Memorandum of Decision Re: Late Dischargeability Complaint

FOR THE NORTHERTN DISTRICT OF CALIFORNIA In re ROLENE MAE BLOOM,                                         No. 1-87-01455      Debtor. ______________________/ SAFECO INSURANCE COMPANY OF AMERICA,      Plaintiff,    v.                                                                              A.P. No. 1-87-0236 ROLENE MAE BLOOM,      Defendant. __________________________/
Memorandum of Decision
     The last day to file dischargeability complaints against the debtor was fixed as December 12, 1987. Plaintiff mailed its complaint to the court on December 7, 1987, but erroneously addressed it to the place where the 341 meeting was held in Santa Rosa rather than to the court's correct mailing address in Eureka. The correct Eureka address was clearly stated on the notice.* Although the complaint was forwarded to the court, it arrived the day after the last day a timely complaint could be filed.      Even upon a showing of excusable neglect, this Court has no power to extend the time for filing a dischargeability complaint once it has passed. In re Hill (9th Cir.1987) 811 F.2d 484. The issue is therefore only whether the complaint can be deemed timely filed when delivered to an address which the court had vacated some months before. For the following reasons, the Court finds that the complaint cannot be deemed timely.      Plaintiff relies on Bankruptcy Rule 5005(b), which allows the Court to deem papers filed as of the date of erroneous delivery to a trustee, attorney for a trustee, bankruptcy judge, district judge, or clerk of the district court. However, in this case the complaint was delivered to none of these. It was received for the first time by a court official only after the deadline had passed.      A dischargeability complaint is deemed filed when it is received by the court, not when it is mailed. In re Peters (Bkrtcy.N.D.Ia.1981) 15 B.R. 598, 601. In a similar case, a dischargeability complaint mailed five days before the deadline but not received by the court until after the deadline was held not timely filed. In re Horvath (Bkrtcy.S.D.N.Y.1982) 20 B.R. 962, 964. The court there noted that a creditor assumes the risk of delayed delivery if it elects to file the complaint by mail rather than in person. 20 B.R. at 966.      The complaint will be dismissed. Counsel for the debtor shall submit an appropriate form of order.
Dated: March 18, 1988                                                                              ________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy Judge
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      *The court had since vacated both premises and moved to a new consolidated location in Santa Rosa. However, mail sent to the proper address in Eureka was generally only one day delayed in forwarding to the new court location. Mail addressed to the 341 hearing site took somewhat l