Summary
compiling cases, and holding that complaint returned by clerk because the form of the filing fee did not comply with the Local Rule, would be deemed to be filed on the date it was first received by clerk
Summary of this case from Blake v. Traster (In re Traster)Opinion
Case No. 01-27514 whb, Chapter 7, Adv. Proc. No. 01-0918
June 5, 2002
Jack F. Marlow, Shuttleworth, Williams, Harper, Waring Derrick, PLLC, Memphis, TN, Attorney for Debtor.
James D.R. Roberts, Roberts Associates, Nashville, TN, Attorney for Patterson Dental Supply, Inc.
OPINION AND ORDER DENYING MOTION TO DISMISS COMPLAINT
The Debtor and Defendant filed his motion to dismiss the complaint objecting to the Debtor's discharge, which was filed by Patterson Dental Supply, Inc. ("Patterson"), and the motion asserts that the complaint was untimely under the applicable rules. At the hearing on the motion, the parties stipulated that the facts were not in dispute. The relevant facts are as follows: Patterson was granted by order until October 10, 2001, to file its complaint. The complaint was mailed by Express Mail and it was received by the Clerk of this Court on October 10; however, on October 11 the Clerk returned the complaint and cover sheet to Jane J. Buffaloe, then the attorney for Patterson, due to the Clerk's understanding that Ms. Buffaloe had written a personal check, rather than a business check, for the $150 filing fee. Local Bankruptcy Rule 1006(b)-1(a) requires that filing fees be paid "by cashier's check, money order, attorney's business check, or cash." Ms. Buffaloe returned the complaint, cover sheet and another check to the Clerk by letter dated October 22, and the Clerk stamped the complaint for filing on October 25. The Debtor was served and answered the complaint, and his motion to dismiss was then filed. Patterson now has new counsel, and Ms. Buffaloe's affidavit is consistent with these facts.
ISSUE
The issue before the Court, therefore, is a legal one: Was this complaint timely filed when it was first received by the Clerk?
DISCUSSION
There is authority from the Court of Appeals from this Circuit, as well as other authority, that determines the outcome of this issue. First, Federal Rule of Bankruptcy Procedure 5005 states, in relevant part: "The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices." FED. R. BANKR. P. 5005(a)(1). The Advisory Committee Notes to the 1993 Amendments to Rule 5005 declares:
Subdivision (a) is amended to conform to the 1991 amendment to Rule 5(e) F.R.Civ.P. It is not a suitable role for the office of the clerk to refuse to accept for filing papers not conforming to requirements of form imposed by these rules or by local rules or practices. The enforcement of these rules and local rules is a role for a judge.
Prior to, but consistent with, the 1993 amendments, the Sixth Circuit held that a complaint to determine nondischargeability was timely filed with the bankruptcy court although the plaintiff did not file summons simultaneously with the complaint as required by local rules. New Boston Dev. Co. v. Toler (In re Toler), 999 F.2d 140 (6th Cir. 1993). The clerk in Toler had stamped the complaint filed when it was presented. A week later the clerk effaced the stamp and returned the complaint to plaintiff with a letter stating that the local rules required summons to be filed simultaneously with the complaint. Toler noted the 1991 amendment to Federal Rule of Civil Procedure 5(e) and its incorporation in Federal Rule of Bankruptcy Procedure 7005. "Therefore, as of December 1, 1991, filing of a complaint under the Federal Rules of Civil Procedure, which are incorporated into the Bankruptcy Rules under Bankruptcy Rule 7005, is accomplished when the complaint is delivered to the clerk of the appropriate court. . . . Even for documents tendered to a court clerk prior to December 1, 1991, we hold that filing takes place when the documents are tendered to the court clerk, local rules notwithstanding." Toler, 999 F.2d at 142 (citing Wilson v. City of Zanesville, 954 F.2d 349, 352-53 (6th Cir. 1992) (holding local rules may not displace the Federal Rules of Civil Procedure)). Toler resolved a conflict between two inconsistent Sixth Circuit decisions. See id.
