UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

99-10338

In The Matter Of:

ELIJAH THOMAS DUNLAP, JR.,

Debtor.

____________________

STATE BANK & TRUST, N.A.,

Appellant,

V.

ELIJAH THOMAS DUNLAP, JR.,

Appellee.

____________________

99-11195

____________________

In The Matter Of:

ELIJAH THOMAS DUNLAP, JR.,

Debtor.

___________________

ELIJAH THOMAS DUNLAP, JR.,

Appellee,

V.

SENTRY GROUP SERVICES INC.,

Appellant.

Appeals from the United States District Court
2

for the Northern District of Texas -- Dallas Division

June 29, 2000

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Creditors appeal from final orders issued by the district

court dismissing their nondischargeability complaints as untimely.

Because we disagree with the district court’s interpretation of

FED. R. BANKR. P. 4007(c), we REVERSE and REMAND.

I.

On October 25, 1996, an Oklahoma state court awarded two

judgments against Elijah Thomas Dunlap in civil actions brought by

appellants State Bank & Trust, N.A. (“State Bank”) and Sentry Group

Services, Inc. (“Sentry”). State Bank was awarded a $358,167.73

judgment based upon the court’s finding that Dunlap had committed

fraud and breached his representation of warranty and authority

when he obtained a loan from State Bank. Sentry was awarded a

$941,913.22 judgment for conversion, misappropriation of funds and

breach of fiduciary duty.

On July 3, 1997, Dunlap filed a voluntary Chapter 7 bankruptcy

petition in the United States Bankruptcy Court for the Northern

District of Texas, Dallas Division. Pursuant to the notice

originally issued by the Bankruptcy Court Clerk, and in accordance

with 11. U.S.C. § 341 (1994), the first meeting of creditors (the

“section 341 meeting”) was scheduled for August 11, 1997. The
3

Clerk, in accordance with FED. R. BANKR. P. 4007(c), then calculated

the deadline for the filing of nondischargeability complaints to be

October 10, 1997 -- 60 days after the August 11, 1997, “date first

set for the meeting of creditors held pursuant to § 341(a).” FED R.

BANKR. P. 4007(c). At the debtor’s request, the 341 meeting was

rescheduled for September 5, 1997, but the October 10, 1997, bar

date was not altered.

Dunlap did not appear at the meeting of creditors, instead his

attorney appeared and announced that Dunlap would be filing a

motion to dismiss the bankruptcy. Counsel for Sentry informed

Dunlap’s counsel that an objection to the dismissal would likely be

forthcoming and asked that an order of dismissal not be presented

to the court ex parte. Nevertheless, Dunlap filed his motion, and

on September 15, 1997, the bankruptcy court dismissed the case.

Both appellants moved to vacate the court’s order of dismissal as

premature and in violation of the due process safeguards mandated

by the Bankruptcy Code. See 11 U.S.C. § 707(a)(1994); FED. R. BANKR.

P. 1017(a). On December 2, 1997, the bankruptcy court, concluding

that it had erred in granting debtor’s motion to dismiss without a

hearing and an opportunity for all interested parties to be heard,

reinstated the case and directed Dunlap to reset his motion for a

hearing. Due to a clerical error, the order vacating the dismissal

was not entered until December 15, 1997.

Dunlap never moved to reset his motion to dismiss and the
4

motion ultimately went unresolved. Given Dunlap’s failure to reprosecute his motion to dismiss, on January 12, 1998, the Chapter

7 Trustee set a new date for the first meeting of creditors,

February 6, 1998, and calculated a corresponding bar date for

nondischargeability complaints as April 7, 1998. Later that same

day, the debtor rescheduled the first meeting of creditors for

January 30, 1998, and issued a notice titled “Notice of Continued

Section 341 Meeting.”

Although both dates were docketed by the Bankruptcy Court

Clerk, no formal notice of the dates was issued to interested

parties. Counsel to both appellants obtained the new scheduling

information through consultation by telephone with the Bankruptcy

Court Clerk. On at least three separate occasions in February and

March the creditors were informed that the docket reflected a bar

date of April 7, 1998.

On March 31, 1998, Sentry filed its complaint seeking a

determination that the fraud and embezzlement rendered Sentry’s

judgment nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (4)

(1994). On April 2, 1998, State Bank filed its complaint also

seeking a determination of nondischargeability. Dunlap then moved

to dismiss the adversary proceedings contending that both

complaints were time-barred. A hearing was held on debtor’s motion

on June 23, 1998. The bankruptcy court concluded that the 60-day

window for filing complaints commenced on January 30, 1998, the
1 The language of the rule was amended in 1999 (after all the

relevant events of this case occurred) by eliminating the word

“held” to emphasize that the 60 days runs from the first date set

for the section 341 meeting not the date the meeting actually takes

place. See FED. R. BANKR. P. 4007(c); LAWRENCE P. KING, ET AL., 9 COLLIER

ON BANKRUPTCY § 4007.04[1][a] (15th ed. 1999)(“The drafters

presumably opted for the absolute certainty of such a fixed date

rather than a date which might change one or more times depending

upon the ultimate scheduling of the creditors’ meeting.”). 

