brief on February 3, 2016 (Appellee’s Br., DN 8). Ausmus also filed a
Motion for Attorney Fees Due to Frivolous Appeal on February 3, 2016. (Appellee’s Mot. for
Att’y Fees due to Frivolous Appeal). Woodson did not file a timely response. This matter is thus
ripe for adjudication.
II.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 158(a), which allows
litigants to appeal the final judgments, orders, and decrees of bankruptcy courts. 28 U.S.C. §
158(a)(1).
III.

DISCUSSION

Woodson requests that this Court grant her relief pursuant to 11 U.S.C. § 105(a) and
Federal Rule of Civil Procedure 60. The thrust of Woodson’s argument is that the Bankruptcy
Court erred by not resetting the deadline for the filing of nondischargeability complaints after
each dismissal and reinstatement of the case forced the creditor’s meeting to be delayed.
(Appellant’s Br. 7). Upon notice and hearing, a court may determine a debt that would otherwise
be subject to discharge to be excepted from discharge. 11 U.S.C. § 523(c)(1). Federal Rule of
Bankruptcy Procedure 4007 (“Rule 4007”) governs the time limitation to filing of such
complaints for determination of nondischargeability. Fed. R. Bankr. P. 4007. It dictates that
complaints filed pursuant to Section 523(c) “shall be filed no later than 60 days after the first

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date set for the meeting of creditors under § 341(a).” Fed. R. Bankr. P. 4007(c). Another rule
provides that the 60-day time period can be enlarged “only to the extent and under the conditions
stated in [the applicable rule].” Fed. R. Bankr. P. 9006(b)(3).
Woodson cites In re Dunlap, 217 F.3d 311 (5th Cir. 2000) in support of her argument
that the deadline to file a Section 523(c) complaint was reset when the creditors meeting was
rescheduled. In Dunlap, the proceeding was dismissed and then reinstated when it was brought to
the court’s attention that it had erred in dismissing the case without a hearing. Id. at 313. Once
the case was reinstated, three months after dismissal, a new creditors meeting date and due date
for Section 523 complaints were set, but no formal notice of the dates were issued. Id. The
creditors meeting was initially scheduled for February 6, 1998, but reset the same day to January
30, 1998, and the bar date was set as April 7, 1998. Id. Lack of formal notice notwithstanding,
the creditors were nevertheless informed about the bar date on at least three separate occasions in
February and March. Id.
On March 31, 1998, one creditor filed a Section 523 complaint, and another creditor filed
a Section 523 complaint on April 2, 1998. Id. Following a hearing on Dunlap’s motion to dismiss
the two complaints, the court determined that the 60-day window for filing Section 523
complaints began on the date that the creditors meeting was actually held, which was January 30,
1998, and not February 6, 1998. Id. The court calculated the deadline to be March 31, 2008, with
the result that the first creditor’s complaint was timely and the second creditor’s was not. Id. at
313-14.
Ultimately, the Fifth Circuit found that 60 days from the first scheduled date of the
creditors meeting, which would have occurred during the time the case was dismissed, was not
the correct bar date. Id. at 315. Instead, it held that 60 days from the first scheduled date of the

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creditors meeting following reinstatement of the case, which was April 7, 1998, as calculated by
the court initially, was the correct bar date. Id. at 317. Woodson asks the Court to apply this
reasoning and hold that 60 days from the first scheduled date of the creditors meeting following
the second reinstatement of this matter is the correct bar date. (Appellant’s Br. 10-11). The first
date set following the second reinstatement was March 5, 2015, with a resulting bar date of May
4, 2015, making the Bankruptcy Court’s issuance of a discharge premature and Woodson’s
motion to lift the stay timely.
Ausmus argues, inter alia, that Dunlap is easily distinguished from this case, most
notably because the Dunlap court acknowledged that it was applying an old version of Rule
4007.1 (Appellee’s Br. 21 (quoting Dunlap, 217 F.3d at 313 n.1)). A careful reading of the case,
however, reveals that while the bankruptcy court and district court applied the old version of the
rule, the Fifth Circuit applied the new rule. Dunlap, 217 F.3d at 314-15.
The key differences between Dunlap and this matter are the length of time of the
dismissals and the status of the case when the bar date expired. The matter in Dunlap was
dismissed for three months. The first dismissal in this matter lasted for eight days and the second
lasted a single day. In Dunlap, the bar date elapsed while the matter was dismissed, and the bar
date in this matter elapsed while the case was active. These differences between Dunlap and this
matter, coupled with the fact that Dunlap is not binding, results in the Court declining to adopt
the reasoning in Dunlap.

