Case No. 01-60808-T.United States Bankruptcy Court, E.D. Virginia, Richmond Division
November 20, 2001
MEMORANDUM OPINION AND ORDER
DOUGLAS O. TICE, JR., United States Bankruptcy Judge
A combined preliminary and final hearing was held October 24, 2001, on plaintiff’s motion for relief from stay. The motion requests that the court lift the automatic stay to allow plaintiff to proceed against the debtor on a property and debt settlement show cause filed by her and presently pending in the Circuit Court of Hanover County, Virginia.
Facts and Argument
Debtor filed this chapter 7 case on May 7, 2001, and received a discharge on August 23, 2001.
The debtor opposes the motion and argues that the issue raised by the plaintiff in state court relates to a type of debt described in Bankruptcy Code § 523(a)(15). Debtor asserts that the debt has been discharged due to plaintiff’s failure to timely file a complaint determining the dischargeability of the debt in this court.
Plaintiff’s position is that the debt is a marital obligation excepted from discharge under § 523(a)(5) and that the state court has jurisdiction to determine this issue notwithstanding debtor’s discharge. Plaintiff’s counsel advised the court that no complaint was filed in debtor’s bankruptcy case because plaintiff was not aware of the bankruptcy until after she filed the state court show cause proceeding.
Conclusions of Law
If the debt in question is a marital obligation excepted from discharge under § 523(a)(5) then pursuant to § 523(c) the Hanover Circuit Court has concurrent jurisdiction with the bankruptcy court to decide this issue. A proceeding under § 523(a)(5) may be filed in either court at any time without regard to the sixty day limitation stated in Bankruptcy Rule 4007(c).
If plaintiff’s counsel is correct that plaintiff had no actual notice of debtor’s bankruptcy case, an argument can be made that plaintiff has not been precluded by the normal time limitation from filing a complaint in this court under § 523(a)(15). Notice to a creditor of the necessity to file a dischargeability complaint is usually a matter of due process. See Manufacturers Hanover v. Dewalt (In re Dewalt), 961. F.2d 848, 849 (9th Cir. 1992); Kamjo Corp. v. McMichael (In re McMichael), 146 B.R. 661, 662 (Bankr.E.D.Va. 1991). But see Herman v. Bateman (In re Bateman), 254 B.R. 866, 868 (Bankr. D. Md. 2000), note 5.
Accordingly, the court finds that the motion for relief from stay should be granted for the limited purpose of permitting the plaintiff to litigate any issue of dischargeability under § 523(a)(5).
IT IS THEREFORE ORDERED that the motion of plaintiff Patricia C. Epps for relief from the automatic stay in this bankruptcy case is granted to the extent that plaintiff may proceed in state court to determine the dischargeability in bankruptcy of any indebtedness of debtor Douglas Neal Epps of a type described in 11 U.S.C. § 523(a)(5).