A clear majority of courts addressing the complaint filing

deadline under the old Rule 4007(c) concluded that the 60-day

limitations period runs from the date first set for the meeting,

regardless of when the meeting is actually held. See, e.g.,

Peerless Ins. Co. v. Merriell L. Miller (In re Miller), 228 B.R.

399, 401 (B.A.P. 6th Cir. 1999)(“ The majority of cases interpret

Rule 4007(c) to require that the 60-day period runs from the ‘first

date set for the meeting of creditors,’ notwithstanding that the

meeting is continued and actually occurs on a different date. We

concur.”); see also Durham Ritz, Inc. v. Williamson (In re

Williamson), 15 F.3d 1037, 1039 (11th Cir. 1994). In this case,

largely because Dunlap failed to appear at the September 5, 1997,

section 341 meeting, the bankruptcy court ruled that the filing

window ran from January 30, 1998, the date the meeting was actually

held with Dunlap in attendance.

5

date the section 341 meeting was actually “held,” not February 6,

1998, the “first date set for the meeting.”1 The bankruptcy court

determined that the 60-day filing window ended on March 31, 1997,

and accordingly, the court ruled that Sentry’s March 31, 1997,

complaint was timely, but State Bank’s April 2, 1997, complaint was

not. Within its order resolving debtor’s motion to dismiss the

complaints, the bankruptcy court discussed its belief that debtor’s

attempt to dismiss his case should act to toll the running of the

60-day filing period while the bankruptcy court considers the

motion. Under the bankruptcy court’s tolling theory, the clock on

the filing period would not commence again until the section 341
6

meeting of creditors was held on January 30, 1998. Nevertheless,

the suggestion of tolling as an appropriate equitable remedy in

this case did not form the basis for the bankruptcy court’s ruling,

and therefore, was mere dicta.

State Bank appealed the bankruptcy court’s ruling only to have

the district court affirm the dismissal after application of a

tolling rule based in part upon the bankruptcy court’s dicta. But

the district court did not adopt the bankruptcy court’s tolling

proposal wholesale, instead, it determined that “the tolling period

would have ended when Dunlap noticed the January 30, 1998, meeting

of creditors on January 12.” The court concluded that although

debtor’s motion to dismiss was never resolved -- because the debtor

failed to take any action to prosecute the motion after

reinstatement of the case -- the motion could be deemed abandoned

by January 12, 1998. Ultimately, the district court concluded that

the bar date was actually March 13, 1998, 60 days after the motion

to dismiss was deemed abandoned. State Bank took appeal from that

ruling.

Debtor appealed the bankruptcy court’s order finding Sentry’s

complaint timely. The district court, with a different judge

presiding, adopted the reasoning from the order dismissing State

Bank’s complaint as untimely after calculating a bar date of March

13, 1998. Based on the newly calculated complaint filing deadline,

the court ruled that Sentry’s complaint was untimely. Further
7

adding to the procedural confusion, the court incorrectly stated

that “the date first set for the creditors’ meeting was January 12,

1998, not January 30, 1998.” Sentry appealed the district court’s

dismissal of its complaint. On appeal to this Court, both cases

were consolidated.

II.

Since there are no contested issues of fact in this appeal, we

are presented solely with questions of law. We review a bankruptcy

court’s legal rulings and decisions de novo. See Traina v. Whitney

National Bank, 109 F.3d 244, 246 (5th Cir. 1997).

III.

The sole issue before us is how to determine the bar date for

the filing of nondischargeability complaints after a bankruptcy

court has dismissed the case. There is no controlling Fifth Circuit

precedent, and our sister circuits have not yet addressed the

issue. Accordingly, we turn first to the relevant provision of the

Bankruptcy Rules, FED. R. BANKR. P. 4007(c), which provides:

A complaint to determine the dischargeability of a debt

pursuant to § 523(c) of the Code shall be filed no later

than 60 days following the first date set for the meeting

of creditors held pursuant to § 341(a). The court shall

give all creditors no less than 30 days' notice of the

time so fixed in the manner provided in Rule 2002. On

motion of any party interest, after hearing on notice,

the court may for cause extend the time fixed under this

subdivision. The motion shall be filed before the time

has expired.
8

FED. R. BANKR. 4007(c)(emphasis added).

Rule 4007(c) must be read in conjunction with Rule 9006(b)(3)

which permits a bankruptcy court to “enlarge the time for taking

action under [Rule 4007] . . . only to the extent and under the

conditions stated in [that rule].” FED. R. BANKR. P. 9006(b)(3).

