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In re Diamond

United States Bankruptcy Appellate Panel For the Eighth Circuit

April 22, 2014

In re: Richard Allen Diamond, Debtor; Michael Jay Goldstein, Creditor - Appellant
v.
Richard Allen Diamond, Debtor - Appellee

Submitted March 18, 2014

Appeal from United States Bankruptcy Court for the Eastern District of Missouri - St. Louis.

Michael Jay Goldstein, Creditor - Appellant, Pro se, East Brunswick, NJ.

For Richard Allen Diamond, Debtor - Appellee: Charles Markwell, Jr., MARKWELL LAW, LLC, O'Fallon, MO.

Before FEDERMAN, Chief Judge, KRESSEL and SALADINO, Bankruptcy Judges.

OPINION

Page 220

KRESSEL, Bankruptcy Judge

Michael Jay Goldstein appeals from an order of the bankruptcy court directing the clerk to reject the filing of his dischargeability complaint. The court ordered the complaint and a subsequent brief to be returned to him because he failed to make a motion to reopen the underlying bankruptcy case. For the reasons that follow, we reverse.

BACKGROUND

On November 29, 2011, Richard Allen Diamond filed a chapter 7 bankruptcy petition in the Eastern District of Missouri. February 28, 2012 was set as the deadline for filing a complaint to determine the dischargeability of certain debts under 11 U.S.C. § 523(c).

On February 15, 2012, Goldstein filed a motion in Diamond's bankruptcy case entitled " Motion to Extend." The motion requested a sixty day extension of proceedings and withholding of the entry of the discharge order. Goldstein claimed that he was a creditor but he did not receive proper notice of the bankruptcy case. He intended to pursue an adversary proceeding to determine the dischargeability of his claim.

The bankruptcy court did not interpret Goldstein's motion to include a request for an extension of the February 28, 2012 filing deadline. Instead, it found the request

Page 221

to be one for " abatement of the case for sixty days." Finding there was no cause for such relief, it denied the motion. The court also denied the ...


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