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In re Sven

December 13, 2006

IN RE: ARIC SVEN, DEBTOR,
LANA LEMONS, APPELLANT,
v.
ARIC SVEN, APPELLEE.



Appeal from the U.S. Bankruptcy Court Central District of Illinois Hon. Mary Gorman, presiding Bankruptcy Case No. 05-74660.

The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

Lana LeMons appeals from the denial of her Motion to Vacate the discharge and to extend the time to file a complaint to determine the dischargeability of her claim in Aric Sven's Chapter 7 bankruptcy. For the reasons set forth below, the decision of the Bankruptcy Court is AFFIRMED.

STATEMENT OF FACTS

On March 1, 2005, Sven was convicted in Lake County, Illinois, Circuit Court of the crime of Child Pornography in violation of 720 ILCS 5/11-20.1(a)(1)(vii) (Conviction). Record on Appeal (d/e1) (Record), Part 2, Item 33, Motion to Vacate Discharge and Extend Time to File Complaint Excepting Debt From Discharge (Motion to Vacate), ¶ 5. His conviction was based in part on his installation of pinhole cameras in bathrooms in certain residences in Richmond and Antioch, Illinois, and subsequent videotaping of LeMons and her daughter partially or fully nude. LeMons, on behalf of herself and her daughter, sued Sven in Lake County, Illinois, Circuit Court, for this tortious conduct. Id., ¶ 1.

While LeMons' civil action was pending, Sven filed a Chapter 7 bankruptcy petition in this District on September 2, 2005. Record, Part 1, Item 2, Voluntary Petition. Sven listed LeMons and her daughter as contingent unsecured creditors. Record, Part 1, Item 7, Schedule F, Creditors Holding Unsecured Non-priority Claims. On September 4, 2005, a Notice was sent to all creditors in Sven's bankruptcy, including LeMons and her daughter. Record, Part 1, Item 3, Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines (Notice). The Notice stated that the First Meeting of Creditors would be held on September 28, 2005. See 11 U.S.C. § 341 (The Meeting of Creditors is also referred to as a 341 meeting). The Notice also stated in a separate box:

Deadlines:

Papers must be received by the bankruptcy clerk's office by the following deadlines:

Deadline to File Complaint Objecting to Discharge of the Debtor or to Determine Dischargeability of Certain Debts: 11/27/05

Deadline to Object to Exemptions: Thirty (30) days after the conclusion of the meeting of creditors.

Id. (emphasis in the original). A complaint objecting to discharge seeks to deny the debtor a discharge completely so that he owes all debts as if he had not filed bankruptcy. 11 U.S.C. § 727. A complaint to determine dischargeability of certain debts does not seek to deny the discharge completely; rather, this type of action seeks a determination that the debtor still owes a specific debt after receiving a discharge in bankruptcy because the debt fits within an exception to the discharge. 11 U.S.C. § 523. A complaint brought under § 523 is also called a non-dischargeability complaint. An objection to exemptions challenges the debtor's claim that certain property is exempt from use to pay creditors' debts. 11 U.S.C. § 522.

LeMons' claim and her daughter's claim against Sven, if proven, would have resulted from Sven's intentional conduct; if so, Sven's obligations to her and her daughter could have been declared non-dischargeable as an exception to his discharge as a debt arising from willful and malicious conduct. 11 U.S.C. § 523(a)(6). Thus, the Notice informed LeMons that she had until November 27, 2005, to file a non-dischargeability complaint on behalf of her daughter and herself. The deadline to file nondischargeability complaints under § 523(a)(6) is sixty days after the date first set for the Meeting of Creditors. Bankruptcy Rule 4007(c).*fn1 November 27, 2005, is sixty days after the date first set for that meeting, September 28, 2005. To extend the sixty-day period, a creditor or party in interest must file a motion to extend before the deadline expires. Id. The deadline for filing complaints to deny discharge under § 727 is subject to a similar sixty-day filing deadline. Bankruptcy Rule 4004(a).

Neither Sven, LeMons, nor any other creditor showed up at the Meeting of Creditors on September 28, 2005. Sven was incarcerated at that time serving his sentence on the Conviction. The Meeting was continued to October 26, 2005.

On October 20, 2005, the Chapter 7 Trustee, James R. Inghram, filed a Motion entitled, "Motion to Extend the Date of Discharge and Date to Object to Debtors' [sic] Claim of Exemptions"(Trustee's First Motion). Record, Part 1, Item 10. The body of the Trustee's First Motion states:

NOW COMES James R. Inghram, Trustee, and respectfully moves that the Date of Discharge and the date to object to the debtor's claim of exemptions in Schedule C be extended to December 26, 2005 for the reason that the 341 Meeting previously scheduled for September 28, 2005, has been continued to October 26, 2005.

WHEREFORE, Trustee prays the date of discharge and the date to object to debtor's claim of exemptions in Schedule C be extended to December 26, 2005.

Id. The Bankruptcy Court's Docket described the Trustee's First Motion as a "Motion to Extend/Shorten Time Date of Discharge and Date to Object to Debtor's Claim of Exemptions Filed by Trustee James R. Inghram." Record, Part 1, Item 1, Docket Report.

The Bankruptcy Court entered an Order allowing the Trustee's First Motion. Record, Part 1, Item 11, Order entered October 26, 2005. The October 26, 2005, Order stated, in part:

On October 20, 2005, Trustee, James R. Inghram filed the motion(s) marked below with an X:

X Motion to extend time to file a complaint objecting to discharge of the debtor.

Motion to extend time to file a complaint to determine dischargeability of certain types of debt.

It appearing that the time to file such complaint(s) should be extended; and no adverse interest appearing, and no notice being necessary or required; and the Court finding that such extension will work no hardship upon the Debtor, but will give the ...


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