How to Count Backwards

Deadlines are important. As a result, it is important to know when a deadline falls. Fed.R.Bankr.P. 9006(a) explains that the last day of a period is not counted if it falls on a Saturday, Sunday or legal holiday. In that instance, the time period “runs until the end of the next day which is not one of the aforementioned days.” This is straightforward when the period runs forward. Thus, if an action is required to be taken 25 days after a given date and the last day falls on Sunday, the deadline would expire at the end of Monday unless Monday was a legal holiday. In this case, the 25 day period becomes an 26 day period. However, what happens when time is counted backwards? Assume that an action must be taken 25 days before a set date and the last day falls on a Saturday. Does the deadline expire on Friday (in which case the deadline is expanded to 26 days) or on Monday (in which case the deadline is truncated to 23 days).

San Antonio Bankruptcy Judge Leif Clark recently ruled that “next day” means Monday, not Friday. While acknowledging that “both conclusions are reasonable under the circumstances” he noted that “alas, there can be only one deadline.” He stated that, “Because the calculation of this deadline requires counting backward, the court finds that the determination of this ‘next day’ should continue counting backward. Therefore, when, as was the case here, the 25th day falls on a Saturday, Sunday or holiday, the deadline must be the next countable day before the 25th day.” In re Russell Keith Dick, No. 05-56196 (Bankr. W.D. Tex. 1/11/08).

Counting backward is a trap for the unwary. When counting forward, the rule protects the person taking the action who gets another day. However, when counting backward, the rule protects the person who is waiting for the action to be taken. Thus, the next day is actually the prior day when viewed on the calendar.