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Tagged Opinion for Print Publication

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

Case No. 21-18653-PDR

Majestic Gardens Condominium C 

Association, Inc.,

Chapter 11

Debtor.

/

MEMORANDUM OPINION ON ORDER DENYING 

MOTION TO DEEM SUBCHAPTER V PLAN TIMELY FILED1

A calendaring error by debtor’s counsel may be “excusable neglect” but is 

excusable neglect a basis for extending the deadline for filing a Subchapter V plan 

and, if not, does such an error qualify as a circumstance for which the debtor should 

not justly be held accountable justifying a retroactive extension of the deadline? 

These are the questions raised by the Debtor.

1 The Court’s Order Denying Motion to Deem Subchapter V Plan Timely Filed was entered on 

February 22, 2022, following a hearing on February 16, 2022. (Doc. 119).

Peter D. Russin, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on March 14, 2022.

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Background

The Debtor, Majestic Gardens Condominium C Association, Inc., operates a 

forty-one-unit condominium community in Lauderhill, Florida. On September 3, 

2021, the Debtor filed a voluntary bankruptcy petition under Subchapter V of 

Chapter 11 of the Bankruptcy Code. See 11 U.S.C. §§ 1181–95. A Subchapter V debtor

must file its plan of reorganization within 90 days of the petition date, “except that 

the court may extend the period if the need for the extension is attributable to 

circumstances for which the debtor should not justly be held accountable.” 11 U.S.C. 

§ 1189(b). The 90-day deadline ran on December 2, 2021, but the Debtor did not file 

the Plan until December 5, 2021. According to the Debtor, the delay was due to a 

calendaring error by its counsel’s paralegal.

Analysis

The Debtor requests that the Court deem the late-filed Plan timely filed under 

11 U.S.C. § 1189(b) by applying Fed. R. Bankr. P. 9006(b)(1) or, in the alternative,

finding that the error by the Debtor’s counsel’s paralegal is a circumstance for which 

the Debtor should not justly be held accountable and justifies an extension of the plan

deadline. The Court finds it cannot apply Rule 9006(b)(1) to extend the filing deadline 

under § 1189(b) and the facts presented do not justify an extension of the § 1189(b) 

deadline.

I. The Court cannot apply Fed. R. Bankr. P. 9006(b)(1) to extend the 11 

U.S.C. § 1189(b) deadline.

Under Fed. R. Bankr. P. 9006(b)(1), the Court may generally extend or provide 

relief from many deadlines for “excusable neglect.” The Debtor requests that the 

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Court apply Rule 9006(b)(1) here and, in support, cites Pioneer Inv. Serv. Co. v. 

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). In Pioneer, the Supreme Court 

held that an attorney’s inadvertent failure to file a proof of claim by the claims bar 

date under Fed. R. Bankr. P. 3003(c)(3) constituted “excusable neglect” under Rule 

9006(b)(1). See id. at 397–98.

However, Rule 9006(b)(1) is not applicable here. In Pioneer, Rule 9006(b)(1) 

was applied to extend a deadline set by another Federal Rule of Bankruptcy 

Procedure. Section 1189(b) is a federal statute, not a court-created rule of procedure,

and provides a 90-day deadline extendable only based on “circumstances for which 

the debtor should not justly be held accountable.” The plain language of the statute 

sets “a clearly higher standard” than the “excusable neglect” standard of Rule 

9006(b)(1) and requires that the debtor establish that “the delay necessitating the 

extension was caused by circumstances beyond the debtor’s control.” In re Seven Stars 

on the Hudson Corp., 618 B.R. 333, 344 (Bankr. S.D. Fla. 2020); see also In re Trepetin, 

617 B.R. 841, 848 (Bankr. D. Md. 2020). Rule 9006(b)(1) cannot be used to supplant 

the requirements of a federal statute because if the Bankruptcy Code and the Federal 

Rules of Bankruptcy Procedure conflict, the Bankruptcy Code must always prevail.

