PBCBA BAR BULLETINS pbcba_bulletin_may 2018 | Page 9

BANKRUPTCY C o r n e r When Do You Get a Second Bite at the Apple? It Depends on How You Error. JASON S. RIGOLI In an unpublished opinion issued on February 6, 2017, the United States Court of Appeal for the Eleventh Circuit (“Eleventh Circuit” of “Court”), held th at the filing of a dischargeability motion, rather than a complaint, was not fatal to the subsequent, untimely, dischargeability complaint filed by a creditor. Beem v. Ferguson, Case No. 16-11842, -- Fed.Appx. --, 2018 WL 718609 (11th Cir. Feb. 6, 2018). The question before the Eleventh Circuit was whether the “timely filed motion in the bankruptcy case functioned as an ‘original pleading’ to which the untimely adversary complaint related back.” Id. at *3. timely filed motion, because Fed. R. Bankr. P. 7015, incorporating Fed. R. Civ. P. 15, only applies to pleadings, Fed. R. Civ. P. 15(c)(1) (B), and as stated a motion is not a pleading. Fed. R. Civ. P. 7(a). The Eleventh Circuit held to the contrary, saying the appellant’s argument is missing the analysis of another applicable rule of procedure. MEMBER BENEFITS American Safety Council State Approved Online Courses including Florida Notary Service; Parent Education & Familiy Stablization Course; Florida Online Traffic School; First Time Driver (D.A.T.A.) Course; Mature Driver Course; Judge The Eleventh Circuit’s Ruling Ordered Program and Advanced Driver Improvement Program. Refer your clients to The Court looked to and relied upon the website and a small portion of the class Rule 8 of the Federal Rules of Civil Procedure, fee is remitted to the PBCBA. as incorporated by Fed. R. Bankr. P. 7008. The federal notice pleading standard is PAYCHEX satisfied by a (i) short and plain statement Members of the Palm Beach County Bar Procedure and Timing of Challenging of the ground for the court’s jurisdiction; Association (new enrollees only) are now Dischargeability a short and plain statement of the claim entitled to receive at 50% discount off showing the pleader is entitled to relief; Paychex’ services which includes payroll First, Rule 7001(6) of the Federal and a demand for the relief sought. Beem, preparation and automatic payment of Rules of Bankruptcy Procedure requires at *4 (quoting Fed. R. Civ. P. 8(a) (internal payroll taxes, plus electronic filing of that nondischargeability be pursued by quotations omitted)). And, “pleadings must quarterly and annual returns and HR adversary proceeding. And, Rule 7003 be construed to do justice.” Id. at *4 (internal benefits . Members will also receive 1 Free requires an adversary proceeding be citations and quotations omitted). Month of Services, along with a waiver of commenced by the filing of a complaint. your initial set up fee ($200.00 Value). If you Beem, 2017 WL 718609 at *3. The Court went on to state that are interested in receiving this discount, the “ ‘Federal Rules reject the approach please contact Romy Lidor at [phone]. Rule 4007(c) of the Federal Rules of that pleading is a game of skill in which Bankruptcy Procedure states: “[A] complaint one misstep by counsel may be decisive to PALM BEACH YACHT CLUB to determine the non-dischargeability of a the outcome and accept the principle that The Palm Beach Yacht Club offers a discount debt under § 523(c) shall be filed no later the purpose of pleading is to facilitate a to young lawyers (special dues category is than 60 days after the first date set for proper decision on the merits.’ ” Beem, at valid through 39th birthday). Regular dues the meeting of creditors.” This deadline *4 (quoting Conley v. Gibson, 355 U.S. 41, 48, for an individual membership is $1375, can be extended for cause upon the filing 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated in but this special offer for Young Lawyers of a motion by a party in interest. Fed. R. part by Twombly, 550 U.S. at 563, 127 S.Ct. (new members only) is $500. To obtain an Bankr. P. 9006(c). And, as the Eleventh 1955)). application for annual membership, please Circuit has previously held, a bankruptcy download a copy of the application here. court loses all discretion for extending the In applying this analysis, the dischargeability deadline when the motion Eleventh Circuit held that by setting forth is filed late. Beem, 2017 WL 718609 at *3 enough information in the motion to give the PLANET GREEN (citing In re Alton, 837 F.2d 457, 459 (11th Cir. debtor notice of the relief being requested The Palm Beach County Bar Association and the basis for that relief, the mere fact raises funds by recycling inkjet cartridges, 1988)). that the document filed by the creditor was cell phones and other small electronic What Constitutes a “Pleading” and Satisfies captioned as a motion was not dispositive with Planet Green. Most of us have these the Requirements of Fed. R. Bankr. P. 7015 of whether it could be construed as a recyclable items sitting around our homes “pleading.” Id. at *5 (citing earlier opinions collecting dust and now you can recycle Fed. R. Bankr. P. 7007, incorporates in which the Eleventh Circuit held that them and help us raise money at the same Fed. R. Civ. P. 7, which identifies “pleadings,” certain documents and filings constituted time. and a motion is not a pleading. Fed. R. Civ. a complaint even though it was not titled P. 7(a). as such.). Therefore, the Eleventh Circuit concluded that the complaint was timely Based upon the rules set forth because it related back to the motion, which above, the appellant argued that the was construed as the original pleading This article is submitted by Jason S. Rigoli, Esq., Furr Cohen, 2255 Glades Road, Suite 337W, Boca Raton, FL Bankruptcy Court erred in finding that the under Fed. R. Civ. P. 15(c). Id. at *5. 33431, [email protected]. untimely complaint relates back to the PBCBA BAR BULLETIN