USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________
No. 95-1376

CATHERINE DUFFY PETIT,

Plaintiff, Appellant,

v.

PETER C. FESSENDEN, TRUSTEE, ET AL.,

Defendants, Appellees.

____________________
No. 95-1377

CATHERINE DUFFY PETIT,

Plaintiff, Appellant,

v.

PETER C. FESSENDEN, TRUSTEE, ET AL.,

Defendants, Appellees.

____________________
No. 95-1378

CATHERINE DUFFY PETIT,

Plaintiff, Appellant,

v.

PETER C. FESSENDEN, TRUSTEE, ET AL.,

Defendants, Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Cyr, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

Stephen F. Gordon, with whom Gordon & Wise was on brief for
_________________
_____________
appellant.

Peter C. Fessenden, with whom John G. Connor, Law Office of Jo

__________________
______________ ________________
G. Connor, James F. Molleur, Woodman & Edmands, P.A., U. Charles
_________ ________________ _______________________ __________
Remmel, II, Kelly, Remmel & Zimmerman and Mark S. O'Brien, Special
__________ _________________________
_______________
Assistant United States Attorney, were on brief for appellees.

____________________

April 3, 1996
____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

chapter 11

affirming

debtor,

appeals from

bankruptcy

trustee to reconvene

Plaintiff Catherine Duffy Petit,

court

district court

order allowing

the

chapter

11

a meeting of creditors several months after

its indefinite adjournment, see Bankruptcy Code

___

341; Fed. R.

judgment

Bankr. P. 2003, thereby purportedly

341, 11 U.S.C.

recommencing

the 30-day limitation period within which a trustee may interpose

objections to an exemption claim made by the debtor.

Bankr. P. 4003(b).

See Fed. R.
___

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

In

June

1993,

creditors

initiated

an

involuntary

chapter 7 proceeding against Petit in the United States Bankrupt-

cy Court for the District of Maine.

the

order for

relief

The bankruptcy court entered

under chapter

on December

10,

1993,

following its denial of Petit's motion to dismiss the involuntary

petition.

See 11 U.S.C.
___

305(a).

motion to convert to chapter 11.

One week later, Petit filed a

See id.
___ ___

348.

At a hearing on

February

2,

1994, and

creditors, the

relief

over

the objection

bankruptcy court directed

under chapter 11, and took

of

the petitioning

entry of an

order for

under advisement the appoint-

ment of a chapter 11 trustee.

Petit

(Official

filed

Form 7)

and

her

statement

schedules (Official

Schedule C (Property

Claimed as

February

asserting

25,

1994,

of

financial

Form 6),

Exempt), see id.

___ ___

a claim

to

certain

affairs

including

521(1),

on

exemptions

prescribed under federal law, see id.

___ ___

under

a crime

ment[s],

not to

injury").

victim's reparation

exceed

$7500, on

522(d)(11)(A) ("an award

law"); 522(d)(11)(D)

("pay-

account

bodily

of personal

In Schedule B, Petit listed as an exempt asset, inter

_____

alia, the entire anticipated

____

proceeds from a pending state-court

action against Key Bank,

having an estimated value in

$25

28, 1994,

million.

On March

the

order for

excess of

relief under

chapter 11 was entered on the bankruptcy court docket.

The United States Trustee

tors on May

17, 1994.

See
___

id.
___

convened a meeting of credi-

341;

Fed. R. Bankr. P.

2003.

Before it ended, the meeting

date" by the Assistant

United States Trustee.

bankruptcy court approved

Peter

on August 22, Fessenden

property claimed as

the anticipated

Bank.

Fed. R.

than

the appointment of

On June 17,

filed objections to

exempt by Petit,

proceeds from

the

defendant-appellee

Fessenden, Esquire, as the chapter 11 trustee.

later,

Key

of creditors was "continued without

Two months

the list of

particularly her claim

the pending legal

to

action against

Petit responded that the objection was time-barred by

Bankr. P. 4003(b), because

it was not filed

until more

30 days after the "conclusion" of the meeting of creditors.

See Taylor v.
___ ______

Freeland & Kronz, 112 S. Ct. 1644, 1648-49 (1992).

________________

Fessenden meanwhile sent a notice to creditors that the continued

meeting of

creditors

would be

reconvened on

October 20,

thus

purportedly

extending

the time for

claimed

exempt

until at least 30 days after October 20

filing any

and

objection to

rendering

timely the

the list

objection

of property

filed

by

Fessenden on August 22.