See 28 U.S.C. § 2075; Welt v. Bumshteyn (In re Bumshteyn), No. 21-01069-PDR, 2021 

WL 126612, at *2 (Bankr. S.D. Fla. Jan. 13, 2022) (citing Scroggins v. BP Expl. & Oil 

(In re Brown Transp. Truckload, Inc.), 161 B.R. 735, 738 (Bankr. S.D. Ga. 1993)).

Therefore, the Court cannot grant the Debtor an extension of the § 1189(b) deadline 

based on Rule 9006(b)(1).

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II. The facts do not support granting an extension under 11 U.S.C. 

§ 1189(b). 

To deem the Plan timely filed, the Court must find that (1) it has the authority 

to grant an § 1189(b) extension after the expiration of the 90-day deadline and (2) 

counsel’s calendaring error is a circumstance “for which the debtor should not justly 

be held accountable.” Though the Court finds it can grant a retroactive extension 

under § 1189(b), counsel’s calendaring error does not satisfy the § 1189(b) standard.

A. The Court may grant a retroactive extension of § 1189(b) deadline.

Section 1189(b) does not specify whether an extension can be granted after the 

deadline expires, but other bankruptcy courts have concluded it can. See, e.g., In re 

Online King LLC, 629 B.R. 340, 346–49 (Bankr. E.D.N.Y. 2021). The Court agrees. 

Where the Bankruptcy Code prevents retroactive extensions, it is often explicit. For 

example, to extend the time to confirm a standard small business debtor’s Chapter 

11 plan, the order granting the extension must be “signed before the existing deadline 

has expired.” 11 U.S.C. § 1121(e)(3)(C). The absence of similar language in § 1189(b) 

suggests there is no such limitation to granting retroactive extensions of the deadline 

to file a Subchapter V plan. 

Further, if bankruptcy courts cannot grant retroactive extensions, how would 

they address “circumstances for which the debtor should not justly be held 

accountable” that prevent a debtor from timely filing the plan or a motion to extend 

the time to file the plan? For example, what would be the fate of a Subchapter V 

debtor where an unforeseen extreme weather event knocks out power for several days 

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and prevents the debtor from filing documents? The statute would seemingly be 

rendered meaningless in many otherwise appropriate scenarios if retroactive 

extensions were impermissible. Therefore, the Court finds that § 1189(b) permits 

retroactive extensions of the 90-day filing deadline.2

B. Counsel’s calendaring error is not a circumstance justifying an 

extension under 11 U.S.C. § 1189(b).

An extension is not warranted here. The purported cause for the Debtor’s delay 

was its counsel’s calendaring error. The Supreme Court has made clear, however,

that clients are “accountable for the acts and omissions of their chosen counsel.” 

Pioneer, 507 U.S. at 397; see also Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962). 

The Debtor must be “accountable” for its counsel’s acts and omissions, and as a result,

under the facts of this case, must justly be held accountable for its counsel’s 

calendaring error rendering relief under § 1189(b) unavailable. Therefore, the Court 

finds that Debtor’s counsel’s calendaring error does not justify an extension of the 

§ 1189(b) deadline.

III. Conclusion

The Court cannot deem the Debtor’s Subchapter V plan as timely filed. Other 

courts have observed that this conclusion generally requires dismissal. See, e.g., 

Online King, 629 B.R. at 348; Seven Stars, 618 B.R. at 343. However, based on the 

2 The Court notes that parties should always strive to request extensions before the expiration 

of the deadline where practicable. Nothing in § 1189(b) requires bankruptcy courts to consider granting 

retroactive extensions; the mere failure to timely file the request before the deadline expires may, 

under some circumstances, be sufficient to deny the request.

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statements of Debtor’s counsel at the hearing, the Debtor seeks to amend its Petition 

to remove the Subchapter V designation. The Court will allow the Debtor to do so.

Accordingly, the Court ORDERS that the Motion to Deem Subchapter V Plan 

Timely Filed (Doc. 61) is DENIED.

# # #

Copies To:

Chad Van Horn, Esq.

Chad Van Horn, Esq. is directed to serve this Order on all interested parties.

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