The strict time limitation placed upon creditors who wish to object

to a debt’s dischargeability reflects the Bankruptcy Code’s goal of

providing debtors with a fresh start. See Matter of Ichinose, 946

F.2d 1169, 1172 (5th Cir. 1991); see also Neeley v. Murchison, 815

F.2d 345, 346 (5th Cir. 1987)(Rule 4007(c) “evince[s] a strong

intent that the participants in bankruptcy proceedings be assured

that, within the set period of 60 days, they can know which debts

are subject to an exception to discharge.”). Also, “[t]his fixed,

relatively short limitation period enables the debtor and creditors

to make better-informed decisions early in the [] proceedings.”

Neeley, 815 F.2d at 346-47. In evaluating the various rules for

interpreting Rule 4007(c) proffered by the parties and the courts

below, we seek a rule that best preserves the integrity of the

fixed 60-day window following the section 341 meeting of creditors,

facilitates informed decision making by creditors, and allows

creditors sufficient unequivocal information to calculate the bar

date with certainty.

Like the bankruptcy and district courts below, we can quickly

discard debtor’s proffered rule for interpreting Rule 4007(c).
2 Creditors argue first for the application of Coston to the

case at bar. Alternatively, they advance numerous equitable

arguments for reversal. Because we adopt the reasoning of Coston

as the basis for our holding, we need not consider these equitable

arguments.

9

Debtor argues that the “date first set” language must refer to

August 11, 1997, the original setting for the meeting of creditors,

with the corresponding bar date of October 10, 1997. Under

debtor’s theory, the deadline passed during the three-month period

in which the case was dismissed. Purportedly, the creditors could

have taken steps to protect themselves by filing motions and

complaints with the court despite the dismissal and the fact that

the debtor had never appeared for examination by the creditors at

the section 341 meeting. While debtor’s rule offers the certainty

of a fixed filing period of 60 days, it would precipitate a barrage

of prophylactic filings in all cases dismissed before the complaint

deadline, and would thus burden both creditors and the courts with

unnecessary expense and effort.

Creditors argue that this case is best resolved by application

of the rule set forth in the analogous case Coston v. Bank of

Malvern, 987 F.2d 1096 (5th Cir. 1992), in which we held that the

60-day period for filing nondischargeability complaints did not run

from the scheduled date of the first meeting of creditors where the

proceedings were stayed due to pendency of a related action in

another state.2 In Coston, two creditors filed a petition in the

Bankruptcy Court for the Western District of Arkansas forcing the
10

Costons into involuntary bankruptcy. The following day, the

Costons filed a voluntary petition in the Bankruptcy Court for the

Eastern District of Texas. One of the creditors then filed a

notice of stay, pursuant to FED. R. BANKR. P. 1014(b), with the Texas

bankruptcy court and the case was stayed pending disposition of the

Arkansas case. However, prior to the stay, the Texas bankruptcy

court had already scheduled the first meeting of creditors for

March 1, 1989. Due to the stay, the Texas court canceled the

meeting and put all other proceedings on hold.

On May 10, 1989, the Arkansas bankruptcy court entered an

order dismissing the involuntary bankruptcy case, thus reactivating

the Texas voluntary case. The court then rescheduled the meeting

of creditors which was held on July 10, 1989. Within 60 days of

the July 10, 1989, meeting, one of the creditors filed a

nondischargeability complaint. The Costons sought to have the

complaint dismissed as untimely because it was not filed within 60

days of the originally scheduled March 1 meeting. The Costons,

like Dunlap, argued that not only had the bar date passed during

the stay, but that no new date could be set subsequent to the stay

and revival of the case. We did not find this argument persuasive,

and explained why rescheduling a new bar date was necessary:

Once the notice of stay was recognized by the court in

Texas, that court's proceeding was on hold indefinitely until the

stay was lifted and the proceeding in Arkansas dismissed. Only

when that occurred and a date was set for the initial meeting of

creditors did the sixty days begin to run. In the stay situation,
11

the new date set by the court is the "first date" under Rule

4007(c); it is not merely a rescheduling of the old pre-stay date.

Facially, this ruling may appear to contradict the

wording of Rule 4007(c). But, in light of Rule 1014(b),

no other result is sensible or possible. The Bank cannot

be penalized because it did not comply with a filing

deadline of a court whose proceedings had been stayed.

To suggest that even though the court's proceedings on

the Costons' case had been stayed under Rule 1014(b), its

filing deadline under Rule 4007(c) continued to run is

ludicrous.

Coston, 987 F.2d at 1099.