Petit then

meeting

of creditors,

sought to quash the

contending

in the

notice reconvening the

alternative that

(1)

Bankruptcy Code

an express

trustee

341

permits only the United States

"designee"

and

not

an undesignated

to convene a meeting of creditors and

States Trustee had objected to reconvening

tors

scheduled by

Fessenden; or

scribed in Bankruptcy Rule 4003(b)

claim cannot be

Taylor,
______

to

chapter

11

that the United

the meeting of credi-

the 30-day

deadline pre-

for objecting to an exemption

enlarged, citing the

Supreme Court decision

in

112 S. Ct. at 1648 ("[Rule 4003(b)] [d]eadlines may lead

unwelcome results, but they prompt parties to act and produce

finality.").

But cf.
___ ___

Mercer v.
______

(distinguishing Taylor),
______

3439

(2)

Trustee or

(U.S. Dec.

allowing

trustees

12,

to

Monzack, 53
_______

petition for
________ ___

1995) (No.

circumvent

F.3d 1

(1st Cir.)

cert. filed, 64
_____ _____

U.S.L.W.

95-970).

Petit

argued

Taylor,
______

through

the

that

simple

expedient

of

routine, indefinite

adjournments

of

meetings of

creditors, would deprive chapter 11 debtors of the benefit of the

very policies of repose and finality acknowledged by the

Court in

of

Taylor.
______

Petit urged, at the very least, that a meeting

creditors adjourned

purposes of the

without

Rule 4003(b)

day be

deemed "concluded"

time-bar if, as

States Trustee (or chapter 11 trustee) fails

30

days

of the

Supreme

adjournment, a

meeting of creditors.

firm

here, the

United

to announce, within

date for

See In re Levitt, 137 B.R.

___ ____________

Mass. 1992); infra note 2.

_____

for

reconvening the

881 (Bankr. D.

The bankruptcy

court first denied the

the notice reconvening the

continued meeting of creditors, then,

after it had been reconvened, ruled that the

to

B.R.

motion to quash

Fessenden objection

Petit's exemption claim was not time-barred, In re Petit, 172

___________

706 (Bankr. D. Me. 1994) (Votolato, B.J.);1 Petit, 174 B.R.

_____

868 (Bankr. D. Me.

1994) (Votolato, B.J.).2

The

district court

____________________

1The
unilateral

bankruptcy
authority

court
to

ruled

reconvene

that
the

Fessenden
meeting

of

possessed

creditors

because Bankruptcy Code

102(9) defines the term "United States

trustee" to include a "designee,"

the term "designee" is synony-

mous with the term "appointee," and the United States Trustee had
appointed Fessenden as the chapter 11

trustee.

In light of

our

holding, we need not resolve this question.

2The

bankruptcy

following

grounds.

court

sustained

First,

it found

the

objections

In re Levitt
_____________

on

the

inapposite

because the indefinite adjournment of the meeting of creditors by

the

chapter

7 trustee

in that

case

had been

followed

unreasonable 15-month delay in reconvening the meeting.

________
the

"reasonableness" of any

creditors

as a matter

bankruptcy court

noted several factors which

unreasonable:

part because Petit, a

obstructionist" debtor, had opposed

11 trustee; (2)

the Fessenden

same day the 30-day period

expired,

indicated that the

(1) Fessenden did

not

potential

"particularly litigious and

the appointment of a chapter

appointment, which occurred

chapter

withdrawal or disqualification

11 trustee

Fessenden was relegated to the role of a

initial May 17 meeting
questioning

Petit

the

prescribed in Bankruptcy Rule 4003(b)

followed the unexpected

other

United

meeting of

the chapter 11 trustee until after the initial meeting of

creditors, in

of

reconvening a

Treating

requiring case-by-case determination, the

delay in this case was not

become

delay in

by an

candidates;

schedules;

States Trustee had informed Petit

thus

mere "spectator" at the

of creditors, and did not

regarding her

(3)

(4)

participate in

the Assistant

at the initial meeting

of creditors
creditors
require

that

would
it; and

although
be

it

was

reconvened,

(5)

unlikely

"some

Fessenden filed

the

meeting

of

special

reason"

might

objections

to the

Petit

exemption claims 66 days after his appointment.

On the

merits, the bankruptcy court found

tion claims here

at issue

frivolous, for two

_________

the Petit exempreasons.

First,

Maine law does not permit residents to elect the federal slate of
property exemptions, and

Petit's contention that

Maine resident was found to be "farcical."

she was not

Her real and personal

property was all located in Maine, where she also voted, received
her

mail,

and secured

her driver's

license.

She

adduced no

affirmed.

Petit v. Fessenden (In re Petit), 182 B.R.

_____
_________ ___________

59 (D. Me.

1995); Petit, 182 B.R. 57 (D. Me. 1995).

