between the bad conduct and the activities sought to be
enjoined.”); Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002)
(“[T]he party claiming estoppel must show: (1) a misrepresentation
by the opposing party; (2) reasonable reliance on _ that
misrepresentation; and (3) detriment.”).

In addition to the equitable defenses of unclean hands and
estoppel, Mr. Mirmingos argues that his late filing is justified by
“excusable neglect.” This argument is also unavailing. The
“excusable neglect” standard is used to determine whether late
filings may be permitted according to Bankruptcy Rule 9006({b) (1).
See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 388 (1993). Rule 9006(b)(1) does not apply to
determinations of whether to extend deadlines under Rules 4004 or
4007, however. Fed. R. Bankr. P. 9006(b) (3). Rules 4004 and 4007
make no mention of “excusable neglect.” Further, unlike motions to
allow late filing under Rule 9006 for “excusable neglect,” motions
for extension of time under Rules 4004 or 4007 must be filed prior
to the expiration of the sixty day deadline; there is no provision
in those rules permitting filing after the deadline has passed
absent a timely-filed motion for extension of time. While Kontrick
allows these deadlines to be subject to equitable defenses, as far
as I know, “excusable neglect” is not an equitable defense. Thus,
Mr. Mirmingos may not argue “excusable neglect” as a defense to Mr.

Benjamin’s motion to dismiss for untimely filing, and the



od

various business ventures. Mr. Mirmingos filed a complaint against
Mr. Benjamin in DuPage County, which the parties allegedly agreed
to settle. Mr. Mirmingos claims that Mr. Benjamin entered into the
settlement agreement in bad faith, and has since been jumping from
forum to forum, employing various procedural devices to delay
enforcement of the settlement. These tactics include filing for
bankruptcy under Chapter Thirteen and, when that was unsuccessful,
filing for bankruptcy under Chapter Seven, the proceeding before
Judge Wedoff. In asserting the equitable defenses of unclean hands
and estoppel, Mr. Mirmingos argues that Mr. Benjamin should not be
allowed to benefit from his alleged fraud on Mr. Mirmingos and
various state and federal courts. Even if all of Mr. Mirmingos’
allegations are true, however, application of the doctrines of
unclean hands or estoppel here is not appropriate. Mr. Benjamin’s
alleged behavior has nothing to do with Mr. Mirmingos’ failure to
timely file his adversary complaint or a motion for extension.
While Mr. Mirmingos asserts that he did not receive timely
notification of Mr. Benjamin’s Chapter Seven bankruptcy filing, he
does not claim that this failure to receive notification was in any
way caused by or related to Mr. Benjamin’s alleged misconduct or
any other misrepresentations by Mr. Benjamin. The doctrines of
unclean hands and estoppel simply do not apply here. See Shondel
v. McDermott, 775 F.2d 859, 869 (7th Cir. 1985) (“[{O]rdinarily, the

clean hands doctrine only applies when there is a direct nexus



bankruptcy court did not err in refusing to consider that defense.
Wr. of Nov. 12 Proceedings at 9.)

While Kontrick permits plaintiffs to assert equitable defenses
in opposition to a motion to dismiss an adversary complaint for
untimely filing, the bankruptcy court here did not err in finding
that there did not exist any grounds, equitable or otherwise, for
excusing Mr. Mirmingos’ late filing. The order of the bankruptcy
court dismissing the adversary complaint is AFFIRMED. Mr. Benjamin
argues that there was no basis for filing this appeal, and that he
is therefore entitled to attorneys’ fees in connection with
preparation of his response brief. While I found that the
bankruptcy court did not err, an appeal from its decision was not
frivolous. Mr. Benjamin provides no authority requiring the

payment of attorneys’ fees in this case, and his request is

consequently DENIED.

ENTER. DRDER 2
- £2
iy Soa, ? kiasthilss
Elaine E. Bucklo
United States District Judge

Dated: January 20, 2003


‘vigor Form (06/97)

nited States District Court, Northern District of Illinois

S

nse uae] laine E 4] Sitting Judge if Other
Aephoed Judge Elaine E. Bucklo than Assigned Judge
SE NUMBER 02 C 4475 DATE 1/30/2003
CASE Mirmingos vs. Benjamin
TITLE |
{in the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(a) ia Filed motion of [ use listing in “Motion” box above.]
(2) aq Brief in support of motion due.
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearingon set for_ at
(5) im] Status hearing[held/continued to] [set for/re-set for} on set for at
(6) Qa Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) im) Trial{set for/re-set for] on at
(8) a {Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOPRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1) C1 FRCP41(a)(2)
ao Other docket entry] Enter Memorandum Opinion and Order affirming the order of the bankruptc
Pp g ptcy
court dismissing the adversary complaint. Mr. Benjamin’s request for attorneys’ fees is denied. Any
pending motion in this case is terminated as moot. Ruling on the appeal set for 2/7/03 is also vacated.
al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
| ? Number
No notices required. number of notices: reistit
— :
a | Notices mailed by judge’s staff. JAN 3.1 2005
Notified counsel by telephone, dave logkoteg
Docketing to nail notices.
Y | Mail AO 450 form. sha depts
Copy to judge/magistrate judge.
vnor008

date mailed notice

courtroom
deputy's
initials

MPI MPs

Dateltithe febéived in: 1] 2}

central Clerk’s Office

mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
e FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DINO MIRMINGOS,
Plaintiff,
Vv.
REGINALD BENJAMIN,

)
)
)
)
)
) No. 02 € 4475
)
)
Defendant.
)

gees

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J
MEMORANDUM OPINION AND ORDER

Plaintiff Dino Mirmingos filed an adversary complaint in
defendant Reginald Benjamin’s Chapter Seven bankruptcy proceeding
before Judge Wedoff. Mr. Benjamin filed a motion to dismiss the
complaint as untimely filed, which Judge Wedoff granted. Mr.
Mirmingos appealed, and I remanded to the bankruptcy court for
reconsideration in light of In re Kontrick, 295 F.3d 724 (7th Cir.
2002). Upon reconsideration, Judge Wedoff affirmed his earlier
granting of the motion to dismiss and Mr. Mirmingos’ appeal was
reinstated. I now affirm the bankruptcy court’s decision granting
defendant’s motion to dismiss.

Bankruptcy Rules 4004 and 4007 state that a complaint filed in
a Chapter Seven bankruptcy proceeding must be filed within sixty
days of the creditors’ meeting. Those rules also state that the
bankruptcy judge may grant an extension of time if a motion for

extension is filed before the expiration of the sixty day deadlin



Bankruptcy Rule 9006 indicates that there is no other method for
extending the deadlines in Rules 4004 and 4007. Here, the parties
do not dispute that the deadline for filing a complaint expired on
April 5, 2002, and that Mr. Mirmingos filed his complaint on April
10, 2002. Following Mr. Mirmingos’ April 10 filing, Mr. Benjamin
filed a motion to dismiss the complaint as untimely. Judge Wedoff
granted the motion in a hearing on May 16, 2002, taking a plain
meaning approach and noting that “it is a black and white rule”
that he could not retroactively extend the time for filing a
complaint. (Tr. of May 16 Proceedings at 4-5.)

While this case was originally on appeal before me, the
Seventh Circuit handed down its decision in Kontrick, which held
that the timeliness provisions in Bankruptcy Rules 4004 and 4007
are not jurisdictional, and are therefore subject to equitable
defenses. 295 F.3d at 733. On reconsideration in light of
Kontrick, Judge Wedoff in a hearing affirmed his earlier dismissal
of the case, finding no equitable grounds justifying a deviation
from the language of the rules in this case. (Tr. of Nov. 12
Proceedings at 9.) I review a bankruptcy court’s legal conclusions
de novo. In re Yonikus, 996 F.2d 866, 868 (7th Cir. 1993).

Mr. Mirmingos claims two equitable defenses to Mr. Benjamin's
assertion of untimely filing: unclean hands and estoppel. The
original dispute between the parties arose from Mr. Benjamin’s

allegedly defrauding Mr. Mirmingos with respect to investments in