1

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

____________________________________

)

IN RE: ) Bankruptcy No. 14-23098-CMB

)

JEFFREY D. ABRAMOWITZ, ) Chapter 7

)

Debtor. )

____________________________________)

)

MYRNA COHEN, ) Related to Doc. No. 44

)

Movant, )

)

v. )

)

JEFFREY D. ABRAMOWITZ, )

)

Respondent. )

____________________________________)

MEMORANDUM OPINION

The matter before the Court is the Motion for Relief from Judgment or Order (“Motion”) 

filed by Myrna Cohen (“Movant”).

1 The Motion, filed pursuant to Fed.R.Bankr.P. 9024 and 

Fed.R.Civ.P. 60, seeks relief from the Order granting Debtor a discharge with respect to a civil 

judgment against Debtor and a legal malpractice action against Debtor. In response to the 

Motion, Debtor filed his Answer to Motion for Relief from Judgment or Order (“Response”).2 A 

hearing on the Motion was held on March 31, 2015, at which time the Court took the matter 

 1 This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§157 and 1334. This is a core 

matter pursuant to 28 U.S.C. §157(b)(2)(A), (I), and (J), and the Court will enter final judgment. 

However, if the United States District Court determines pursuant to the rationale set forth in Stern v. 

Marshall, 131 S.Ct. 2594 (2011), that this Court does not have the authority to enter final judgment, then 

the Memorandum Opinion and Order entered shall constitute this Court’s recommendation to the District 

Court. 

2 Subsequently, Debtor filed a Supplemental Post-Hearing Answer to Motion for Relief from 

Judgment or Order and Withdrawal of All Previous Consents to Said Motion and Prior Motions 

(“Supplemental Response”) in an apparent attempt to clarify his position. See Doc. No. 52.

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under advisement. Thereafter, upon determining that certain issues required briefing, this Court 

entered an Order dated April 8, 2015 (“Briefing Order”) setting forth the matters to be briefed. 

The Briefing Order provided, inter alia, that:

No hearing will be held following briefing unless separately scheduled by the 

Court. If the parties seek a hearing prior to this Court rendering a decision on the 

Motion, a motion requesting a hearing shall be filed on or before the briefing 

deadline; otherwise, the Motion will be taken under advisement as of May 9, 

2015.

See Doc. No. 51. As the parties have submitted their briefs and neither filed a motion requesting

a hearing, the matter is ripe for decision. For the reasons set forth herein, this Court finds that the 

Motion must be denied.

Background and Procedural History

The above-captioned bankruptcy case was commenced by the Debtor on July 31, 2014.

On August 1, 2014, this Court issued the Notice of Chapter 7 Bankruptcy Case, Meeting of 

Creditors, & Deadlines (“Notice”), which established the deadline to object to Debtor’s 

discharge or to challenge dischargeability of certain debts as November 7, 2014. An explanation 

of the deadline is set forth therein as follows: 

The debtor is seeking a discharge of most debts, which may include your debt. A 

discharge means that you may never try to collect the debt from the debtor. If you 

believe that the debtor is not entitled to receive a discharge under Bankruptcy 

Code §727(a) or that a debt owed to you is not dischargeable under Bankruptcy 

Code §523(a)(2), (4), or (6), you must file a complaint −− or a motion if you 

assert the discharge should be denied under §727(a)(8) or (a)(9) −− in the 

bankruptcy clerk’s office by the “Deadline to Object to Debtor’s Discharge or to 

Challenge the Dischargeability of Certain Debts” listed on the front of this form. 

The bankruptcy clerk’s office must receive the complaint or motion and any 

required filing fee by that deadline.

See Doc. No. 10. Despite the issuance of the Notice on August 1, 2014, due to a change of 

address, Movant asserts that she did not become aware of the Debtor’s bankruptcy filing until 

after October 3, 2014. 

