23 A 00367,19 B 21150
Plaintiff filed a complaint seeking a judgment finding that the debt Debtor owed Plaintiff is excepted from discharge under 11 U.S.C. § 523(a)(3). Plaintiff was a secured creditor in Debtor’s two prior bankruptcy cases, but Debtor did not disclose Plaintiff’s debt or the underlying collateral in her third bankruptcy case. Debtor confirmed and completed a plan in her third bankruptcy case, paying one hundred percent to creditors, and receiving a substantial refund. Plaintiff had no opportunity to timely file a proof of claim and received no distribution under the plan. Plaintiff filed a motion for summary judgment, to which Debtor did not respond. HELD: Nonmovant’s failure to respond to the motion for summary judgment did not result automatically in a judgment for movant. Rather, movant must show that summary judgment is proper given the undisputed facts taken in the light most favorable to the nonmovant. Plaintiff’s debt was excepted from discharge under § 523(a)(3)(A) because Debtor’s failure to list or schedule Plaintiff resulted in denying Plaintiff the opportunity to timely file a proof of claim. Debtor alleged she had notified Plaintiff of the bankruptcy case during state court litigation, but the notice alleged was 15 months too late for Plaintiff to timely file a proof of claim. Debtor’s allegation that she innocently omitted Plaintiff from her schedules believing the debt had been paid did not justify application of equitable exception to 523(a)(3)(A). The equitable exception applies in “no asset” cases where creditor has been unharmed by the omission, but Debtor did have assets and Plaintiff had been denied a distribution because of the omission