_____

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

Standard of Review
Standard of Review
__________________

In a bankruptcy appeal, the

the district

court are subject

facts found by the

error.

See
___

conclusions of law made by

to plenary

review; whereas

bankruptcy court are reviewed only

the

for clear

Indian Motocycle Assocs. III Ltd. Partnership

_______________________________________________

v.

Massachusetts Hous. Fin. Agency (In re Indian Motocycle Assocs.

________________________________ _______________________________

III Ltd. Partnership), 66 F.3d 1246, 1249 (1st Cir. 1995).

____________________

B.
B.

The Claim of Exemptions

The Claim of Exemptions
_______________________

Although Petit

renews on appeal most

of the arguments

made below, we do not reach them, see Juniper Dev. Group v. Kahn
___ ___________________
____

(In re Hemingway Transp.), 993 F.2d 915, 935 (1st Cir.) (court of
_______________________

appeals

may affirm

whether

or not

cert. denied,
_____ ______

on

any ground

raised or

addressed in

114 S. Ct. 303

timely claim of exemptions.

______

the

by the

record,

bankruptcy court),

(1993), since she has

first indispensable precondition to

established

not met the

a valid claim of exemptions:

See Fed. R. App. P. 11(a); Byrd

___
____

____________________

concrete

evidence that she had

days prior to the

if

involuntary chapter 7 petition.

Petit had been

exemptions,

resided in Massachusetts for 180

she had

permitted by Maine
not

law to claim

established that

Second, even

the federal

the pending

lawsuit

against Key Bank involved a claim arising "under a crime victim's

reparation
ment[s] .

law," see
___

. . on account

522(d)(11)(D).
under

11 U.S.C.

522(d)(11)(A),

of personal bodily injury,"

Further, Petit had not

522(d) (11)(E)

or for

see id.
___ ___

claimed these exemptions

(compensation for "loss

ings") because Schedule C did not cite to

"pay-

of future earn-

522(d)(11)(E).

v. Ronayne, 61
_______

must

include

F.3d 1026,

in appellate

1029 n.4 (1st

record

all

Cir. 1995)

(appellant

materials essential

to

appellate claim).

A debtor must list the property claimed as exempt under

Bankruptcy Code

in Bankruptcy

alleged

522 within the applicable time limit prescribed

Rule 1007.

debtor

in

an

including any Schedule

See
___

involuntary case

ruptcy

file

order of relief."

An

schedules,

Exempt, "within

Fed. R. Bankr.

Schedules duly filed in a chapter 7 case are "deemed

filed in a superseding case

Id.
___

must

P. 4003(a).

Property Claimed as

15 days after the entry of the

P. 1007(c).

Fed. R. Bankr.

unless the court directs otherwise."

Any extension of the filing

Rule 1007(c)

"may be

shown and

on

notice to

committee

elected pursuant to

deadlines prescribed by Bank-

granted only

the United

on motion

States trustee

705 or appointed

for cause

and to

any

pursuant to

1102 of the Code, trustee, examiner,

may

direct."

(imposing a

Id.;
___

see
___

also
____

Fed.

or other party as the court

R.

Bankr.

heightened showing of "excusable

P.

9006(b)(1)

neglect" where the

motion to extend the time for filing is made after the expiration

of the original 15-day filing period).

Petit

despite the fact

filed no

schedules

that the order for

until

February

25,

relief under chapter 7

1994,

had

been entered on December 10, 1993, which meant that her schedules

were due not later than December 26, 1993, absent a timely motion

to extend the filing period for cause shown or excusable neglect.

Nonetheless, no request to

extend the filing time was

ever made

pursuant to Bankruptcy Rule 1007(c).

165

B.R.

176, 181-82

untimely filed

untimely

filing

(W.D. Va.

schedules waive

is permitted

See, e.g., Bryant v. Smith,

___ ____ ______
_____

1994)

("The court

finds that

a debtor's exemption

unless the

by

the bankruptcy

judge

in his

discretion for cause shown or excusable neglect.").

During

the 15-day window allowed under Bankruptcy Rule

1007(c), Petit did file a motion to convert the chapter 7 case to

chapter 11, but this motion neither excused the failure to comply

with

Bankruptcy

period.

Rule

Rule

1007(c),

nor tolled

the

15-day

filing

Finally, the automatic "deeming" provision in Bankruptcy

1007(c),

chapter 7

see supra
___ _____

schedules were

p. 8,

ever filed.

schedules eventually filed by

First, although

"order for

can afford

Nor did

since no

the chapter

11

Petit cure her procedural default.

an order of conversion

relief" under the chapter

verted, see 11 U.S.C.

