FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMINA ANWAR; DAVID C.

MCCLANAHAN,

Appellants,

v.

D. LEE JOHNSON; DAVID LYN

VERGEYLE; MARGARET HORNE

VERGEYLE, and the marital

community composed of David Lyn

Vergeyle and Margaret Horne

Vergeyle,

Appellees.

No. 11-16612

D.C. No.

2:10-cv-02036-

SRB

ORDER AND

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

February 12, 2013—Stanford, California

Filed July 2, 2013

Before: Jerome Farris, Sidney R. Thomas,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Thomas
2 ANWAR V. JOHNSON

SUMMARY*

Bankruptcy

The panel granted a motion requesting publication of a

memorandum disposition filed February 19, 2013, affirming

the district court’s affirmance of the bankruptcy court’s

dismissal of nondischargeability complaints.

The panel held that the Federal Rules of Bankruptcy

Procedure do not afford the bankruptcy court the discretion

to extend retroactively the deadline for filing

nondischargeability complaints when an attorney’s computer

difficulties cause him to miss the electronic filing deadline.

COUNSEL

Mark Clarence McClanahan (argued), Portland, Oregon;

Mark E. Hall, Chandler, Arizona, for Appellants.

Randy Nussbaum (argued) and Beth J. Shapiro, Nussbaum,

Gillis & Dinner P.C., Scottsdale, Arizona, for Appellees.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ANWAR V. JOHNSON 3

ORDER

Appellants’ motion requesting publication of the

memorandum disposition filed February 19, 2013, is

GRANTED. The memorandum disposition is hereby

withdrawn and replaced with the opinion filed concurrently

with this order. No further petitions for rehearing or

rehearing en banc will be entertained.

OPINION

THOMAS, Circuit Judge:

The humorist Douglas Adams was fond of saying, “Ilove

deadlines. I love the whooshing sound they make as they fly

by.” But the law more often follows Benjamin Franklin’s

stern admonition: “You may delay, but time will not.” To

paraphrase Émile Zola, deadlines are often the terrible anvil

on which a legal result is forged.

This appeal presents the question of whether the Federal

Rules of Bankruptcy Procedure afford the Bankruptcy Court

the discretion to extend retroactively the deadline for filing

nondischargeability complaints when an attorney’s computer

difficulties cause him to miss the electronic filing deadline. 

We conclude that the Rules of Bankruptcy Procedure do not

allow retroactive extension of the deadline, and we affirm the

judgment of the district court.
4 ANWAR V. JOHNSON

I

Amina Anwar and David C. McClanahan (collectively,

“Anwar”) are former employees of the now-bankrupt Xperex

corporation, of which D. Lee Johnson and David Vergeyle

were the founders, principal shareholders, and Chief

Financial Officer and Chief Executive Officer, respectively. 

Johnson and Vergeyle filed a voluntary petition in bankruptcy

under Chapter 7 of the United States Bankruptcy Code in the

District of Arizona.

Upon receipt of the petition, the Arizona bankruptcycourt

mailed notices to Anwar and other creditors listed in Johnson

and Vergeyle’s bankruptcy schedules, which informed the

creditors of the pending bankruptcy proceedings, the date of

the creditors’ meeting in each case, and the deadline for filing

a complaint to challenge the dischargeability of particular

debts. The bankruptcy court informed Anwar and the other

creditors that the deadline for filing nondischargeability

complaints in Johnson’s case was November 10, 2009, and

the deadline in Vergeyle’s case was November 20, 2009.

On November 10 and 24, 2009, Anwar filed timely

motions to extend the filing deadlines in Johnson’s and

Vergeyle’s cases, respectively. After a hearing, the

bankruptcy court granted the motions and extended the

deadline in both cases to April 13, 2010.

 Anwar sought to challenge the dischargeability of the

debts owed to her based on section 523(a) of the Bankruptcy

Code, which excepts from discharge debts obtained by fraud. 
ANWAR V. JOHNSON 5

11 U.S.C. § 523(a).1 However, even debts obtained by fraud

will be discharged unless the creditor timely requests a

determination by the bankruptcy court that the debt is not

dischargeable. 11 U.S.C. § 523(c). Federal Rule of

Bankruptcy Procedure (“FRBP”) 4007(c) “imposes a strict

60-day time limit for filing complaints to determine

dischargeability of debts listed in § 523(c).” Allred v.

Kennerley (In re Kennerley), 995 F.2d 145, 146 (9th Cir.

1993).

By local rule, the Arizona bankruptcy court has

established a mandatory electronic filing system, with

exceptions not relevant here. U.S. Dist. Ct. for the Dist. of

Ariz., Local R. Bankr. P. 5005-2 (2007). Parties access the

system through an online portal on the bankruptcy court’s

website. A creditor seeking to electronically file a

nondischargeability complaint must complete two steps: 

First, the creditor must open an “adversary proceeding” in the

bankruptcy court’s electronic filing system. Second, the

creditor must electronically file a nondischargeability

complaint. Under the federal bankruptcy rules, the deadline

for all electronic filings is midnight local time on the day set

by the relevant order of the bankruptcy court. Fed. R. Bankr.

P. 9006(a)(4)(A). Thus, the deadline for Anwar to file her

1 Anwar’s nondischargeability complaints allege that Johnson and

Vergeyle fraudulently represented to Anwar and other Xperex employees

that, in dissolving the failing company, Xperex would ensure payment of

all past and ongoing employee benefits obligations and would give those

obligations first priority over all other debts, when in fact Xperex had

granted a blanket security interest in the company to Johnson’s sister-inlaw. The complaints asserted various tort claims arising from this alleged

misrepresentation. As explained below, however, the nature of the

allegations in Anwar’s nondischargeability complaints does not affect our

analysis of the issue on appeal.
6 ANWAR V. JOHNSON

nondischargeability complaints in the Johnson and Vergeyle

proceedings was midnight Arizona time on April 13, 2010.

Anwar’s counsel did not meet this deadline. Counsel did

not initiate the first step of the electronic filing process—

opening adversary proceedings—until after 9:00 p.m. on

April 13, 2010—the last day of the extended period for filing

nondischargeability complaints in the Johnson and Vergeyle

cases.2 Due to technical problems with counsel’s computer,3

he did not successfully file the nondischargeability complaint

in the Johnson case until 12:26 a.m. on April 14, 2010. He

did not file the complaint in the Vergeyle case until 12:38

a.m.

On May 18, 2010, Johnson and Vergeyle moved to

dismiss Anwar’s nondischargeabilitycomplaints as untimely. 

Anwar responded with a motion “for relief from untimely

filing and to determine timeliness.” The bankruptcy court,

after a hearing, granted Johnson and Vergeyle’s motion,

denied Anwar’s, and dismissed the complaintswith prejudice. 

The bankruptcy court explained that, under the federal

bankruptcy rules and controlling precedent interpreting them,

2 The record reflects that Anwar’s counsel opened an adversary

proceeding in the Johnson case at 9:34 p.m. on April 13, 2010, and did so

in the Vergeyle case at 9:51 p.m. on April 13, 2010.

3 The legal secretary for Anwar’s counsel, who was responsible for

completing the electronic filings, testified that she encountered difficulties

while converting the nondischargeability complaints and attachments into

Portable Document Format (“PDF”) as required by the Arizona

bankruptcy court’s electronic filing instructions. Specifically, the

programs she was using to convert the files stopped responding, which

required her to restart the computer numerous times. Because of the

ensuing delay, she was unable to complete the conversion and filing

process before the midnight deadline on April 13, 2010.
ANWAR V. JOHNSON 7

he lacked discretion to grant retroactive extensions of FRBP

4007(c)’s deadline. That the relevant authorities pre-dated

the advent of the Arizona bankruptcy court’s mandatory

electronic filing system did not change the bankruptcy court’s

analysis. Reviewing de novo, the district court affirmed. 

