ROBERT WOODSIDE, Chief Judge, Bankruptcy
The background for this Order is as follows: On July 24, 1998, the above-captioned Debtors petitioned this court for relief under Chapter 7 of the United States Bankruptcy Code. Among their creditors, Debtors listed Heritage Valley Federal Credit Union (hereinafter "Heritage Valley"). The case was discharged by Order of this court on November 2, 1998 and the case was closed on November 4, 1998. Heritage Valley filed a Motion to Reopen Case with Leave to File Complaint nunc pro tunc on March 29, 1999. Heritage Valley avers that its address was incorrect in Debtors' Schedules. As a result it claims that it never received proper notice of the bankruptcy and was unable to file a timely complaint. Debtors claim that the address they used was a legitimate address of Heritage Valley. Debtors also point to subsequent correspondence from Heritage Valley that refers to Debtors' bankruptcy and request a reaffirmation. Debtors cite this as proof that Heritage Valley had actual notice that the Debtors were in bankruptcy.
Heritage Valley's burden in this case is an elevated one. A movant seeking to reopen a case must provide evidence rather than just mere allegations. In re Irvin, 950 F.2d 1318 (7th Cir. 1991); In re Lochrie, 78 B.R. 257(9th Cir. B.A.P. 1987).
The Third Circuit ruled in Judd v. Wolfe, 78 F.3d 110 (3rd 1996) that it is not necessary to reopen a case to discharge a debt unless the statutory exceptions apply. The Judd decision governs the present case. This is a Chapter 7 no asset case. Under the Judd ruling, the Heritage Valley debt would be discharged whether or not it was properly scheduled or even if it was not listed at all.
The Motion to Reopen, in this case, avers a right to file a complaint under § 523 of the Bankruptcy Code. The Movants, however, have not produced sufficient evidence to support the Motion. Testimony at trial by an agent of Heritage Valley suggests that the allegedly incorrect address on Debtors' schedules was actually the payment center address. Heritage Valley sent a letter to Debtors on September 30, 1999. This letter refers to the bankruptcy and is an offer of reaffirmation. There is some evidence that this letter followed a telephonic conversation between Debtors and an agent of Heritage Valley. It is clear from the record at hand that Debtors did include Heritage Valley in their Schedules and that the address used was a valid, albeit an inconvenient, one. There is every indication in the record that notice was sent to this address. Any failure on the part of Heritage Valley's employees at their payment center to properly forward the notice to the proper department is not sufficient to support the Motion at hand The reaffirmation letters are sufficient, however, to show that Heritage Valley did indeed have actual notice.
AND NOW, this 20th day of August, 1999, after consideration of the Motion to Reopen Case with Leave to File Complaint nunc pro tunc, for the above reasons, this court DENIES the Motion, and ORDERS that the above captioned is and must remained CLOSED.