___

no refuge

constitutes an

to which the case

348(a), it "does not effect a

the date of . . . the order for relief."

is con-

change in

That is to say, "[s]ec-

tion 348(a) provides that 'those provisions of the Code which are

keyed to

the date of

entry of

operation are unaffected . . .

the order for

by conversion.'"

relief for

their

F & M Marquette
_______________

Nat'l Bank v. Richards, 780 F.2d 24, 25

__________
________

Lawrence P.

(8th Cir. 1985) (quoting

King, Collier on Bankruptcy

______________________

348.02

(15th ed.

1979)); see Schwartz v. Jetronic Indus., Inc. (In re Harry Levin,

___ ________
_____________________ __________________

Inc.), 175 B.R. 560, 570 (Bankr. E.D. Pa. 1994); Leydet v. Leydet
____
______
______

(In re Leydet), 150 B.R. 641, 642 (Bankr. E.D. Va. 1993).
_____________

Since

the

time

limits

4003(a) are

prescribed

in Bankruptcy

Rules

1007(c)

and

keyed to the date of the order for relief, which had

already been entered on

December 10, 1993, the order

sion could

an automatic

not

effect

extension

of

of conver-

the

15-day

deadline (December 26, 1993) for filing schedules.

Second, Petit inexplicably made matters more problemat-

ic by disregarding a

bility, to

cure

ready opportunity, and her

the procedural

default

explicit bankruptcy court order directing

schedules not later than February 23,

P. 9006(b), (c).

chapter

deadline.

Instead,

11 schedules

until

Thus, Petit's

clear responsi-

by complying

with

an

her to file chapter 11

1994.

See Fed. R.
___

Petit failed

to file the

February 25,

two

chapter 11 schedules

Bankr.

required

days beyond

the

were time-barred

even

viewed in the most

failure to notify the

request

strate

favorable light, without

United States Trustee of her

an extension under Rule

either

4003(a) or to

excusable neglect

or good

regard to her

intention to

allege or demon-

cause.

See
___

Fed. R.

Bankr. P. 1007(c), 9006(b)(1).

The Taylor Court recognized that a debtor should not be

______

indefinitely

or

unreasonably

while the trustee

objections

or creditors

P.

extension

debtor files a

reacquiring property

not to

end of

lodge

See Taylor, 112 S. Ct. at

___ ______

F.2d 1303, 1305 (5th Cir. 1987);

4003(b), 9006(b)(3)

before

in

ponder whether or

to a claim of exemptions.

1644; In re Young, 806

___________

Bankr.

delayed

(trustee

30-day period).

must

move for

Unless and

timely claim of exemptions, however,

Fed. R.

filing

until a

as required

10

by

the Bankruptcy

Procedure,

Code

and

the

Federal Rules

of

Bankruptcy

there is no "list of property claimed exempt" for the

trustee or creditors

to oppose.

See, e.g.,
___ ____

Redfield v.
________

Peat,
_____

Marwick and Co. (In re Robertson), 105 B.R. 440, 450 (Bankr. N.D.
_______________ _______________

Ill.

1989) ("The Debtor and

other Defendants here

who seek the

normal

benefit that flows from

timely objected to, rest

a timely claim

of exemption not

their contention on a

late-filed claim

that the Court never allowed to be filed. . . . In this case, the

exemption claim

Court,

late-filed without

notice, motion, or

leave of

is not entitled to the automatic allowance that Bankr. R.

4003(a) gives to

a timely

timely objected to.

He who seeks

Rules must abide by them.").

ple of repose relied

filed exemption

claim if

to benefit by the

it is

not

Bankruptcy

In these circumstances, the princi-

upon in Taylor supports the

______

rulings below.

Taylor, 112 S. Ct. at 1648 ("[Rule 4003(b)] deadlines may lead to

______

unwelcome results, but

they prompt

parties to

act and

produce

finality.").3

The district court judgment is affirmed and the case is

The district court judgment is affirmed and the case is
_______________________________________________________

remanded to the bankruptcy court for further proceedings consisremanded to the bankruptcy court for further proceedings consis_________________________________________________________________

tent with this opinion.

tent with this opinion.
______________________

Costs are awarded to appellees.

Costs are awarded to appellees.
______________________________

____________________

3In

opposing Petit's

claim of

trustee agreed, in principle,

exemptions, the

not to oppose her claim

chapter 11

of exemp-

tions insofar as it pertained to legitimate state-law exemptions,

if any.
and

Consequently,

related

court, Petit
which

to file

we express no opinion on

question whether,

upon

remand

should prevail on any motion

such

a claim

of

excusable neglect.

11

the preliminary

to the

bankruptcy

to extend the time in

exemptions for

good

cause or