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Due to the delay in notice, on November 7, 2014, Movant filed a Motion for Extension of 

Time to File a Complaint Objecting to Discharge Pursuant to Bankruptcy Rule 4004(b) and 

Motion to Reconvene Meeting of Creditors (“Motion for Extension”). There was no objection to 

the Motion for Extension, and this Court was advised at the hearing on the matter that Debtor did 

not object to the extension. Accordingly, this Court entered Movant’s proposed order, with the 

exception of reconvening the meeting of creditors. The Order dated November 25, 2014, 

provides as follows:

[U]pon consideration of Movant’s Motion for Extension of Time to File a 

Complaint Objecting to Discharge Pursuant to Bankruptcy Rule 4004(b) . . . , it is 

hereby ORDERED that:

1. Movant is granted an extension of time of 30 days following the date of this 

Order within which Movant, Myrna Cohen may file a Complaint Objecting to 

Debtor’s Discharge. 

See Doc. No. 28. Accordingly, the extension provided Movant until December 25, 2014, to file 

such a complaint.

On December 24, 2014, prior to the expiration of the extension to file a complaint 

objecting to discharge, Movant filed a pleading entitled “Complaint Objecting to Debtor’s 

Discharge and/or to Challenge Dischargeability of Certain Debts” (hereinafter, the “Complaint”). 

In relation to that filing, which was procedurally improper, the Court docketed a corrective entry 

as a notification that the filing was not properly docketed and required refiling.3 On January 12, 

2015, Movant again filed a pleading entitled “Complaint Objecting to Debtor’s Discharge and/or 

to Challenge Dischargeability of Certain Debts.” Once again, due to procedural error, the filing 

 3 The Court’s corrective entry stated: “ENTRY MUST BE REFILED, BY ATTORNEY, AS AN 

ADVERSARY PROCEEDING.” 

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resulted in a corrective entry requiring refiling.4 Despite the foregoing, by February 19, 2015, 

Movant failed to comply with this Court’s corrective entries; and, without a properly filed 

complaint objecting to discharge, the Debtor’s discharge was granted by Order entered February 

19, 2015 (“Discharge Order”).

On March 5, 2015, Movant filed her initial motion seeking relief from the Discharge 

Order. Said motion was refiled in compliance with the Court’s Local Rules as the Motion 

currently pending before the Court. The Motion seeks relief from the Discharge Order to permit

Movant to proceed with the Complaint, specifically as it relates to a judgment against Debtor,

and to permit the continuation of a legal malpractice action against Debtor. With respect to the 

legal malpractice action, Movant requests an order finding that the action is not discharged to the 

extent recovery is limited to insurance proceeds.

Initially, it appeared that Debtor consented to permitting the malpractice litigation to go 

forward with the limitation of recovery to applicable insurance coverage; however, Debtor 

subsequently filed his Supplemental Response withdrawing any consent. Although the 

Supplemental Response does not provide a complete clarification, it appears that Debtor’s prior, 

limited consent was conditioned upon the consented to relief being the only relief Movant would 

be granted. Accordingly, Movant’s continued attempt to proceed with the Complaint in addition 

to the malpractice litigation violated that condition. There is no indication that Debtor consented

to Movant’s request to proceed with the Complaint after the deadline passed and after the 

Discharge Order was entered. As consent is lacking, this Court considers whether the Motion 

should be granted.

 4 The Court’s corrective entry stated: “INCORRECT DOCKET EVENT USED. ENTRY MUST 

BE REFILED, BY ATTORNEY. THIS ENTRY MUST BE FILED UNDER THE ADVERSARY 

DOCKET EVENT.” 

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Analysis

As a preliminary matter, the Court notes that Movant seeks relief from the Discharge 

Order citing to Fed.R.Bankr.P. 9024, which incorporates Fed.R.Civ.P. 60. In her brief, Movant 

specifically seeks relief from the Order pursuant to Fed.R.Civ.P. 60(b)(6) under the general 

category of “any other reason that justifies relief.” Movant cites to the rule without any 

discussion of the applicable standard. Notably, relief pursuant to Fed.R.Civ.P. 60(b)(6) is only 

available under exceptional circumstances. See In re Cook, No. 09-25681-JAD, 2012 WL 

1073239, at *7 (Bankr.W.D.Pa. Mar. 29, 2012).