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Ausmus’ first argument is that Woodson did not preserve this issue for appeal as she first raised
this argument in a motion for reconsideration and that it “should not be allowed to be used to
argue for overturning the order denying stay relief because it was not an argument before the
court at that time.” (Appellee’s Br. 11). Whether Ausmus’ argument has merit or not, the Court
elects to address Woodson’s argument for the sake of completing the record.
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Woodson also relies on a Tenth Circuit case in support of her argument. In In re Themy, 6
F.3d 688 (10th Cir. 1993), the Tenth Circuit addressed a situation in which the bankruptcy court
issued a notice that inadvertently gave an erroneous deadline for Section 523 complaints. In re
Themy, 6 F.3d at 689. A creditor filed a Section 523 complaint within the stated deadline after
the accurate deadline had passed and the bankruptcy court accepted the complaint, “holding that
a creditor is entitled to rely on information sent out by the clerk’s office even though it is
contrary to the rules when it leads him to defer action otherwise required.” Id. at 689. The Tenth
Circuit agreed, holding that “the bankruptcy court was within its authority to accept [the
creditor’s] complaint after the sixty-day period expired.” Id. at 690. This case is easily
distinguished; the Bankruptcy Court did not issue a notice stating an incorrect bar deadline.
Woodson, unlike the creditor in Themy, did not rely to her detriment on an incorrect date issued
by the Bankruptcy Court.
The Sixth Circuit has noted that a bankruptcy court does not have the authority to “sua
sponte extend the time in which to filed dischargeability complaints,” but that “does not prevent
a bankruptcy court from exercising its equitable powers under 11 U.S.C. § 105(a).” In re
Isaacman, 26 F.3d 629, 632 (6th Cir. 1994) (internal quotation marks omitted) (quoting Themy, 6
F.3d at 689). In Isaacman, the court’s ultimate conclusion was that “a bankruptcy court may
correct its own mistakes . . . .” Id. at 633. Again, however, it was in the context of an affirmative
erroneous misrepresentation on the part of the bankruptcy court. Id. at 631, 636. This matter does
not involve such a misrepresentation.
More instructive is In re Miller, 228 B.R. 399 (B.A.P. 6th Cir. 1999). In Miller, the first
date set for the creditors meeting was November 22, 1993, with a resulting bar date of January
21, 1994. Id. at 400. Because the debtor did not appear at the first scheduled meeting, nor the

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second, the creditors meeting actually occurred on June 2, 1994. Id. at 400-01. Prior to the
meeting, on May 16, 1994, a creditor sought extension of the dischargeability complaint
deadline, which the bankruptcy court reset to August 1, 1994. Id. at 401. When the creditor filed
a complaint on August 1, 1994, the debtor filed a motion to dismiss the complaint, arguing that it
was filed after the original bar date. Id. The bankruptcy court denied the motion to dismiss. Id.
On review, the Bankruptcy Appellate Panel noted that the creditor did not file its motion
to extend the deadline until after the deadline had passed. Id. The Panel also stated: “Rule
4007(c) is unambiguous. A complaint to determine dischargeability under § 523(c) must be filed
not later than 60 days following the first date set for the meeting of creditors.” Id. (emphasis in
original). It further noted that “[t]he majority of cases interpret Rule 4007(c) to require that the
60-day period runs from the ‘first date set for the meeting of creditors,’ notwithstanding that the
meeting is continued and actually occurs on a different date.” Id. (collecting cases). It agreed
with the majority, and reversed and remanded for dismissal of the creditor’s complaint. Id.
As the Bankruptcy Appellate Panel noted, the text of Rule 4007(c) sets a firm deadline
for the type of complaint filed by Woodson: “no later than 60 days after the first date set for the
meeting of creditors under § 341(a).” Fed. R. Bankr. P. 4007(c). The advisory committee notes
on this subsection are clear: “[i]f a complaint is not timely filed, the debt is discharged.” Fed. R.
Bankr. P. 4007(c) advisory committee’s note to 1999 amendment. Woodson did not seek an
extension of the applicable deadline, and she has provided no binding case law supporting her
position that, absent such an extension, she timely filed her complaint. The Court therefore
declines to exercise its equitable powers under Section 105(a) to revoke Ausmus’ discharge.
Woodson also argues that she is entitled to relief pursuant to Federal Rule of Civil
Procedure 60(b)(1) and (6). (Appellant’s Br. 11-12). Federal Rule of Civil Procedure 60(b)(1)

