Memorandum of Decision Re: Late Dischargeability Action

In re JAMES WHITMAN,                                                   No. 92-12909        Debtor. ___________________________/ DAVID and JUDY RAMPONI,        Plaintiffs,    v.                                                                              A.P. No. 93-1246 JAMES WHITMAN,        Defendant. ______________________________/
Memorandum of Decision
     Prior to bankruptcy, debtor James Whitman leased a residence from plaintiffs David and Judy Ramponi. On October 23, they filed an unlawful detainer action in state court because Whitman was not paying rent. Whitman filed his Chapter 7 bankruptcy November 12, 1993; the Ramponis were scheduled as creditors and had actual knowledge of the bankruptcy. The last day to file actions to determine the dischargeability of debts pursuant to FRBP 4007(c) was March 6, 1993. This action was filed on October 20, 1993. Whitman has moved for dismissal.      The only justification the Ramponis give for filing an action seven months after the deadline is a provision in the consent judgment they obtained in state court which provided "The Ramponis shall have the right to assert their claims for money damages against the Whitmans in the above described bankruptcy case." This position has no merit for two reasons. First, a dischargeability action is not the same as as asserting a claim; the Ramponis have the right to file a claim and share in any dividend to creditors. Second, even if the consent judgment had purported to extend the time to file a dischargeability action, it would not be valid. Even if the parties agree to an extension in writing, it has no effect unless approved by the bankruptcy court before the time has expired. In re Neese, 87 B.R. 609 (9th Cir.BAP 1988). The court has no equitable power to allow a late claim even if equitable circumstances warranted it. In re Hll, 811 F.2d 484, 485 (9th Cir.1987).      For the foregoing reasons, Whitman's motion will be granted and judgment shall be entered dismissing this action with prejudice. Whitman shall recover his costs of suit from the Ramponis as well as $684.50 in attorneys' fees which are awarded under both section 523(d) of the Bankruptcy Code and FRBP 9011.      Counsel for Whitman shall submit an appropriate form of judgment forthwith.
Dated: December 18, 1993                                                                      _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy