UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

In re: Alton Anthony Kelly, Case No. 16-33655-KLP 

 Debtor. Chapter 7 

Cynthia Y. Prosise, 

 Plaintiff, 

v. Adv. Pro. No. 16-03330-KLP 

Alton Anthony Kelly, 

 Defendant. 

MEMORANDUM OPINION 

 This matter comes before the Court on the motion of Alton Anthony 

Kelley (the “Debtor” or “Defendant”) to dismiss this adversary proceeding 

(the “Motion”). The Debtor asserts that the Complaint must be dismissed 

because it was filed after expiration of the applicable deadline. A hearing on 

the Motion was held on January 11, 2017. 

I. Jurisdiction 

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b) and 

157(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) and (J). 

II. Background 

The Debtor filed his chapter 7 case on July 25, 2016. In the schedules 

filed in his case, the Debtor listed plaintiff Cynthia Y. Prosise (“Plaintiff” or 

“Prosise”) as a nonpriority unsecured creditor with a judgment claim of 

$62,500. The debt was not listed as contingent, unliquidated or disputed. 

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On July 28, 2016, the clerk mailed the “Notice of Chapter 7 

Bankruptcy Case - - No Proof of Claim Deadline” (Official Form 309A) 

(hereinafter referred to as “Form 309A”) to all creditors, including Prosise, 

designating August 23, 2016, as the date for the meeting of creditors and 

designating October 24, 2016 as the final date to object to discharge or to 

challenge whether certain debts are dischargeable.1

On October 24, 2016, Prosise, acting pro se, caused a document (the 

“Initial Filing”) to be filed in the Debtor’s bankruptcy case. The Initial Filing, 

which was signed by Prosise and dated October 23, 2016, stated: 

Alton Kelly should not be allowed to file bankruptcy because he 

has been dishonest about his assets. Mr. Kelly has a company 

named All Remodeling that I made checks out to for an 

extensive remodeling job. Checks totaling $70,000 were made 

payable to Alton Kelly/All Remodeling. 

Mr. Kelly was paid $70,000 to renovate my grandmother’s home 

that caught on fire. He did not complete the job, stole material 

and did not pay all of the subcontractors. I asked Mr. Kelly 

about the missing material, unpaid workers, and the unfinished 

job. He became very upset and verbally abusive. After 

unsuccessfully working with him, I sought legal help. He was 

asked to itemize his work material. He listed a ladder, saw, 

hammer and a drill. He did not mention the new truck. He did 

not mention the rest of the tools. I struggled financially to 

complete the house and pay the contractors. The mental stress 

became unbearable at times especially when I felt as if he was 

taunting me by continuously drive by my home in his new truck 

and parking down the street. From the legal proceeding, I also 

found out that he was misleading about the type of contracting 

license he had. 

 

1 This deadline was set pursuant to Rules 4004(a) and 4007(c) of the Federal Rules 

of Bankruptcy Procedure, Fed. R. Bankr. P. 4004(a) and 4007(c), which provide that 

a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 

523(c) or objecting to a debtor’s discharge shall be filed no later than 60 days after 

the first date set for the meeting of creditors. 

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I am disputing Alton Kelly’s bankruptcy filing due to the 

nondisclosure of all his assets. 

The Initial Filing was accompanied by no other document. Prosise did not 

pay a filing fee at the time she made the Initial Filing. 

On November 3, 2016, Prosise caused additional documents to be filed 

in the Debtor’s bankruptcy case (the “Second Filing” or the “Complaint”). 

These documents, including an Adversary Proceeding Cover Sheet (the 

“Cover Sheet”), were accompanied by the payment of a filing fee in the 

amount of $350, the required fee for the commencement of an adversary 

proceeding. The Cover Sheet was signed by Prosise and contained the 

following language in the space designated “Write a Brief Statement of Cause 

of Action, Including all U.S. Statutes Involved:” 

I Cynthia Prosise, would like the court to halt the proceeding of 

Mr. Kelly bankruptcy case # 16-33655 due to fraud. According to 

US Code 727(a)(2), 727(a)(3) Mr. Kelly took $70,000.00 to buy 

material after signing a contract, then walking off the job 

without returning the money. Mr. Kelly also gave me business 

cards. BBB statment saids that Mr. Kelly owe me $62,500.00. 

He acted dishonest look at US 523(a)(2), 523(a)(4) and Va. Code 

43-13 Mr. Kelly did not know how to repair my house. 

[sic]. In addition to the Cover Sheet, the Second Filing included 1) a 

document entitled “Arbitration Decision” that contained the factual findings 

and decision of an Arbitrator in connection with a complaint Prosise filed 

with the Dispute Resolution Center of the Better Business Bureau 

Foundation, 2) a copy of a contract proposal, and 3) copies of three checks 

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made out by Prosise that were payable to the Debtor in the total amount of 

$70,000.00. 

III. Discussion 

 The Debtor contends the Complaint must be dismissed, arguing that 

Prosise did not timely file her complaint objecting to the discharge of a debt 

until nine days following the deadline imposed by Rule 4004(a).2 Prosise does 

not dispute that she received Form 309A prior to the expiration of the 

deadline and contends that the Initial Filing was sufficient to comply with 

the October 24, 2016, deadline. The Court must determine whether the 

Initial Filing timely commenced an adversary proceeding to contest the 

Debtor’s discharge under § 727(a) and the dischargeability of his debt to 

Prosise pursuant to § 523(a)(2) or (4). If not, then the Court must decide 

whether the deadline may be equitably tolled. 

a. Standard of Review 

The sole basis for the Motion is that Prosise failed to timely commence 

her action. The Debtor does not contend that the Initial Filing was filed after 

the applicable deadline nor does he assert that the Initial Filing lacks 

sufficient factual allegations to state a claim for relief.3 Nevertheless, 

 

2 The Motion miscalculates the lapse between the Plaintiff’s filings, asserting that 

the filing was made nine days after the deadline, when actually the lapse was ten 

days. The Motion also neglects to acknowledge that the Plaintiff is asserting a 

request for denial of discharge pursuant to § 727(a) of the Bankruptcy Code in 

addition to objecting to the discharge of a debt. 

3 See Rule 12(b)(6) of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 12(b)(6), 

made applicable pursuant to Rule 7012 of the Federal Rules of Bankruptcy, Fed. R. 

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implicit in the Debtor’s position is the contention that in addition to the 

Plaintiff’s failure to pay the filing fee and comply with certain local rules, the 

Initial Filing fails to meet federal pleadings requirements. Therefore, the 

Court will first determine whether the Plaintiff’s pleadings are sufficient 

under Rule 8(a)(2) of the Federal Rules of Civil Procedure4 and the Supreme 

Court’s holdings in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007). If the Initial Filing is deficient, then 

the Court must consider the implications of the Second Filing and whether 

the Second Filing relates back to the Initial Filing. 

Alternatively, the Court will consider whether the doctrine of equitable 

tolling applies in this case. If the Court were to determine that the deadline 

should be extended to the date of the Second Filing under equitable tolling 

principles, the relevant analysis would again focus on the sufficiency of the 

Second Filing5. 

b. The Initial Filing 

The Initial Filing includes the Plaintiff’s statement that the Debtor 

“should not be allowed to file bankruptcy because he has been dishonest 

about his assets” and the allegation that the Plaintiff paid the Debtor and his 

company $70,000 for “an extensive remodeling job.” The Initial Filing also 

 

Bankr. P. 7012. See also Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544 (2007). 

4 Made applicable pursuant to Rule 7008 of the Federal Rules of Bankruptcy 

Procedure, Fed. R. Bankr. P. 7008. 

5 The party asserting equitable tolling bears the burden of proving its applicability. 

In re McConkey, No. 08-25164-JS, 2011 WL 1436431, at *5 n.11 (Bankr. D. Md. 

April 14, 2011). 

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identifies specific assets that the Debtor failed to disclose and further alleges

that the Debtor misrepresented the status of his contractor’s license, stole 

materials, failed to pay subcontractors, and failed to complete a contract to 

repair fire damage to the Plaintiff’s grandmother’s home. 

Rule 8 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 8, sets 

forth the general rules of pleading and the essential components of a 

complaint. Rule 8(a)(2) “requires only a short and plain statement of the 

claim showing that the pleader is entitled to relief, in order to give the 

defendant fair notice of what the ... claim is and the grounds upon which it 

rests.” Twombly, 550 U.S. at 555 (internal citations omitted). However, a 

complaint must contain “[f]actual allegations [sufficient] to raise a right to 

relief above the speculative level.” Id.; see also Iqbal, 556 U.S. at 678 

(holding that a complaint does not suffice “if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’”) (quoting Twombly, 550 U.S. at 

557). 

Although the Initial Filing does not identify the specific provisions of 

the Bankruptcy Code relied upon, it nevertheless serves notice that the 

Plaintiff is challenging the Debtor’s entitlement to a discharge and disputing 

the dischargeability of her claim, in addition to outlining her reasons for 

doing so. Thus, the Initial Filing appears to satisfy Rule 8(a)(2)’s “fair notice” 

requirement as well as the requirement to raise a plausible claim for relief. 

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Despite the defects in form,6 the Court finds that the Initial Filing satisfies 

the minimal requirements of Rule 8(a).7

The Debtor’s primary assertion is that the Initial Filing is deficient 

because the Plaintiff did not at the time of filing pay the filing fee and file a 

cover sheet, as required by the local rules of this Court. Rule 7054-1(B) of the 

Local Rules of the U.S. Bankruptcy Court for the Eastern District of Virginia 

generally requires that costs due the Clerk in adversary proceedings be paid 

in advance.8 Local Bankruptcy Rule 7003-1 requires litigants, including pro 

se litigants, to file a properly completed adversary proceeding cover sheet at 

the time of filing an adversary proceeding.9 The Debtor contends that an 

adversary proceeding has not been commenced until these requirements have 

been satisfied. 

 

6 See Fed. R. Bankr. P. 7010. 

7 Federal Rule of Civil Procedure 8(d)(1), Fed. R. Civ. P. 8(d)(1) (made applicable 

pursuant to Rule 7008 of the Federal Rules of Bankruptcy Procedure, Fed. R. Bankr. 

P. 7008), specifies that no technical form is required for a pleading. Rule 8(e) 

provides that “[p]leadings must be construed so as to do justice.” Bankruptcy courts, 

similar to others, may afford some amount of discretion to pro se parties and 

construe allegations in a pro se complaint liberally. See Hughes v. Rowe, 449 U.S. 5, 

9 (1980); Erickson v. Pardus, 551 U.S. 89 (2007); Polidi v. Banno., No. 1:16-cv-1535, 

2016 WL 8135476 (E.D. Va. Dec. 28, 2016) (citing Thomas v. Salvation Army S. 

Territory, 841 F.3d 632, 637 (4th Cir. 2016)); Lisowski v. Davis (In re Davis), 312 

B.R. 681 (Bankr. D. Nev. 2004); Rupert v. Krautheimer (In re Krautheimer), 210 

B.R. 37 (Bankr. S.D.N.Y. 1997). Cf. Dozier v. Parker, 2009 WL 1147916, at * 4-5 

(E.D. Va. 2009) (stressing need for pro se complaints to assert factual allegations 

and not simply conclusory opinions). 

8 28 U.S.C. § 1914(c) provides that “[e]ach district court by rule or standing order 

may require advance payment of fees.”

9 See also Local Bankruptcy Rule 5005-1 (D)(2) (“Each complaint commencing an 

adversary proceeding must be accompanied by: (a) the proper filing fee and (b) a 

properly completed Adversary Proceeding Cover Sheet . . . .”). 

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Rule 3 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 3,10

provides that an action is “commenced by filing a complaint with the court.” 

Rule 5(d)(2)(A)of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 

5(d)(2)(A),11 states that a paper is “filed” by delivering it to the clerk. The 

Initial Filing was delivered to and accepted by the Clerk on October 24, 2016, 

the last day allowed for filing dischargeability complaints.12 The Plaintiff’s 

failure to pay the filing fee and provide the Cover Sheet at the time of filing, 

both of which were remedied within ten days, did not foster delay nor 

prejudice the Defendant. As such, these omissions did not affect the 

timeliness of the Initial Filing.13 

c. The Second Filing 

The Second Filing occurred on November 3, 2016, and was 

accompanied by payment of the adversary proceeding filing fee and a 

completed Cover Sheet. Prosise utilized the “fill in the blank” structure of the 

Cover Sheet to cure most of the defects in form contained in the Initial Filing, 

such as the caption and reference to the related case. The Second Filing 

identifies the statutes involved, the nature of the suit, includes a monetary 

 

10 Made applicable pursuant to Rule 7003 of the Federal Rules of Bankruptcy 

Procedure, Fed. R. Bankr. P. 7003. 

11 Made applicable pursuant to Rule 7005 of the Federal Rules of Bankruptcy 

Procedure, Fed. R. Bankr. P. 7005. 

12 Prior Local Bankruptcy Rule 5005-1(F), which required the Clerk’s Office to reject 

filings not accompanied by the proper filing fee, was repealed before the filings in 

this case took place. 

13 See Ecker v. Replogle (In re Replogle), 70 B.R. 444 (Bankr. D. Mont. 1987) (clerk’s 

failure to file complaint submitted within the prescribed deadline because of 

noncompliance with local rules requiring payment of filing fee and submission of 

completed cover sheet did not render filing of dischargeability complaint untimely). 

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demand and was signed by the Plaintiff. The Second Filing includes a copy of 

an arbitration decision, a copy of the Defendant’s contract proposal, and 

evidence of payment by the Plaintiff to the Defendant.14 These documents 

provide more factual details and explicitly set forth the statutory basis for the 

Plaintiff’s claims without altering the original claims set forth in the Initial 

Filing. 

Rule 15(a)(1) of the Rules of Civil Procedure, Fed. R. Civ. P. 15,15

permits a party to amend its pleadings once as a matter of course within 21 

days after serving it or within 21 days after service of a responsive pleading 

or motion under Rule 12(b). The Second Filing occurred ten days after the 

Initial Filing and before the filing of the Motion. Therefore, no leave of court 

was required. 

Rule 15(c)(1)(B) provides that an amendment to a pleading relates 

back to the date of the original pleading when the amendment asserts a claim 

that arose out of the occurrence set out “or attempted to be set out” in the 

original pleading. The Fourth Circuit has articulated a two-prong analysis to 

determine whether an amendment relates back to the original pleading. The 

court must consider (1) whether there is a factual nexus between the 

amendment and the original complaint and (2) if there is some factual nexus, 

the amended claim is liberally construed to relate back to the original 

 

14 “A copy of a written instrument that is an exhibit to a pleading is a part of the 

pleading for all purposes.” Fed. R. Civ. P. 10(c), made applicable by Fed. R. Bankr. 

P. 7010. 

15 Made applicable pursuant to Rule 7015 of the Federal Rules of Bankruptcy 

Procedure, Fed. R. Bankr. P. 7015. 

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complaint if the defendant had notice of the claim and will not be prejudiced 

by the amendment. Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir.1983), aff’d

on other grounds 468 U.S. 42 (1984). See also Tucker v. School Board, No. 

2:13cv530, 2014 WL 5529723, at * 1 (E.D. Va. Oct. 31, 2014). Applying the 

Fourth Circuit’s analysis, the Second Filing relates back to the Initial Filing 

because 1) there is a factual nexus between the pleadings and 2) the 

Defendant has notice of the claims and is not prejudiced by the amendment. 

The Ninth Circuit Bankruptcy Appellate Panel’s decision in Mission 

Viejo National Bank v. Englander (In re Englander), 92 B.R. 425 (B.A.P. 9th 

Cir. 1988), involved facts similar to those in this case. There, a creditor 

timely filed a complaint to determine the dischargeability of a debt but 

merely recited the applicable statute without alleging specific facts. The 

defendant filed a motion to dismiss pursuant to Rule 12(b)(6), alleging that 

the plaintiff had failed to state a claim. In response, and after the bar date, 

the creditor filed an amended complaint containing more factual allegations 

and a more specific claim for relief. The trial court dismissed the amended 

complaint for failure to state a claim upon which relief may be granted. The 

appellate court agreed that the initial complaint was deficient, but held that 

the amended complaint, which it deemed adequate, related back to the date 

of the original pleading because it was “sufficiently identifiable with the 

original claim since the clear subject of both complaints is the 

dischargeability of specific loans.” Id. at 428. The court explained that its 

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ruling avoided the “harsh penalty of dismissal” while recognizing the “more 

liberal approach to pleading fraud in bankruptcy cases because of the short 

time frame in which such complaints must be filed.” Id. 

This Court concurs with the bankruptcy appellate panel’s observation 

in Englander that dismissal is a “harsh penalty and lesser sanctions should 

be explored.” Id. at 429 (citing Udom v. Fonseca, 846 F.2d 1236, 1238 (9th 

Cir.1988)). Similar to Englander, the Second Filing is sufficiently 

identifiable with the Initial Filing because the subject of both pleadings is the 

objection to the Debtor’s discharge and the dischargeability of the debt owed 

to the Plaintiff. Accordingly, the Court finds that the Second Filing relates 

back to the Initial Filing and, to the extent that the Initial Filing may be 

considered deficient, cures any deficiencies relating to the substance of the 

Initial Filing. 

d. Equitable Tolling 

The Court acknowledges that while the time limits set forth in the 

bankruptcy rules are generally subject to extension for “cause” when a 

request is made before the time has expired and for “excusable neglect” when 

the request is made after the time has expired,16 the time limits for filing 

discharge or dischargeability complaints may be enlarged “only to the extent 

and under the conditions stated in” Bankruptcy Rules 4004(b) and 4007(c). 

Fed. R. Bankr. P. 9006(b)(3), Fed. R. Bankr. P. 9006(b)(3). See Peyton v. 

Mohtasham (In re Ghanei), Adv. No. 04-1211, 2004 WL 3464153, at *3 

 

16 See Fed. R. Bankr. P. 9006(b)(1). 

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(Bankr. E.D. Va. 2005). Fed. R. Bankr. P. 4004(b) and 4007(c) allow the time 

limit for filing dischargeability complaints to be extended “for cause” but only 

if an extension motion is filed “before the time has expired.” 2004 WL 

3464153, at *2. Prosise did not request an extension of time to file a 

complaint under §§ 523(a) and 727(a), and the Court cannot retroactively 

extend the deadline for excusable neglect. Id. 

The Court may, however, consider the appropriateness of applying 

equitable tolling to extend the time period to bring a dischargeability 

complaint.17 In In re Ghanei, Judge Mitchell examined the circumstances 

and cases in which equitable tolling has been applied to avoid dismissal 

based on a party’s failure to timely assert its claim. Judge Mitchell prefaced 

his analysis by observing that the time limits imposed by Bankruptcy Rules 

4004(a) and 4007(c) are not jurisdictional and thus are subject to equitable 

tolling. Id. at *2 (citing Young v. United States, 535 U.S. 43, 49 (2002), for 

the proposition that “the application of equitable tolling in bankruptcy 

proceedings is particularly appropriate since bankruptcy courts are courts of 

equity and apply the principles and rules of equity jurisprudence.”) 