Significantly, relief from the Discharge Order is only part of the relief sought by Movant, 

as Movant also seeks to proceed with her Complaint and the malpractice litigation. Vacating the 

Discharge Order, however, would not render Movant’s Complaint timely filed nor would it 

constitute a determination regarding an objection to discharge or dischargeability of a particular 

debt. As the Court observed in Cook, if the deadline to commence such a proceeding has passed, 

“vacating the Debtor’s discharge pursuant to Rule 60(b) would only leave this case in a 

procedural vacuum.” See id. Therefore, this Court will consider whether the applicable deadline 

to proceed expired such that Movant is nonetheless without a remedy.5

The original deadline to object to Debtor’s discharge or to challenge the dischargeability 

of certain debts was November 7, 2014. Although Movant asserts that she did not receive notice 

of the bankruptcy case until after October 3, 2014, she was able to timely file her Motion for 

Extension, explicitly requesting an extension of time to file a complaint objecting to discharge

pursuant to Fed.R.Bankr.P. 4004(b). The time for objecting to discharge is set by Fed.R.Bankr.P. 

 5 To thoroughly consider the matters raised, this Court will proceed with the analysis despite the 

outstanding question of whether a party may seek to vacate an order granting discharge by filing a motion 

pursuant to Fed.R.Civ.P. 60(b). See Cook, 2012 WL 1073239, at *6 (discussing varied approaches by 

courts on this issue). See also In re Snavley, 506 B.R. 682 (Bankr.W.D.Pa.2013). Ultimately, as this Court 

denies such relief, this matter need not be resolved at this time.

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4004(a), which provides, in pertinent part, “In a chapter 7 case, a complaint, or a motion under 

§727(a)(8) or (a)(9) of the Code, objecting to the debtor’s discharge shall be filed no later than 

60 days after the first date set for the meeting of creditors under §341(a).” Requests for extension 

are governed by Fed.R.Bankr.P. 4004(b): 

(b) Extension of Time

(1) On motion of any party in interest, after notice and hearing, the court 

may for cause extend the time to object to discharge. Except as provided 

in subdivision (b)(2), the motion shall be filed before the time has expired.

See Fed.R.Bankr.P. 4004(b)(1). The Motion for Extension was granted, providing an extension 

of thirty days to Movant to file a complaint objecting to discharge. See Doc. No. 28.

The motion, however, did not seek an extension of time pursuant to Fed.R.Bankr.P. 4007, 

which governs determination of dischargeability of a debt. Rule 4007 provides a particular 

deadline for a complaint to determine dischargeability of a debt under 11 U.S.C. §523(c), which 

encompasses the kinds of debts specified in §523(a)(2), (4), and (6).6 Fed.R.Bankr.P. 4007(c) 

provides that a complaint “under §523(c) shall be filed no later than 60 days after the first date 

set for the meeting of creditors under §341(a).” However, an extension is available as follows: 

“On motion of a party in 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.” See 

 6 Section 523(c)(1) provides as follows:

Except as provided in subsection (a)(3)(B) of this section, the debtor shall be discharged 

from a debt of a kind specified in paragraph (2), (4), or (6) of subsection (a) of this 

section, unless, on request of the creditor to whom such debt is owed, and after notice and 

a hearing, the court determines such debt to be excepted from discharge under paragraph 

(2), (4), or (6), as the case may be, of subsection (a) of this section.

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Fed.R.Bankr.P. 4007(c)(emphasis added). No such extension was requested prior to the 

expiration of the deadline, which lapsed on November 7, 2014.7

It was not until December 24, 2014, that Movant first filed her procedurally improper 

Complaint. The Complaint was filed pursuant to 11 U.S.C. §727(b) and/or §523(a)(2). Although 

the Complaint requests either a finding of nondischargeability of the debt to Movant or denial of 

Debtor’s discharge altogether, this Court notes that reliance on §727(b)8 does not provide an 

independent basis for denial of discharge. Further, at the hearing held on March 31, 2015, 

Movant clarified that denial of discharge under §727 would not be pursued and relief was sought 

only under §523.

