In re Oberlin

Full title: In Re: Doris Helen Oberlin, Debtor

Court: United States Bankruptcy Court, N.D. Ohio, Western Division

Date published: Nov 2, 2005

Case No. 05-0312, Miscellaneous Proceeding (Bankr. N.D. Ohio Nov. 2, 2005)

Opinion

Case No. 05-0312, Miscellaneous Proceeding.

November 2, 2005

ORDER

MARY WHIPPLE, Bankruptcy Judge

This matter is before the court on a "Declaration That Party Was Unable to File in a Timely Manner Due to Language of General Order 03-1" filed by counsel on behalf of Doris Helen Oberlin ("Movant"). The court construes the document as a motion to deem Movant's bankruptcy petition as filed on October 16, 2005, the date the petition was delivered to the United States Postal Service. For the reasons that follow, the motion will be denied.

This court's General Order 03-1, In re Provisions for Mandatory Electronic Case Filing, provides, in relevant part, as follows:

All pleadings and other papers filed in all cases and proceedings, whether pending or new, shall be filed electronically according to the procedures established by the Court, except as follows:

a. Parties without legal representation ( pro se parties) shall file all pleadings and other papers conventionally and not electronically.

Movant states that she interpreted this language to permit filing by placing her petition in the U.S. Mail. She attempted to file a Chapter 7 petition pro se and submits a receipt indicating delivery to the United States Postal Service at 9:02 p.m. on Sunday October 16, 2005. The clerk did not receive the petition, however, until Monday October 17, 2005.

The court finds no reasonable basis for interpreting General Order 03-1 to provide that filing is completed simply by placing the document in the U.S. mail. The Federal Rules of Bankruptcy Procedure provide that "[a] petition commencing a case under the Code shall be filed with the clerk." Fed.R.Bankr.P. 1002(a). Similarly, Rule 5005(a) provides that "papers required to be filed by these rules . . . shall be filed with the clerk" or, if the judge permits, with the judge, "in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk." Interpreting similar language in Federal Rule of Civil Procedure 5(e), the Sixth Circuit explained that if mailed, filing with the clerk of the court "'is accomplished only when actually received by the clerk or when placed in the clerk's post office box.'" Torras Herreria y Construcciones v. M/V Timur Star, 803 F.2d 215, 216 (6^th Cir. 1986) (citing Lee v. Dallas County Bd. of Educ., 578 F.2d 1177, 1178, 1179 (5^th Cir. 1978)). "Filings reaching the clerk's office after a deadline are untimely, even if mailed before the deadline."¹ Id. (finding that motion was not timely filed where last extension of time to file was to November 30, and district court did not receive motion, which was mailed on November 30, until December 5); see also Scott v. United States Veteran's Amin., 929 F.2d 146, 147 (6^th Cir. 1991) (finding the relevant date for purposes of a statutory time limitation is the date a complaint is received by the clerk). The court finds nothing in General Order 03-1 that would mislead Movant into believing that filing is complete on mailing of documents filed conventionally rather than electronically.

1 Although the Supreme Court has demonstrated a willingness to extend a special "mailbox rule" to persons who are incarcerated and are filing their legal documents pro se, see Houston v. Lack, 487 U.S. 266, 276 (1988), that rule is inapplicable in this case.

THEREFORE, for the foregoing reasons, good cause appearing,

IT IS ORDERED that the motion to deem the bankruptcy petition submitted by Doris Helen Oberlin to have been filed on October 16, 2005, is DENIED.