II

The sole issue on appeal is whether the bankruptcy court

erred in refusing to grant Anwar a retroactive extension of the

deadline for filing her nondischargeability complaints, so as

to render timely her counsel’s filings in the wee hours of the

morning following the midnight deadline.

“‘On appeal from a district court’s affirmance of a

bankruptcy court decision, we independently review the

bankruptcy court’s decision, without giving deference to the

district court.’” Rosson v. Fitzgerald (In re Rosson), 545 F.3d

764, 770 (9th Cir. 2008) (quoting Hebbring v. U.S. Trustee,

463 F.3d 902, 905 (9th Cir. 2006)). “The bankruptcy court’s

conclusions of law and interpretation of the BankruptcyCode

are reviewed de novo and its factual findings for clear error.” 

Greene v. Savage (In re Greene), 583 F.3d 614, 618 (9th Cir.

2009) (citing Salazar v. McDonald (In re Salazar), 430 F.3d

992, 994 (9th Cir. 2005)). We review the bankruptcy court’s

decision to dismiss Anwar’s complaints with prejudice for

abuse of discretion. See Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 
8 ANWAR V. JOHNSON

A

The bankruptcycourt correctlyheld that the Federal Rules

of Bankruptcy Procedure afford it no discretion to extend

retroactively the deadline set in FRBP 4007(c) for filing

nondischargeability complaints. That rule provides, with an

exception not relevant here, that

a complaint to determine the dischargeability

of a debt under § 523(c) shall be filed no later

than 60 days after the first date set for the

meeting of creditors under § 341(a). The

court shall give all creditors no less than 30

days’ notice of the time so fixed in the manner

provided by Rule 2002. 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.

Fed. R. Bankr. P. 4007(c).4

Thus, by its terms, the rule requires creditors such as

Anwar to file nondischargeability complaints within sixty

days of the creditors’ meeting. A creditor may move to

extend the deadline for cause—as Anwar successfully did

once—but “[t]he motion shall be filed before the time has

4 Anwar does not dispute that the bankruptcy court provided her the

requisite notice under FRBP 4007(c).
ANWAR V. JOHNSON 9

expired.” Id.5 Reinforcing the statement that creditors must

move for extensions of FRBP 4007(c)’s filing deadline before

the time for filing has expired, FRBP 9006(b)(3) states that

bankruptcy courts may extend this deadline “only to the

extent and under the conditions stated in” FRBP 4007(c)

itself. Fed. R. Bankr. P. 9006(b)(3). This requirement

distinguishes FRBP 4007(c)’s deadline from most others set

by the bankruptcy rules, which bankruptcy courts may extend

at any time upon a showing of good cause or excusable

neglect. Fed. R. Bankr. P. 9006(b)(1).

Consistent with the plain language of FRBP 4007(c) and

9006(b)(3), we have repeatedly held that the sixty-day time

limit for filing nondischargeability complaints under

11 U.S.C. § 523(c) is “strict” and, without qualification,

“cannot be extended unless a motion is made before the 60-

day limit expires.” In re Kennerley, 995 F.2d at 146 (citing

Anwiler v. Patchett (In re Anwiler), 958 F.2d 925 (9th Cir.

1992)); see also, e.g., Classic Auto Refinishing, Inc. v.

Marino (In re Marino), 37 F.3d 1354, 1358 (9th Cir. 1994);

Jones v. Hill (In re Hill), 811 F.2d 484, 486 (9th Cir. 1987). 

Accordingly, Anwar was not entitled to a retroactive

extension of the filing deadline based on equitable

considerations or a local rule of bankruptcy procedure that

5 The bankruptcy code provides one exception from the prohibition

against retroactive extensions of FRBP 4007(c)’s filing deadline—for a

complaint challenging the dischargeability of a debt that was “neither

listed nor scheduled . . . in time to permit . . . timely filing of a proof of

claim and timely request for a determination of dischargeability of such

debt,” unless the creditor “had notice or actual knowledge of the

[bankruptcy] case in time for such timely filing and [complaint].” 

11 U.S.C. § 523(a)(3)(B). Because Anwar did not invoke this exception

before the district court, we decline to consider it for the first time on

appeal. United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).
10 ANWAR V. JOHNSON

purports to grant the bankruptcy court discretion to excuse

untimely filings.

B

The bankruptcy court lacked equitable power to grant

Anwar relief from her untimely filings. “In bankruptcy cases,

a court’s equitable power is derived from 11 U.S.C.

§ 105(a),” In re Anwiler, 958 F.2d at 928 n.5, which

authorizes the court to “issue any order, process, or judgment

that is necessary or appropriate to carry out the provisions of

[the Bankruptcy Code],” 11 U.S.C. § 105(a). However,

“whatever equitable powers remain in the bankruptcy courts

must and can only be exercised within the confines of the

Bankruptcy Code.” Norwest Bank Worthington v. Ahlers,

485 U.S. 197, 206 (1988). These confines include deadlines

set by the Federal Rules of BankruptcyProcedure. See Zidell,

Inc. v. Forsch (In re Coastal Alaska Lines, Inc.), 920 F.2d

1428, 1432 (9th Cir. 1990) (holding that the bankruptcy court

may not invoke its equitable power under § 105(a) to enlarge

the time for filing a proof of claim under FRBP 3002(c),

where FRBP 9006(b)(3) limits the grounds for extension to

those stated in FRBP 3002(c) itself). Because granting

Anwar a retroactive extension of the filing deadline would

conflict with the plain language of FRBP 4007(c) and

9006(b)(3), the bankruptcy court could not rely on its

equitable powers to do so. See Childress v. Middleton Arms,

L.P. (In re Middleton Arms, L.P.), 934 F.2d 723, 725 (6th Cir.

1991) (“bankruptcy courts cannot use equitable principles to
ANWAR V. JOHNSON 11

disregard unambiguous statutory language”) (internal

quotation marks and citation omitted).6

Thus, the fact that Anwar missed the filing deadline by

less than an hour is immaterial. See Kelly v. Gordon (In re

Gordon), 988 F.2d 1000, 1001 (9th Cir. 1993) (denying

equitable relief fromFRBP 4007(c) deadline where complaint

filed two days late); Moody v. Bucknum (In re Bucknum),

951 F.2d 204, 205–06 (9th Cir. 1991) (same). Nor is the lack

of prejudice to the debtors significant. See Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (holding

that lack of prejudice to opposing party “is not an

independent basis for invoking [equitable exceptions] and

sanctioning deviations from established procedures”). That

Anwar seeks to file a fraud claim is similarly irrelevant to the

analysis. See In re Kennerley, 995 F.2d at 146. Finally, the

advent of mandatory electronic filing systems does not upend

this body of precedent, and the fact that Anwar’s untimely

filing stemmed from difficulty with an electronic filing

system is immaterial. Paper filing systems present their own

unique opportunities for parties to miss their deadlines; as

the bankruptcy court in this case noted, the Arizona

bankruptcy court’s electronic filing system made it easier for

6 We acknowledge that the U.S. Supreme Court has not expressly

addressed whether FRBP 4007(c)’s filing deadline admits of any equitable

exceptions and that lower courts are divided on the issue. See Kontrick v.

Ryan, 540 U.S. 443, 457 & nn.11–12 (2004) (declining to decide question

and noting circuit split). We need not, and do not, reach the question of

whether external forces that prevented any filings—such as emergency

situations, the loss of the court’s own electronic filing capacity, or the

court’s affirmative misleading of a party—would warrant such an

exception. See, e.g., In re Kennerley, 995 F.2d at 147–48; see also

Ticknor v. Choice Hotels Intern., Inc., 275 F.3d 1164, 1165 (9th Cir.

2002).
12 ANWAR V. JOHNSON

Anwar’s counsel to timely file the complaints from his office

in Oregon. In short, absent unique and exceptional

circumstances not present here, we do not inquire into the

reason a party failed to file on time in assessing whether she

is entitled to an equitable exception from FRBP 4007(c)’s

filing deadline; under the plain language of the rules and our

controlling precedent, there is no such exception.