Judge Mitchell pointed to the five-factor test adopted by the Sixth 

Circuit in Nardei v. Maughan (In re Maughan), 340 F.3d 337 (6th Cir. 2003), 

 

17 In Farouki v. Emirates Bank Int’l, Ltd. 14 F.3d 244 (4th Cir. 1994), the Fourth 

Circuit stated that “[r]ule 4004(a) does not preclude the bankruptcy court from 

exercising its equitable powers in extraordinary cases.” Id. at 248. Other courts 

have applied this analysis to Rule 4007(c). See In re Paterno, Adv. Pro. No. 15-9008, 

2015 WL 5578620 (Bankr. M.D.N.C. 2015).

. 

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requiring courts considering equitable tolling to determine: “(1) lack of 

actual notice of filing requirement; (2) lack of constructive knowledge of filing 

requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to 

the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of 

the notice requirement.” Id. at 344. Another case noted by Judge Mitchell 

suggests that equitable tolling may occur when the plaintiff has timely 

asserted his or her rights mistakenly in the wrong forum. In re Rowland, 275 

B.R. 209, 216 (Bankr. E.D. Pa. 2002). 

More pertinent to the instant case, the Supreme Court has indicated 

that equitable tolling may apply where the claimant has actively pursued his 

legal remedies but filed a defective pleading. 

 Federal courts have typically extended equitable relief 

only sparingly. We have allowed equitable tolling in 

situations where the claimant has actively pursued his 

judicial remedies by filing a defective pleading during the 

statutory period, or where the complainant has been 

induced or tricked by his adversary's misconduct into 

allowing the filing deadline to pass. We have generally 

been much less forgiving in receiving late filings where 

the claimant failed to exercise due diligence in 

preserving his legal rights. 

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (footnotes omitted). 

Though the circumstances in which the application of equitable tolling are 

limited, the case law reflects that its use has generally been extended to 

instances where a party’s failures cannot be attributed to its own 

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dilatoriness.18

As an alternative basis for denying the Motion, the Court finds that 

Prosise actively pursued her appropriate judicial remedies during the 

statutory period. The Court further finds that even if the Prosise filed a 

defective pleading in the form of the Initial Filing, the Debtor has not been 

prejudiced by the ten day delay between the Initial Filing and the Second 

Filing. For that reason, the Court would apply equitable tolling to extend the 

deadline to file a complaint pursuant to §§ 727(a) and 523(c) until the date of 

the Second Filing. 

Conclusion 

For the foregoing reasons, the Motion is denied. The Court finds that 

the Initial Filing satisfies the pleading requirements of Fed. R. Bankr. P. 

7008(a) and was filed with the Clerk’s Office within the deadlines set forth in 

Fed. R. Bankr. P. 4004(a) and 4007(c). The Court further finds that the 

Second Filing relates back to the Initial Filing under Fed. R. Bankr. P. 

7015(c). Alternatively, the Court finds that equitable tolling applies to 

extend the deadline for filing a complaint objecting to the Debtor’s discharge 

or to the dischargeability of a debt until November 3, 2016, the date of the 

Second Filing. 

 

18 More recently, the Bankruptcy Court for the Middle District of North Carolina 

declined to invoke equitable tolling when a creditor failed to timely file a 

dischargeability complaint in a Chapter 11 case, noting that the creditor neglected to 

avail itself of numerous possible avenues to pursue its legal remedies prior to the 

discharge. In re Paterno, Adv. Pro. No. 15-9008, 2015 WL 5578620, at *5 (Bankr. 

M.D.N.C. 2015)

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A separate order shall issue. 

Dated: March 29, 2017 

 /s/ Keith L. Phillips 

 United States Bankruptcy Judge 

Copies: 

Alton Anthony Kelly 

4808 Annlyn Drive 

Sandston, VA 23150 

Laura Taylor Alridge 

Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230-1588 

Christopher John Flynn 

Boleman Law Firm 

P.O. Box 11588 

Richmond, VA 2323 

Bruce E. Robinson 

P.O. Box 538 

South Hill, VA 23970-0538 

Entered on Docket: March 29, 2017

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