The district court dismissed Coston as inapplicable to the

case sub judice by suggesting that a “premature dismissal” of the

case failed to generate the same consequences as a stay pursuant to

FED. R. BANKR. P. 1014(b). The court went on to imply that because

State Bank recognized the bankruptcy court’s error in granting the

ex parte dismissal, State Bank should have taken some measures to

protect itself. To the contrary, we believe the case for

rescheduling the section 341 meeting and recalculating the bar date

is far more compelling when a bankruptcy case has been dismissed

rather than merely stayed. Resetting the meeting of creditors and

the complaint filing deadline preserves the integrity of the 60-day

period and allows creditors sufficient unequivocal information to

calculate the bar date with certainty. 

With this bright-line rule in mind, the deficiencies of a

tolling rule, like that applied by the district court, are evident.
3 The debtor also cites these cases as supporting his

contention that the bar date passed during the three-month period

in which the case was dismissed. Neither case supports this

contention. The sole issue in Neeley and In re Sam was whether the

court clerk’s failure to give a creditor the 30-day notice of

dischargeability required under Rule 4007 excused the filing of

complaints outside the 60-day window provided in Rule 4007(c).

These cases tell us nothing about the calculation of the bar date

following dismissal and reinstatement of a bankruptcy case.

12

First, there is no provision for a tolling regime found in the

relevant portions of the Bankruptcy Code or Rules. Instead, a new

rule had to be crafted based largely upon the equitable

considerations elaborated upon by the bankruptcy court. There is

similarly no provision for a tolling rule to be found in any of our

earlier decisions. Debtor, who supports application of a tolling

rule as an alternative argument, cites to our decisions in Grossie

v. Sam (In re Sam), 894 F.2d 778 (5th Cir. 1990), and Neeley v.

Murchison, 815 F.2d 345 (5th Cir. 1987), as supporting application

of a tolling regime, when in fact they are silent on the issue.3

Second, a tolling rule fails to comport with the purpose of

Rule 4007(c), namely to establish a “fixed, relatively short

limitation period” for creditors to act after the section 341

meeting. In this case, confusion in applying a tolling rule stems

from the uncertainty surrounding the date the limitation period

recommenced: did the 60-day clock start anew on December 2, 1997,

the day the order vacating the dismissal was signed; December 15,

1997, the day the order was entered on the docket; January 12,

1998, the day the motion to dismiss was deemed abandoned; or
4 Debtor fails to explain how creditors, or the trustee for

that matter, could be expected to make “better-informed decisions”

without having first examined the debtor at the section 341 meeting

as contemplated by the Bankruptcy Code.

13

January 30, 1998, the day the meeting of creditors was finally

held? The tolling theories advanced by the debtor, the bankruptcy

court (in dicta), and the district court all result in different

complaint deadlines, ranging from January 11, 1998, to March 31,

1998. The harshest tolling theory is advanced by the debtor.

According to debtor’s calculations, the bar date would be tolled

only until January 11, 1998, despite the fact that the 341 meeting

of creditors would not take place until January 30, 1998.4 It is

difficult to see how a rule that could allow a complaint filing

deadline to precede the meeting of creditors, the benchmark for

calculating the 60-day filing period, could possibly comport with

the purpose of Rule 4007(c) to allow informed decision making early

in the proceedings. A tolling rule avoids the need for

prophylactic filings, but only at the expense of the certainty

provided by a fixed 60-day filing period. We see no reason to

believe that the amorphous nature of an equitable tolling rule

would likely result in any less confusion when applied in other

cases. In sum, a tolling rule finds no support in the Bankruptcy

Code and holds little promise of providing an efficient and certain

procedural rule of law.

Conversely, application of the Coston rule best preserves the
14

integrity of the 60-day period following the meeting of creditors,

facilitates informed decision making by creditors, and allows

creditors sufficient unequivocal information to calculate the bar

date with certainty. Resetting the meeting of creditors and the

complaint filing deadline will also forestall the one certainty a

tolling rule would provide -- namely, an inevitable fusillade of

creditors’ calls to the Bankruptcy Court Clerk seeking confirmation

of their bar date calculations. Instead, a bright-line rule based

on the new first meeting of creditors eliminates creditor

guesswork, strictly adheres to the language of Rule 4007(c), and

does not conflict with precedent of this Court.

In the instant case, the Bankruptcy Court Clerk rescheduled

the section 341 meeting for February 6, 1998, and recalculated the

bar date as April 7, 1998. Although the meeting of creditors was

subsequently moved forward, February 6, 1998 remained the new

“First date set” under Rule 4007(c), and consequently, the bar date

was correctly docketed as April 7, 1998. Because both creditors

made their filings before April 7, 1998, both were timely.

IV.

For the reasons set forth above, we REVERSE and REMAND both

district court orders dismissing as untimely creditors

nondischargeability complaints with instructions to remand both

cases to the bankruptcy court for further proceedings consistent

with this order.