                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    In re: CHARLES G. DICKINSON,

                Debtor.
                                                         No. 99-1506
                                                      (D.C. No. 99-N-126)
    VONNE IRENE TORREZ,                                    (D. Colo.)

                Plaintiff-Appellant,
    v.

    CHARLES G. DICKINSON,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , KELLY , and HENRY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Vonne Irene Torrez appeals the district court’s order affirming

a decision of the bankruptcy court denying her claim that a debt owed to her by

defendant, Charles G. Dickinson, the debtor in bankruptcy, should be excepted

from discharge in bankruptcy under 11 U.S.C. § 523(a)(6). Plaintiff hired

defendant, an attorney, to assist her in paying off a promissory note encumbering

property she owned. Plaintiff alleges in her complaint that defendant advised her

to take actions which were not in her best interest, simultaneously represented

parties with conflicting interests, and acted negligently in his representation of

her, resulting in the loss of her property to foreclosure. Under § 523(a)(6),

a debtor is denied discharge from liabilities arising out of his “willful and

malicious injury” to another or another’s property. Following a bench trial, the

bankruptcy court dismissed her complaint, finding that defendant’s representation

of plaintiff was incompetent and unprofessional, but “was not intentionally

injurious within the meaning of § 523(a)(6).” Appellant’s App. at 27.

       We review the bankruptcy court’s legal determinations de novo and

its factual findings for clear error.   See Osborn v. Durant Bank & Trust Co.

(In re Osborn) , 24 F.3d 1199, 1203 (10th Cir. 1994). We affirm the bankruptcy

court’s dismissal of plaintiff’s complaint, but for a reason different than that

given by the bankruptcy and district courts.




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      Defendant has sought to have plaintiff’s complaint dismissed as untimely

because it was filed more than sixty days after the first date set for the creditors’

meeting. The time period for filing complaints under § 523(c) is governed by

Fed. R. Bankr. P. 4007(c), which stated, prior to subsequent amendment, that

“[a] complaint to determine the dischargeability of any debt pursuant to § 523(c)

of the Code shall be filed not later than 60 days following the first date set for the

meeting of creditors held pursuant to § 341(a).” Extension of this sixty-day

period may only be granted for cause upon a motion filed before the time has

expired. See id . The bankruptcy court may enlarge the time for filing a

complaint under Rule 4007(c) “only to the extent and under the conditions stated”

in the rule. Fed. R. Bankr. P. 9006(b)(3).

      Here, defendant filed his voluntary Chapter 7 bankruptcy petition on

July 31, 1996. The first meeting of creditors held pursuant to § 341 was initially

set for September 9, 1996. Because the bankruptcy court failed to mail out

notices of the creditors’ meeting, however, the first creditors’ meeting was reset

for October 7, 1996. Plaintiff received a copy of the notice setting the October 7,

1996 meeting. The notice informed plaintiff that the bar date for filing a § 523(c)

complaint alleging the nondischargeability of any of defendant’s debts was

December 6, 1996, sixty days after the first date set for the creditors’ meeting.




                                          -3-
Due to continuations, the creditors’ meeting was not actually held until

April 18, 1997.

      Plaintiff filed her § 523(c) complaint on June 12, 1997, more than sixty

days after the December 6, 1996 bar date. Plaintiff never filed any requests for

extensions of time to file her complaint. Defendant immediately filed a motion to

dismiss plaintiff’s complaint as untimely under Rule 4007(c). In response,

plaintiff argued that Rule 4007(c)’s bar date should be triggered by the date the

first creditors’ meeting was actually held, rather than the first date set for the

meeting. The bankruptcy court denied defendant’s motion to dismiss in a minute

order. Defendant then filed an interlocutory appeal of that decision with the

district court, which was summarily denied. As noted, the bankruptcy court

ultimately dismissed plaintiff’s complaint on the merits. In response to plaintiff’s

appeals, defendant reasserted his argument in both the district court and this court

that plaintiff’s complaint was barred under Rule 4007(c). The district court

affirmed the bankruptcy court’s dismissal on the merits, and concluded that it

need not reach the Rule 4007(c) issue.

      We now conclude that the plaintiff’s complaint was, indeed, untimely

filed under Rule 4007(c). Following the literal “first date set” language in

Rule 4007(c), an “overwhelming majority of courts” have held that the sixty-day

limitations period in Rule 4007(c) runs from the date first set for the § 341


                                           -4-
creditors’ meeting, regardless of when the meeting was actually held. 3 Norton

Bankr. L. & Prac. § 47:68 (2000) (“overwhelming majority of courts”);       see, e.g. ,

Peerless Ins. Co. v. Miller (In re Miller)   , 228 B.R. 399, 401 (B.A.P. 6th Cir.

1999) (collecting cases).   1
                                We concur that Rule 4007(c) unambiguously provides

that a § 523(c) complaint to determine dischargeability must be filed within sixty

days of “the first date set” for the meeting of creditors.

       This court has held that the time limits of Rule 4007(c) must be “strictly

enforced.” Themy v. Yu (In re Themy) , 6 F.3d 688, 689 (10th Cir. 1993).

Bankruptcy Rules 4007(c) and 9006(b)(3) “reflect an important policy or purpose

and their enforcement is basic to proper bankruptcy administration.”       H.T. Paul

Co. v. Atteberry (In re Atteberry)    , 194 B.R. 521, 525 (D. Kan. 1996) (quotation

omitted). Here, sixty days following the first date set for the meeting of creditors

was December 6, 1996. Plaintiff had actual notice of that bar date, yet did not

file her complaint by that deadline. Nor did she move for an extension of time



1
       Rule 4007(c) was amended in 1999 to eliminate the word “held” and now
reads, “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 advisory committee notes state that this
amendment was made “to clarify that the deadline for filing a complaint to
determine the dischargeability of a debt under § 523(c) of the Code is 60 days
after the first date set for the meeting of creditors, whether or not the meeting is
held on that date [and that t]he time for filing the complaint is not affected by
any delay in the commencement or conclusion of the meeting of creditors.”
Fed. R. Bankr. P. 4007(c) (Advisory Committee Notes).

                                             -5-
within which to file her complaint.     See Rule 4007(c) and 9006(b)(3). Plaintiff

notes that we have recognized that a bankruptcy court has the equitable power

under 11 U.S.C. § 105(a) to allow a late-filed complaint when the bankruptcy

court was responsible for affirmatively misleading a litigant.      See In re Themy ,

6 F.3d at 690. This exception, however, has no application here. Thus,

plaintiff’s complaint was untimely.

       Plaintiff contends that defendant waived any objection to the untimeliness

of her complaint by failing to file a cross-appeal asserting this issue. Defendant

was not required to file a cross-appeal, however, because an appellee “may defend

the judgment won below on any ground supported by the record without filing

a cross-appeal.”   Tinkler v. United States ex rel. F.A.A.   , 982 F.2d 1456, 1461 n.4

(10th Cir. 1992) (quotation omitted).

       The judgment of the United States District Court for the District

of Colorado dismissing plaintiff’s complaint is AFFIRMED.



                                                         Entered for the Court



                                                         Paul J. Kelly, Jr.
                                                         Circuit Judge




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