Memorandum of Decision Re: Late Dischargeability Action

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re CHERYL SCHEURER,                                                   No. 92-11370      Debtor. ___________________________/ SHIRLEY LE SUEUR,      Plaintiff,    v.                                                                               A.P. No. 92-1318 CHERYL SCHEURER,      Defendant. ______________________________/
Memorandum of Decision
     Debtor Cheryl Scheurer filed her Chapter 7 petition on May 27, 1992. Her meeting of creditors was set for July 21, 1992. The meeting was attended by David Ewing, counsel for plaintiff Shirley Le Sueur. On October 6, 1992, some 15 days after the bar date of FRBP 4007(c), Le Sueur filed the complaint in this adversary proceeding seeking to have Scheurer's debt to her declared nondischargeable pursuant to sections 523(a)(2) and (4) of the Bankruptcy Code.      This matter came on for status conference on November 23, 1992, with Scheurer representing herself. The court gave her debtor ten days to file an answer, and she filed one on December 2, 1992. However, the court inadvertently entered a default judgment on December 1, 1992. Scheurer now seeks vacation of the default judgment and dismissal of the case. For the reasons set forth below, the court will grant the motion.      There is no question that the court erred in granting the default judgment. It was submitted on November 25, with no mention of the time afforded to Scheurer. Scheurer, not having an attorney at the time, evidently was relying on the court to catch the matter. In any event, the court would relieve Scheurer from default even if the request had been proper; adjudication on the merits is always preferable to default.      Le Sueur, citing the recent Supreme Court decision in Pioneer Investment Services Co. v. Brunswick, --- U.S. --- (1993), agues that the complaint ought to be allowed late due to excusable neglect. However, that decision dealt with a claims bar date in Chapter 11, not a dischargeability action bar date in Chapter 7. Unlike Chapter 11 claims bar dates, Chapter 7 dischargeability action bar dates are set by rule. While the clerk is obligated to notice the dischargeability action bar date, all creditors with knowledge of the bankruptcy are bound by the bar date even if they never got actual notice of it. In re Bucknum, 951 F.2d 204 (9th Cir.1991).      FRBP 4007(c) provides that dischargeability actions must be filed not later than sixty days after the date first set for the meeting of creditors. Le Sueur's counsel attended the meeting of creditors, and therefore knew (or should have known) exactly when the bar date was. The fact that he may have failed to notice the bar date on the notice to creditors is irrelevant.      Moreover, the Supreme Court in Pioneer based its decision on an interpretation of FRBP 9006(b). Subsection (3) of that rule specifically excludes the bar date contained in FRBP 4007(c). Even where excusable neglect is shown, the court has no power to allow a late dischargeability action. In re Hill, 811 F.2d 484 (9th Cir. 1987).      For the foregoing reasons, the default judgment will be vacated and a judgment dismissing the action with prejudice shall be entered. Scheurer shall recover any costs of suit.
Dated: May 1, 1993                                                                               _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy