Memorandum of Decision Re: Omitted Creditor

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re CHERYL HILLERY-STEWART,                                       No. 1-89-02013      Debtor(s). ______________________________________/ CHERYL HILLERY-STEWART,      Plaintiff(s),    v.                                                                                      A.P. No. 99-1144 COUNTY OF CONTRA COSTA, et al.,      Defendant(s). _______________________________________/
     The issue in this case is the dischargeability of child support obligations not scheduled when the debtor filed her Chapter 7 petition in 1989. The debtor has brought a motion for summary judgment arguing only that it is not too late to seek discharge of the debt because there was no distribution to creditors in the case 10 years ago.      The debtor assumes that the debt in question would have been discharged if it had been timely scheduled. This is by no means certain and the court will expect the issue to be briefed when and if this matter comes on for adjudication.      The current motion is fatally flawed, in that establishes as fact only that no assets were distributed to creditors. If a claims bar date was set in the case, then it is too late to seek discharge of the debt even if there was no dividend. In re Laczko, 37 B.R. 676, 678-79 (9th Cir.BAP 1984), aff'd 772 F.2d 912 (9th Cir. 1985). Only if no claims bar date was ever set is there a possibility that the issue of dischargeability can be raised so long after the case was closed.(1)      Assuming that the debtor can establish that there never was a bar date, the court will expect the parties to address the following issues: 1. Was the debt existing in 1989 dischargeable under the law at that time? 2. Why should the 1995 and 1996 orders, which appear to relate to debt incurred after 1989, be subject to the discharge in the 1989 case? 3. Is there any time limit on actions to enforce a discharge against an omitted creditor? Has there been any prejudice to the County or the child?      The debtor having failed to establish the lack of a claims bar date in the 1989 bankruptcy, and having failed to address the above issues, her motion will be denied without prejudice. Either side may submit an appropriate form of order.
Dated: November 5, 1999                                                                               ____________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      United States Bankruptcy Judge

1. Just because the case was originally noticed without a bar date does not mean that there was never a bar date. See FRBP 3002(