This memorandum and order arises out of a related adversary action. Kenneth Battley, the newly appointed trustee in this reopened chapter 7 proceeding, has filed an adversary action seeking to recover $120,000.00 of a $300,000.00 settlement arising from a malpractice complaint. The key issue involves an order of abandonment entered September 7, 1989 by the clerk of court. Pursuant to Rule 60(a), I am correcting the order to provide that only scheduled property of the estate was abandoned.

I. Background

        Russell Pace filed a chapter 11 bankruptcy on September 24, 1986. The case was converted to a chapter 7 proceeding on December 9, 1986. Bennie Leonard was appointed the chapter 7 trustee. Pace listed four liquor licenses as exempt property in his schedules. He failed to otherwise list the licenses. Pace did not own the licenses. Security interests he retained in them were invalid. Post-bankruptcy, but before the trustee's general abandonment, Pace filed a malpractice action against his former attorneys for failure to perfect his security interests. This
    2 ABR 35  malpractice action was never listed in Pace's bankruptcy schedules, although a vague mention of the suit was made in an interim report by then trustee Bennie Leonard.

        Leonard filed a motion for abandonment on February 21, 1989. It stated in part: "Any property scheduled in the bankruptcy petition and not heretofore sold, abandoned, or allowed as exempt should be abandoned as burdensome property . . . (emphasis added). Notice of the motion was sent to the matrix in conjunction with the trustee's final account. A notice of filing of final account of trustee, of hearing on application for compensation and hearing on abandonment of property by the trustee was filed May 8, 1989. The form notice of abandonment served in conjunction with most final accounts in 1989 stated:

The Trustee's application to abandon the following property will be heard and acted on: Scheduled assets not heretofore sold, abandoned or allowed as exempt by the trustee.

Notice having been given and no objection having been filed;

IT IS ORDERED that property of the estate in the above-captioned case which has not heretofore been sold, abandoned or allowed as exempt be and hereby is abandoned to the debtor.

II. Rule 60(a)

        Bankruptcy Rule 9024 makes Rule 60 of the Federal Rules of Civil Procedure applicable to bankruptcy orders and judgments. Rule 60(a) provides:

        Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

The Ninth Circuit has held:

        A judge may use Rule 60(a) "to make an order reflect the actual intentions of the court, plus necessary implications." Jones & Guerrero Co. v. Sealift Pacific, 650 F.2d 1072, 1074 (9th Cir.1981). Errors correctable under Rule 60(a) include those where what is spoken, written or recorded is not what the court intended to speak, write or record. Waggoner v. R. McGray. Inc., 743 F.2d 643, 644 (9th Cir. 1984). A court may correct errors of this type even when not committed by the clerk; "it matters not whether the magistrate committed it-as by mistakenly drafting his own judgment--or whether his clerk did so . . . ." Dura-Wood Treating Co.

    2 ABR 37 
v. Century Forest Industries, 694 F.2d 112, 114 (5th Cir. 1982); see also Jones & Guerrero, 650 F.2d at 1074 (rule allows correction of clerical mistakes not made by clerk). Thus, under Rule 60(a), a court has "very wide latitude in correcting clerical mistakes in a judgment." Woodworkers Tool Works v. Byrne, 191 F.2d 667, 676 (9th Cir. 1951)

        Kate Garner, the deputy clerk who signed the order of abandonment in 1989, made a mistake. While the motion filed by the trustee clearly sought to abandon "property scheduled in the bankruptcy petition", and the notice of abandonment sent to creditors likely contained a similar phrase, the order refers only to abandonment of "property of the estate". The word "scheduled" should have appeared before "property of the estate", in accordance with the motion and notice. When Kate Garner executed the order on behalf of the clerk's office through clerical mistake, or an oversight or omission on her part, a key word was omitted from the order. The clear intent of the court was to abandon only scheduled assets that were not sold, abandoned or exempt. Concealed, unscheduled property was not to be abandoned. Pursuant to Rule 60(a) this court has the power to correct the order at any time on its own initiative.

III. Conclusion

        The order entered September 7, 1989 by deputy clerk Kate Garner was erroneous. It would allow a concealed, unscheduled

    2 ABR 38 
asset of $120,000.00 to be abandoned to the debtor, contrary to the clear intent of the motion. This erroneous form order, issued by a deputy clerk, should be corrected.

        Therefore, in accordance with Rule 60(a), it is hereby ordered that the order entered by Kate Garner on behalf of Wayne W. Wolfe, Clerk of the United States Bankruptcy Court, on September 7, 1989 shall be amended to state as follows:

        Notice having been given and no objection having been filed;

        It is ordered that scheduled property of the estate in the above-captioned case which has not heretofore been sold, abandoned or allowed as exempt be and hereby is abandoned to the debtor.

DATED: June 14, 1991.

DONALD MacDONALD IV
United States Bankruptcy Judge