To the extent Movant seeks to proceed only pursuant to §523(a)(2), the extension of time 

granted pursuant to Fed.R.Bankr.P. 4004 is not applicable; rather, Fed.R.Bankr.P. 4007 governs. 

See Bricker v. Scalera (In re Scalera), No. 13-02103-CMB, 2013 WL 5963554, at *2 

(Bankr.W.D.Pa. Nov. 8, 2013) (contrasting the denial of the dischargeability of a debt to the 

denial of debtor’s discharge generally and finding the two are “wholly distinguishable actions the 

timeliness of which are governed by separate procedural rules”). It is clear that the deadline to 

 7 The Court further notes that, pursuant to Fed.R.Bankr.P. 9006(b)(3), “The court may enlarge the 

time for taking action under Rules . . . 4004(a), 4007(c) . . . only to the extent and under the conditions 

stated in those rules.”

8 11 U.S.C. §727(b) provides as follows:

(b) Except as provided in section 523 of this title, a discharge under subsection (a) of this 

section discharges the debtor from all debts that arose before the date of the order for 

relief under this chapter, and any liability on a claim that is determined under section 502 

of this title as if such claim had arisen before the commencement of the case, whether or 

not a proof of claim based on any such debt or liability is filed under section 501 of this 

title, and whether or not a claim based on any such debt or liability is allowed under 

section 502 of this title.

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proceed with a challenge to dischargeability pursuant to §523(a)(2) expired prior to the filing of 

the initial Complaint, and Movant concedes this point.

9

Accordingly, the case law cited in Movant’s brief is distinguishable from the facts of this 

case. In her brief, Movant cites to Popa v. Calinoiu (In re Calinoiu), 431 B.R. 121 

(Bankr.W.D.Pa.2010), and urges this Court to permit the Complaint to proceed to a decision on 

its merits. In Popa, the Court treated a late-filed complaint as being timely filed. In that case, 

however, the initial complaint was timely filed, though procedurally improper, and then refiled 

properly after the deadline expired. The court examined a number of cases with similar facts and 

observed:

Numerous courts have addressed the identical issue—where an objection to 

discharge has been timely filed in the main bankruptcy case and later refiled after 

the “bar date” as an adversary proceeding—and have either applied the equitable 

“relation back” doctrine or simply deemed the late filed complaint as timely filed.

See Popa, 431 B.R. at 123. In contrast, there is no timely complaint alleging nondischargeability 

under §523 filed in this case. The Complaint was only timely filed for the purpose of alleging an 

objection to discharge under §727(a), which it did not do. Although the analysis set forth in Popa 

is persuasive, those are not the facts before this Court. 

Notwithstanding the foregoing, Movant urges the Court to permit the Complaint to go 

forward based upon equitable considerations. The Court notes that in reference to Rules 4004 

and 4007, the Court in Cook held that “[w]here these time limits have expired, the Court does 

not have discretion to extend them.” See 2012 WL 1073239, at *6. However, as seen in Popa, 

there may be some room for equitable considerations. See 431 B.R. at 123. The extent to which 

equitable considerations may apply, however, need not be determined by this Court at this time

 9 “There is no question that Movant filed her extension Motion [Document 21] under Rule 4004 

and not Rule 4007. Also, the 60-day deadline of rule 4007(c) expired on November 7, 2014.” See 

Movant’s Brief, Doc. No. 53, at 8.

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as Movant fails to demonstrate the applicability of equitable considerations based upon the 

circumstances presented.

Movant asserts that the Court’s powers under 11 U.S.C. §105 may provide relief from the 

deadline set by Fed.R.Bankr.P. 4007. In support of this contention, Movant provides little more 

than a citation to the statute. However, “§105 can only be exercised within the confines of the 

Bankruptcy Code and cannot be used to disregard statutory language.” See Cook, 2012 WL 

1073239, at *8. Movant failed to demonstrate, and this Court is unconvinced, that use of §105 is 

appropriate under the circumstances presented. 

In addition, within her brief, Movant cites generally to the equitable considerations raised 

by the plaintiffs in Scalera (i.e., waiver, manifest injustice, notice, consent, and de facto 

extension of time for objection) suggesting that these matters are now before the Court for 

consideration. See 2013 WL 5963554, at * 3. Despite this reference to Scalera, Movant provided 

no analysis of these potential equitable arguments and their applicability to the facts of this case. 

The application of these equitable considerations is not evident based upon the record.

Movant asks this Court to consider that she did not receive notice of the bankruptcy case 

until October 3, 2014; however, this was not only before the expiration of the deadlines 

prescribed by Fed.R.Bankr.P. 4004 and 4007, but also proved to be sufficient notice for Movant 

to timely file her Motion for Extension pursuant to Fed.R.Bankr.P. 4004. Movant offered no 

explanation for the failure to seek an extension of time pursuant to Fed.R.Bankr.P. 4007. 

Movant further asks the Court to consider the fact that Debtor never objected to the filing 

of the Complaint. To the extent Movant may be suggesting waiver by Debtor, Movant’s 

argument is misleading as a properly filed complaint was not filed and thus Debtor was never 

required to respond.

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In addition, Movant raises Debtor’s prior consent to continuation of the malpractice 

litigation with the limitation of recovery to applicable insurance proceeds. This limited consent 

was not consent to untimely discharge and/or dischargeability proceedings against the Debtor, 

and the consent appeared to have been conditioned upon Movant limiting her relief to only 

insurance proceeds as opposed to pursuing the Complaint.10 Further, although the Motion seeks 

relief from the Discharge Order to proceed with the malpractice litigation, the Court notes that 

Movant did not raise the malpractice litigation in the Complaint. Thus, it is not clear on what 

basis Movant would challenge dischargeability under §523. However, if such challenge would 

fall within the purview of §523(c) and the deadline of Fed.R.Bankr.P. 4007(c), then the time to 

proceed expired on November 7, 2014.

Upon consideration of the entire record of this case, Movant failed to establish 

exceptional circumstances in support of her request to vacate the Discharge Order. Further, 

vacating the Discharge Order would not provide Movant with the relief she ultimately seeks, 

which is the ability to belatedly challenge the dischargeability of debts.

 10 The Court notes that Movant attempted to seek relief from stay twice to proceed with the legal 

malpractice action. Therein, she represented that she would only pursue recovery from insurance 

proceeds. However, due to Movant’s failure to comply with corrective entries, both motions were denied 

without prejudice. Therefore, despite any potential agreement with Debtor to proceed with the 

malpractice litigation, the request for relief from stay was never properly filed, and, accordingly, the 

Court did not consider the request or any consensual relief related thereto. Further, to the extent Movant 

attempts to renew the request at this time, based upon the status of this bankruptcy case, the Court notes 

that, pursuant to 11 U.S.C. §362(c)(1) and (c)(2)(C), “the stay of an act against property of the estate 

under subsection (a) of this section continues until such property is no longer property of the estate” and, 

with respect to the stay of any other act, until the time a discharge is granted to an individual Chapter 7 

debtor.

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Conclusion

Therefore, based upon the foregoing, this Court finds that the Motion must be denied. 

The Discharge Order remains in full force and effect. An Order will be entered consistent with 

this Memorandum Opinion. 

Dated: May 19, 2015 __/s/ Carlota M. Böhm_______

Carlota M. Böhm 

United States Bankruptcy Judge

MAIL TO: 

Office of the United States Trustee

Kenneth M. Steinberg, Esq.

Jeffrey T. Olup, Esq.

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