Recent amendments to the Federal Rules of Civil Procedure will require bankruptcy clerks to accept virtually any document offered for filing, even where it patently does not meet even the most basic requirements of the Rules. . . .
. . . .
. . . A complaint painted on the side of an elephant would presumably have to be filed until the court rules, after notice to the author, that it must be stricken for noncompliance with the rules regarding paper size.
Hon. John K. Pearson, . . . But Please Don't File an Elephant, 12 AM. BANKR. INST. J. 14 (Nov. 1993) (citing Loya v. Desert Sands Unified School Dist., 721 F.2d 279, 280 (9th Cir. 1983), where a complaint was submitted on longer paper than allowed by local rules) ("To uphold the Clerk's rejection of it would elevate to the status of a jurisdictional requirement a local rule designed merely for the convenience of the court's own record keeping. While such interests are important, local rules to serve them should not be applied in a manner that defeats altogether a litigant's right to access to the court.").
"However, Bankruptcy Rule 7005 is not the savior of the careless practitioner. In many districts, the clerks simply submit to the judge a proposed order striking the defective pleading. If the court executes the order, the reasoning in Toler provides no solace." Kathryn J. Derr and Angela K. Layden, Procedural Defects Do Not Prevent Filing of Pleading, 12 Am. Bankr. Inst. J. 29 (Feb. 1994). See also, Ohio Farmers Ins. Co. v. Leet (In re Leet), 274 B.R. 695 (B.A.P. 6th Cir. 2002), where the Bankruptcy Appellate Panel found the complaint untimely when it was mailed but not received by the Clerk until two days after the filing deadline).
Toler cited three bankruptcy cases which held that filing was effective upon tender, and in each the filing fee and cover sheet were missing. See Toler, 999 F.2d at 142 ("The consistent rule has been that the filing of a document takes place when it is tendered to the bankruptcy court clerk.") (citing Cosper v. Frederick, 73 B.R. 636 (Bankr.N.D.Fla. 1986) ("There is no express code provision or rule requiring that a complaint be accompanied by a cover sheet and filing fee before the Clerk is allowed to accept it for filing."); Williston Coop. Credit Union v. Horob (In re Horob), 54 B.R. 693 (Bankr.D.N.D. 1985) ("Decisions indicate that a complaint is filed and an action commenced whenever it is received by a clerk of the court. . . . This Court believes that the failure to pay the filing fee in the first instance and the failure to provide an adversary cover sheet should not operate to foreclose the Credit Union from proceeding to the merits of its claim."); Edwards v. Whitfield (In re Whitfield), 41 B.R. 734 (Bankr.W.D.Ark. 1984) ("It is for this Court and not the clerk, however, to determine the legal sufficiency of documents tendered for filing. This is especially true when the actions of the clerk result to alter the substantive rights of the parties.")); see also In re Robinson, 506 F.2d 1184, 1186 (2d Cir. 1974) ("Finally, we note that the purpose of a filing deadline is to bring the bankruptcy proceeding to an end and to permit an expeditious determination of whether there is any reason why the bankrupt should not be discharged. Here this purpose was fully accomplished by the bank's act of filing its objections within the required time period. Whether the filing fees were paid on that day, the next day or the next week does not effect the fulfillment of the deadline's purpose."); Stipancich v. Colston (In re Colston), 244 B.R. 770 (Bankr.S.D.Ohio 2000) ("The term 'filed' for the purpose of filing complaints 'means that the pleadings 'are placed in the possession of the Clerk of the Court.'' A complaint, timely filed with the clerk's office, is not rendered untimely by the late payment of the filing fee after the deadline.") (citations omitted); Kirkley v. Emory (In re Emory), 219 B.R. 703 (Bankr.D.S.C. 1998) (filing fee missing); In re Shannon, 180 B.R. 189, 190-91 (Bankr.W.D.Tenn. 1995) (Brown, J.) ("Fed.R.Bankr.P. 5005(a) states that '[t]he clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.' Thus, the Bankruptcy Court clerk is required to accept all IFP [in forma pauperis] applications for filing, whether considered timely or not. It is then a judicial function to determine the effects of any untimeliness."). Notably, Evans v. Pace (In re Pace), 130 B.R. 338 (Bankr.N.D.Fla. 1991), held that a complaint was timely filed when presented to the clerk though the caption was incorrect and the $120 check for the filing fee was unsigned.
