IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JAMES WHITMAN, No. 92-12909
DAVID and JUDY RAMPONI,
v. A.P. No. 93-1246
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 _______________________