C

Contrary to Anwar’s assertion, the Arizona bankruptcy

court’s local rules do not provide relief. Pursuant to FRBP

9029(a)(1), federal district courts may promulgate local rules

of bankruptcy procedure “which are consistent with—but not

duplicative of—Acts of Congress and [the FRBP] and which

do not prohibit or limit the use of the Official Forms . . . .” 

Fed. R. Bankr. P. 9029(a)(1). In addition, FRBP 5005(a)(2)

authorizes district courts to promulgate local bankruptcyrules

that require electronic filing, provided such rules comport

with technical standards established by the Judicial

Conference of the United States and allow for “reasonable

exceptions.” Fed. R. Bankr. P. 5005(a)(2). The bankruptcy

court for the District of Arizona, as noted above, has

exercised its authority to establish an electronic filing system

and has promulgated local procedural rules governing its use. 

Of relevance to this appeal, Local Rule of Bankruptcy

Procedure (“LRBP”) 5005-2(n) provides that an attorney or

party whose electronic filing “is untimely or otherwise

improper may seek appropriate relief from the bankruptcy

court upon a showing of good cause or excusable neglect.” 

Local R. Bankr. P. 5005-2(n). Anwar argues that this local

rule gives the bankruptcy court discretion to consider

untimely nondischargeability complaints where the late filing
ANWAR V. JOHNSON 13

results from technical difficulty with the electronic filing

system.

However, a local rule of bankruptcy procedure cannot be

applied in a manner that conflicts with the federal rules. See

Pradier v. Elespuru, 641 F.2d 808, 810 (9th Cir. 1981). 

District and bankruptcy courts have been delegated authority

to adopt local rules prescribing the conduct of business but

the rules must be consistent with the Bankruptcy Code and

the Federal Rules of Bankruptcy Procedure. Sigma Micro

Corp. v. Healthcentral.com (In re Healthcentral.com),

504 F.3d 775, 784 (9th Cir. 2007). Local bankruptcy rules

may not “enlarge, abridge, or modify any substantive right.” 

Sunahara v. Burchard (In re Sunahara), 326 B.R. 768, 782

(B.A.P. 9th Cir. 2005) (internal quotation marks and citation

omitted). Because the federal bankruptcy rules do not permit

an “excusable neglect” exception to FRBP 4007(c)’s filing

deadline, LRBP 5005-2(n) cannot provide Anwar relief.

It is of no moment that LRBP 5005-2(n) closely tracks a

model rule of local bankruptcy procedure developed by the

Judicial Conference of the United States.7 A model rule is, by

definition, only an advisory template. By itself, it has no

7 The relevant model rule provides that a user of an electronic filing

system “whose filing is made untimely as the result of a technical failure

may seek appropriate relief from the court.” U.S. Judicial Conference,

Cmte. on Court Admin. & Case Mgmt., Model Local Bankruptcy Court

Rules for Electronic Case Filing, Rule 11 – Technical Failures (June 29,

2001). The associated commentary states that the model rule addresses

both “the possibility that a party may not meet a filing deadline because

the court’s website is not accessible for some reason” and “the possibility

that the filer’s own unanticipated system failure might make the filer

unable to meet a filing deadline.” Id. at cmt. 1.
14 ANWAR V. JOHNSON

legal force and cannot trump the Federal Rules of Bankruptcy

Procedure.

III

We decline Anwar’s invitation to revise the Federal Rules

of Bankruptcy Procedure, which plainly provide that a party

may file a nondischargeability complaint under 11 U.S.C.

§ 523 outside the sixty-day window established by FRBP

4007(c) if, and only if, she files a motion showing good cause

for an extension before the sixty-day period lapses. Fed. R.

Bankr. P. 4007(c), 9006(b)(3).

Because neither the federal rules, local rules, nor model

rules of bankruptcy procedure gave the bankruptcy court

authority to relieve Anwar from the consequences of her

untimely filing, we affirm the dismissal of her

nondischargeability complaints with prejudice.

AFFIRMED.