Additionally, Toler cited a non-bankruptcy case, Cintron v. Union Pacific. R.R. Co., 813 F.2d 917 (9th Cir. 1987), which held the complaint was filed when tendered though the clerk returned the complaint because of overpayment of a filing fee. "The clerk's decision to handle the overpayment by returning the complaint along with the check was one based merely on the convenience and smooth operation of the clerk's office. The appellant should not be denied a forum due to his overpayment of the filing fee." Cintron, 813 F.2d at 921; see Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir. 2001) ("'We have previously held that a complaint is filed when it is placed in the actual or constructive custody of the clerk [of the court], despite any subsequent rejection by [the clerk] of the pleading for non-compliance with a provision of the local rules.'") (alterations in original) (citations omitted); Searcy v. City of Dayton, 38 F.3d 282, 288 (6th Cir. 1994) (holding cross-appeal was filed when tendered to the clerk despite lack of filing fee); Rodgers ex rel Jones v. Bowen, 790 F.2d 1550, 1552 (5th Cir. 1986) ("The Supreme Court has held, with respect to 28 U.S.C.A. § 1917, that untimely payment of a filing fee does not vitiate the validity of a notice of appeal. Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 46 (1955) (per curiam). We perceive no distinction between § 1917 and § 1914, which requires a filing fee for complaints, that would lead to a different conclusion here. We therefore hold that a complaint is 'filed' for statute of limitations purposes when it is 'in the actual or constructive possession of the clerk,' regardless of the untimely payment of the required filing fee.") (citations omitted); Third Nat'l Bank v. Winner Corp. (In re Winner Corp.), 632 F.2d 658, 660 (6th Cir. 1980) ("Failure to pay the filing fee [for notice of appeal] before the expiration of the ten-day period does not defeat the court's jurisdiction to consider the appeal."); see also Gallagher v. Metro. Life Ins. Co., No. 17464, 1996 WL 183029 (Ohio Ct.App. 1996) ("[T]he Board's rationale would elevate the fee requirement contained in a local rule, transforming it from one of procedural status to one having jurisdictional import."); cf. Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (holding that Title VII complaint is deemed filed when the in forma pauperis motion is granted or, if denied, when the filing fee is paid within 90 days of receiving right to sue letter: "An application for IFP status should not permit a litigant an indefinite suspension of time in which to file a complaint; such a result would thwart congressional intent for a shorter limitations period in Title VII cases in which damages such as backpay may be mounting.").
CONCLUSION AND ORDER
Based upon the holding and implications of Toler, as well as Bankruptcy Rule 5005 and the other authority cited herein, this Court concludes that Patterson's complaint was timely filed on October 10, 2001, the date it was received by the Clerk. It is irrelevant whether the Clerk erred in considering Ms. Buffaloe's check to be a personal rather than business check. The Clerk's error was in returning the complaint to Ms. Buffaloe rather than marking it filed on October 10. It is for the Court rather than the Clerk to determine the effect of an unpaid or questioned filing fee. The Clerk was obligated by Rule 5005(a)(1) to accept the complaint for filing, regardless of the payment of the required filing fee in an appropriate form.
The complaint having been timely filed, the Debtor's motion to dismiss the complaint is DENIED.
A further pretrial conference is set in this proceeding on July 25, 2002, at 10:00 a.m. The conference may be conducted telephonically for the convenience of counsel.
SO ORDERED.