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allows a court to “relieve a party . . . from a final judgment, order, or proceeding” by reason of
“mistake, inadvertence, surprise, or excusable neglect . . . .” Fed. R. Civ. P. 60(b)(1).
Problematically for Woodson, the Bankruptcy Court did not make a mistake as discussed above,
and there are no facts or arguments supporting inadvertence or surprise.
Woodson has also not proven the existence of excusable neglect. As the Sixth Circuit has
noted:
[T]he courts have determined the existence of excusable neglect by making an
equitable determination based upon the following factors: “(1) the danger of
prejudice to the other party, (2) the length of delay, (3) its potential impact on
judicial proceedings, (4) the reason for the delay, and (5) whether the movant
acted in good faith.”
Burnley v. Bosch Ams. Corp., 75 F. App’x 329, 333 (6th Cir. 2003) (quoting Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 386 (6th Cir. 2001))). Here, the prejudice to Ausmus is great; he
has already been granted a discharge in bankruptcy, and to undo that discharge presents obvious
potential for prejudice. Likewise, revoking Ausmus’ discharge and granting a stay would have a
significant impact on his bankruptcy proceedings; it would almost entirely rewind the case.
While a delay of 16 days after bar date lapsed is not so great a delay, Woodson has not
presented a sufficient reason for the delay. There is no question that she received the first notice
setting the bar date and did not receive any correspondence from the Bankruptcy Court
misrepresenting the bar date thereafter. Woodson had notice of the bar date, had opportunity to
clarify the bar date with the Bankruptcy Court following the reinstatements of this matter, and
had the opportunity to move for an extension of the bar date. Finally, there is no indication that
Woodson has acted in bad faith. On balance, however, Woodson cannot obtain Rule 60(b)(1)
relief as there was no excusable error.

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Rule 60(b)(6) allows relief from a final judgment, order, or proceeding for “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “[R]elief under Rule 60(b)(6) . . . requires a
showing of ‘extraordinary circumstances.’” Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). A
missed deadline or statute of limitations is not an extraordinary circumstance; it is, unfortunately,
fairly common. Accordingly, the Court cannot grant Woodson relief pursuant to Rule 60(b)(6).
Finally, Ausmus seeks an award of double attorney fees on the premise that Woodson’s
appeal is frivolous. (Appellant’s Mot. for Att’y Fees Due to Frivolous Appeal). “If the district
court . . . determines that an appeal is frivolous, it may . . . award just damages and single or
double costs to the appellee.” Fed. R. Bankr. P. 8020. Federal Rule of Bankruptcy Procedure
8020 (“Rule 8020”) “is materially the same as Federal Rule of Appellate Procedure 38,” and thus
Federal Rule of Appellate Procedure 38 (“Appellate Rule 38”) and case law interpreting it
provide “guidance” when ruling on motions pursuant to Rule 8020. In re Reese, 485 F. App’x
32, 35 (6th Cir. 2012).
“[S]anctions are warranted under Appellate Rule 38 ‘only in the rare case when an appeal
involves an improper purpose, such as harassment or delay, or when . . . an appeal consist of
baseless or improperly raised arguments.’” Id. (second alteration in original) (quoting B & H
Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 271 (6th Cir. 2008)). “Frivolous appeals, such
as those in which ‘the result is obvious or [the] appellant’s argument is wholly without merit,’
also may warrant sanctions.” Id. (alteration in original) (quoting Dubay v. Wells, 506 F.3d 422,
433 (6th Cir. 1998)). Given the in-depth analysis the Court has undertaken, it is clear that while
Woodson’s argument is flawed, it is not obvious or wholly without merit, particularly given that
the Fifth Circuit has embraced Woodson’s argument, albeit in a case distinguishable from the

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case sub judice. Because Woodson’s appeal is not frivolous, the Court will deny Ausmus’
motion.
IV.

CONCLUSION

For the foregoing reasons, the orders of the Bankruptcy Court are AFFIRMED, and
Ausmus’ Motion for Attorney Fees Due to Frivolous Appeal (DN 7) is DENIED.

Greg N. Stivers, Judge
United States District Court
March 31, 2016

cc:

counsel of record

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