Appeal from the United States Bankruptcy Court for the Northern District of Ohio. Case No. 11-42621; Adv. No. 12-04024.
The opinion of the court was delivered by: George W. Emerson, Jr., Bankruptcy Appellate Panel Judge.
By order of the Bankruptcy Appellate Panel, the precedential effect of this decision is limited to the case and parties pursuant to 6th Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c).
Submitted: November 13, 2012
Before: EMERSON, McIVOR, and PRESTON, Bankruptcy Appellate Panel Judges.
This is an appeal from the bankruptcy court's memorandum opinion and order dismissing the adversary proceeding filed by the Appellant for failing to timely file her complaint to determine the dischargeability of certain debts pursuant to 11 U.S.C. § 523(a)(2), (a)(3), (a)(4) and/or (a)(6). The bankruptcy court determined that even though the Appellant was not listed as a creditor on the Debtor's Chapter 7 schedules, she was aware of the bankruptcy case within sufficient time to object to the discharge of the debt allegedly owed her by the Debtor, but that she failed to do so. The bankruptcy court found that because Appellant's complaint was filed beyond the bar date set forth in Federal Rule of Bankruptcy Procedure 4007(c), the alleged debt owed to Appellant was discharged upon entry of the discharge order in the Debtor's case.
The issue presented in this appeal is whether 11 U.S.C. § 523(a)(3)(B) applies to the Appellant's complaint objecting to the dischargeability of the debt pursuant to 11 U.S.C. § 523(a)(2), (4) and (6) such that the 60-day statutory time limit imposed by Federal Rule of Bankruptcy Procedure 4007(c) did not apply.
For the following reasons, the Panel affirms the bankruptcy court's memorandum opinion and order dismissing the Appellant's complaint as untimely.
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (citations omitted). An order dismissing an adversary complaint as untimely is a final order for purposes of appeal. Vazquez v. Prego Cruz (In re Prego Cruz), 323 B.R. 827, 829 (B.A.P. 1st Cir. 2005).
Adequacy of notice required by a statute is a mixed question of law and fact, composed as follows: "[T]he question of whether any notice was given, and if so, what the notice consisted of and when it was given, is one of fact. However, the question of whether the notice satisfied the statutory requirement is one of law." K & M Joint Venture v. Smith Int'l, Inc., 669 F.2d 1106, 1111 (6th Cir. 1982); accord BP Care, Inc. v. Thompson, 398 F.3d 503, 514 n.8 (6th Cir. 2005) (A determination of whether a party had notice of a particular proceeding is a finding of fact.)
When a mixed question of law and fact arises in the bankruptcy context, the reviewing court "must break it down into its constituent parts and apply the appropriate standard of review for each part." Bank of Montreal v. Official Comm. Of Unsecured Creditors (In re Am. Homepatient, Inc.), 420 F.3d 559, 563 (6th Cir. 2005) (citations omitted). The appellate court reviews conclusions of law de novo but must review the underlying factual determinations under a clearly erroneous standard. Under a de novo standard of review, the appellate court must "review questions of law independent of the bankruptcy court's determination. A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite ...