816 P.2d 417 (1991)
KEESUN PARTNERS, a Wyoming general partnership, Plaintiff and Respondent,
v.
FERDIG OIL COMPANY, INC. a corporation; and Somont Oil Co., Inc., a corporation, Defendants, Counterclaimants and Appellants.
v.
KEESUN PARTNERS, a Wyoming general partnership, consisting of V.C. Knight, J. Kenneth Finstad, Ronald Vanderhoef, individually, and as partners; and John Does 1, 2, 3, 4, and 5 and Doe Companies 1 and 2, corporations, individually, and as partners of Keesun partnership. Counterdefendants.
No. 90-517.
Supreme Court of Montana.
Submitted on Briefs May 24, 1991.
Decided August 1, 1991.
*418 Gregory H. Warner and George R. Crotty, Jr., Graybill, Ostrem, Warner & Crotty, Great Falls, for defendants, counterclaimants and appellants.
Carolyn Ostby, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for plaintiff and respondent.
GRAY, Justice.
The appellants, Ferdig Oil Company, Inc. and Somont Oil Co., Inc. (referred to collectively as Ferdig/Somont), appeal from an order of the District Court of the Ninth Judicial District, Toole County, granting partial summary judgment in favor of the respondent, Keesun Partners. We affirm.
Ferdig/Somont raises the following issues on appeal:
1. Did the District Court err in determining that there are no genuine issues of material fact as to the absence of a contract between the parties?
2. Did the District Court err in holding that even if a contract did exist between the parties, its enforcement is barred by the statute of frauds?
3. Did the District Court err in refusing to consider remedies of rescission or restitution and the return of the parties to the status quo in granting quiet title relief?
The appellants, Ferdig Oil Company, Inc. and Somont Oil Co., Inc., are Montana corporations in oil and gas production and *419 processing. Both corporations have the same ownership and same management. Charles Jansky is an officer of both corporations. Ferdig is involved primarily in the gathering and processing of natural gas. Somont is involved primarily in the production of oil and natural gas. The respondent, Keesun Partners, is a Wyoming oil and gas producing partnership which was formed in October of 1987. J. Kenneth Finstad is a partner in Keesun and acts as operations manager.
Ferdig/Somont constructed and operates a gas processing plant located in Section 28 of Township 35 North, Range 4 West, Toole County, Montana. The original intent of Ferdig/Somont in constructing the plant was to process both sweet and sour gas from its own wells located adjacent to the plant. In the summer of 1987, Ferdig/Somont presented its lenders with proposals which called for extending its gas gathering pipeline system through the northern part of Township 35 North, Range 4 West into the southern part of Township 36 North, Range 4 West. Ferdig/Somont determined that its own well in Section 34 of Township 36 North, Range 4 West, along with another well in that section, justified the installation of that pipeline.
Shortly thereafter, Mr. Jansky and Mr. Finstad discussed the possibility of a market for gas from additional wells drilled in Section 34. On September 16, 1987, Mr. Jansky sent a letter to Mr. Finstad and Don Lee, a Shelby attorney who represented both Ferdig/Somont and Finstad. The stated purpose of the letter was to "summarize the deal we [Ferdig/Somont] are proposing to enter into with Mr. Finstad, et al." for the purchase of wellhead gas on a long-term basis. Neither Mr. Finstad nor Keesun, after its formation in October of 1987, responded in writing to Mr. Jansky's letter.
Keesun pursued its drilling activities on acreage controlled by Keesun and on acreage acquired from Ferdig/Somont and others through farmout agreements or outright assignments. Although no written gas purchase contract was in place, Ferdig/Somont took deliveries of gas from Keesun on a month to month basis. The parties apparently were hopeful that an acceptable gas purchase contract would eventually be agreed upon and executed.
Contemporaneous with Keesun's drilling activities, Mr. Jansky sent a number of letters to Keesun setting forth his understanding of the state of the negotiations, summarizing proposals and making new offers. Keesun did not respond in writing to any of this correspondence; it does appear from the record that ongoing negotiations occurred, either directly or through attorney Don Lee.
Eventually, a meeting between Keesun and Ferdig/Somont was held on March 3, 1988, at Don Lee's office in an attempt to finalize a wellhead gas purchase contract between the parties. The following day, Mr. Jansky wrote Keesun another letter in which he summarized those terms he believed had been agreed upon and, in addition, listed eighteen proposed terms "still pending agreement." Mr. Jansky wrote: "Those things still pending agreement are summarized in our offer presented below, for you to either accept or reject." Ferdig/Somont thereafter instructed Don Lee to prepare a draft wellhead gas purchase contract which was then forwarded to Keesun for review.
On May 18, 1988, Keesun communicated its dissatisfaction with the draft contract to Don Lee who, in turn, informed Ferdig/Somont that Keesun did not agree with the proposed gas purchase contract. That same day, Mr. Jansky wrote Keesun a letter alleging that Keesun had breached "its contractual obligations." He stated that Ferdig/Somont would release Keesun from those obligations on the condition that Keesun relinquish title to four producing wells and the leases upon which those wells were located in Section 27 of Township 36 North, Range 4 West, and Section 19 of Township 36 North, Range 3 West. In his letter, Mr. Jansky stated that Ferdig/Somont had assigned this acreage to Keesun "in reliance on the fact that Keesun represented it would enter into a long term gas sales contract" with Ferdig/Somont. He also *420 stated that since all the "acreage ... was acquired from or via [Ferdig/Somont] in accordance with the agreement since breached by Keesun, [Ferdig/Somont] wants all this land back." In another letter dated May 24, 1988, Mr. Jansky informed Keesun that Ferdig/Somont intended to proceed as "equitable owner" of the disputed wells, and that a "Notice of Interest" to that effect had been recorded in Toole County.
On June 21, 1988, Keesun filed a complaint in the District Court of the Ninth Judicial District, Toole County, seeking relief against Ferdig/Somont on four counts. Count I sought quiet title relief for the disputed oil and gas leasehold interests held by Keesun; Count II sought declaratory relief that Ferdig/Somont had no right to operate or control the four producing gas wells drilled by Keesun on the leases described in Count I; Count III sought declaratory relief that Ferdig/Somont had no rights to leases acquired by Keesun in the future; and Count IV sought an accounting and payment for deliveries by Keesun to Ferdig/Somont of gas from the disputed wells.
Ferdig/Somont filed a motion to dismiss which was briefed by the parties. Prior to a ruling on the motion to dismiss, Keesun filed a motion for partial summary judgment as to Counts I, II and IV of its complaint. This motion was briefed by the parties and, on January 25, 1990, argued to the District Court.
Ferdig/Somont's motion to dismiss was subsequently denied. Thereafter Ferdig/Somont filed its "Answer, Affirmative Defenses and Counterclaims." This pleading set forth numerous affirmative defenses and counterclaims most of which were premised upon an alleged contractual relationship between Keesun and Ferdig/Somont for the purchase of wellhead gas.
The parties then commenced discovery. Shortly before the discovery deadline, the District Court granted partial summary judgment to Keesun on July 23, 1990. The court stated that its reason for granting partial summary judgment was that:
There is nothing before the Court to suggest there is a contract between the parties. There is nothing before the Court that would take the contract between the parties, if there were one, out of the statute of frauds.
The District Court's judgment quieted title to the disputed leases and wells in Keesun and ordered payment to Keesun for all gas delivered to Ferdig/Somont from the disputed wells. The court certified its judgment as final pursuant to Rule 54(b), M.R.Civ.P.
Ferdig/Somont then moved the District Court to alter or amend its order granting Keesun partial summary judgment. The court did not rule on this motion within 45 days and, therefore, the motion was deemed denied pursuant to Rule 59(g), M.R.Civ.P. This appeal followed.
The first issue on appeal is whether the District Court erred in determining that there are no genuine issues of material fact as to the absence of a contract between the parties. Summary judgment is properly granted where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party seeking summary judgment has the burden of demonstrating the absence of genuine factual issues. O'Bagy v. First Interstate Bank (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. If the movant has met this burden, the burden then shifts to the non-moving party to demonstrate a genuine issue of material fact. O'Bagy, 241 Mont. at 46, 785 P.2d at 191. To meet this burden, the non-moving party must proffer substantial evidence, not mere speculation and conclusory statements. Hando v. PPG Indus., Inc. (1989), 236 Mont. 493, 497, 771 P.2d 956, 959; Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60.
No evidence exists in the record of a signed written contract between the parties. Therefore, the initial question with which we are faced is whether an oral contract existed between the parties for the purchase of wellhead gas. Ferdig/Somont contends that a valid oral contract was *421 entered into by the parties or that, at a minimum, factual issues exist regarding the formation of a contract. According to Ferdig/Somont, an agreement was reached between the parties in which Keesun would sell its gas to Ferdig/Somont for a period of twenty years. Ferdig/Somont contends that the September 16, 1987 letter from Mr. Jansky to Mr. Finstad and attorney Don Lee set forth the terms of, and confirmed, that agreement. Ferdig/Somont further contends that Mr. Jansky's correspondence with Keesun and Don Lee after the September 16th letter merely reflected negotiations between the parties regarding optional additions to and modifications of the basic agreement for the purchase of wellhead gas.
In support of its contention that a contract was entered into between the parties, Ferdig/Somont refers to a portion of Mr. Finstad's deposition and argues that he testified that Keesun had accepted the proposed wellhead gas purchase contract as set forth in the September 16, 1987 letter:
Q [By Mr. Crotty] Is there anything in that letter that you did not agree with?
MS. OS Y: Objection. The question is too general.
A The essence of the proposed well head purchase contract we ... I agreed to.
Ferdig/Somont also refers to a portion of Don Lee's deposition with regard to the meeting he attended with the parties on March 3, 1988 as further support that the parties had reached an agreement.
What I recall is when everybody left and went out the door that whatever had been discussed at that meeting was agreed upon, other than the quantum of overriding royalty that Somont would be entitled to on various leases.
All contracts must contain four essential elements. These elements are: (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) consideration. Section 28-2-102, MCA. The issue of whether or not there was a contract in this case relates to the requirement of consent.
There must be mutual assent or a meeting of the minds on all essential terms to form a binding contract. Chadwick v. Giberson (1980), 190 Mont. 88, 92, 618 P.2d 1213, 1215. Consent is established when there has been an offer and an acceptance of that offer. More specifically, this Court has stated that in order to effectuate a contract there must be not only a valid offer by one party, but also an unconditional acceptance, according to its terms, by the other. Kuchinski v. Security General Ins. Co. (1963), 141 Mont. 515, 519, 380 P.2d 889, 891. In this case, the purported contract fails for lack of consent.
The record indicates that, although some of the terms of the wellhead gas purchase contract may have been agreed upon, the parties were involved in an ongoing negotiation process regarding many essential terms of the contract and no finalized agreement was ever reached. At the January 25, 1990 hearing on partial summary judgment, Don Lee testified as follows:
Q [By Ms. Ostby] If the parties would have reached an agreement, you were to be the scribner [sic] of that agreement, were you not?
A Yes.
Q Were you ever aware an agreement was reached on all the essential terms of a contract, so you could draft such an agreement?
MR. WARNER: Objection, leading.
THE COURT: It is somewhat, but I'll let him answer.
A On everything?
Q Yes.
A No.
Mr. Lee reaffirmed his belief that there was never any finalized agreement between the parties in his subsequent deposition.
Q [By Ms. Ostby] This letter [referring to the letter from Mr. Jansky to Keesun dated March 4, 1988] indicates, toward the bottom third of the first page, that there were several things "still pending agreement;" do you see that?
A Yes.
Q That accords with your understanding, doesn't it, that there were still *422 some things that were pending agreement at that time?
A Yes.
In addition, Mr. Jansky's own admissions in his letters to Keesun demonstrate that no finalized contract between the parties existed. In his March 4, 1988 letter to Keesun, Mr. Jansky, on behalf of Ferdig/Somont, stated that:
Along with the latest version of the proposed gas purchase contract attached herewith, I want to confirm those things Ferdig believes already mutually agreed, which will be incorporated in a side agreement executed concurrently with the gas purchase contract, and those things Ferdig acknowledges as still pending agreement. Those things still pending agreement are summarized in our offer presented below, for you to either accept or reject. [Emphasis added.]
Further, in a letter dated April 25, 1988, to the Montana Power Company with whom Ferdig/Somont had negotiated a delivered gas purchase contract, Mr. Jansky stated: "[W]e do not yet have contracts finalized with Keesun or Berenergy." The date that letter was written, April 25, 1988, was more than six months after the date upon which Ferdig/Somont now claims a contract was formed between the parties.
Mr. Jansky's own statements in his letters to Keesun and Montana Power refute Ferdig/Somont's contention that the correspondence subsequent to the September 16, 1987 letter merely reflected negotiations regarding optional additions to and modifications of a basic agreement between the parties. In our view, they also reflect recognition by Ferdig/Somont that the parties had not yet agreed upon all essential terms of a contract.
Ferdig/Somont also contends that this Court should find the existence of a contract between the parties based on the doctrine of promissory estoppel. The elements of promissory estoppel are: (1) a promise clear and unambiguous in its terms; (2) reliance on the promise by the party to whom the promise is made; (3) reasonableness and foreseeability of the reliance; and (4) the party asserting the reliance must be injured by the reliance. Tope v. Taylor (1986), 224 Mont. 131, 136-37, 728 P.2d 789, 793.
With respect to the first element, this Court stated in Keil v. Glacier Park, Inc. (1980), 188 Mont. 455, 462-63, 614 P.2d 502, 506, that promissory estoppel cannot be based on preliminary negotiations or an agreement to negotiate the terms of a contract. In the present case, the evidence before the District Court established nothing more than that the parties had engaged in preliminary negotiations and discussions of the terms of a wellhead gas purchase contract. Mr. Jansky's letters to Keesun reflected that finalization of the terms of a contract would require further negotiations between the parties. This evidence does not constitute the clear and unambiguous promise necessary to satisfy the first element of promissory estoppel.
Additionally, Ferdig/Somont cannot establish facts sufficient to show reliance on any alleged promise by Keesun. In making the business decision to install the northern leg of its gas gathering pipeline system, Ferdig/Somont had previously determined that its own well in Section 34 of Township 36 North, Range 4 West, along with another well in that section, justified installation of the pipeline. This decision is reflected in Ferdig/Somont's letters to its lenders during the summer of 1987, prior to the date of the alleged formation of the wellhead gas purchase contract.
Keesun, as the moving party, met its initial burden of showing that no evidence existed to prove the formation of a binding contract between the parties. The burden then shifted to Ferdig/Somont to show facts sufficient to raise a genuine issue. Ferdig/Somont has failed to meet this burden. The District Court correctly determined that the evidence proffered by Ferdig/Somont was insufficient to raise any genuine issue of material fact as to the existence of a gas purchase contract between the parties and, thus, properly granted partial summary judgment on this issue.
*423 Having determined that the record reveals that no valid oral contract existed between the parties, it is unnecessary for us to address Ferdig/Somont's second issue on appeal regarding the applicability of the statute of frauds.
The next issue on appeal is whether the District Court erred by not awarding Ferdig/Somont the remedies of rescission or restitution and return of the parties to the status quo when it granted Keesun quiet title relief. Ferdig/Somont contends that, as consideration for a long-term gas purchase contract with Keesun, it assigned various leasehold acreage interests to Keesun. It argues that to allow Keesun to retain the benefits of the contract in the form of acreage interests assigned to it, without enforcing the contract, results in unjust enrichment. Ferdig/Somont argues that it is entitled to rescission of those assignments, restitution, and the return of the parties to the status quo based on the theories of repudiation or breach of contract and fraud. We disagree.
Mr. Finstad's affidavit and accompanying documents show that the lease assignments were separately executed written contracts for which consideration was received by Ferdig/Somont. For example, with respect to the "Spencer-Lohof" lease assignment in Section 27 of Township 36 North, Range 4 West, Ferdig/Somont retained a 7 1/2% overriding royalty interest.
Mr. Jansky admitted that he considered the assignments to be separate land contracts. When questioned during the January 25, 1990 hearing on partial summary judgment about one of the disputed wells in Section 19 of Township 36 North, Range 3 West, Mr. Jansky testified as follows:
Q [By Ms. Ostby] And, it [the Section 19 acreage] was not part of that Contract, was it?
A No, ma'am.
Q And, despite the fact that it's not part of the Contract that you're contending was breached, you're claiming ownership?
A Yes, ma'am.
The record shows that Keesun drilled the well in Section 19 pursuant to a separate, written farmout agreement between Western Natural Gas Company (WNG) and Ferdig/Somont and, in turn, a separate, written assignment to Keesun of Ferdig/Somont's rights under the WNG agreement. Again, Ferdig/Somont retained a 7 1/2% overriding royalty. Nowhere in these documents is there any language suggesting the assignments to be dependent upon some other agreement.
In addition, the record does not reveal any fraud on Keesun's part. There is nothing to indicate that Keesun intended to mislead or deceive Ferdig/Somont by concealing material facts, or that somehow Ferdig/Somont was misled to its detriment. To the contrary, the record clearly establishes that Mr. Jansky was fully aware that negotiations were ongoing. We hold that the District Court did not err in rejecting Ferdig/Somont's claims of rescission and restitution.
Affirmed.
TURNAGE, C.J., and TRIEWEILER, HUNT and WEBER, JJ., concur.


238 F.Supp.2d 707 (2002)
COASTAL GENERAL CONSTRUCTION SERVICES, INC., Appellant,
v.
VIRGIN ISLANDS HOUSING AUTHORITY, Appellee.
No. CIV.A.1999-134.
District Court, Virgin Islands, Appellate Division, D. St. Thomas.
Filed December 20, 2002.
Fred Vialet, Jr., St. Thomas, VI, for the Appellant.
Vincent F. Frazer, St. Thomas, VI, for the Appellee.
Before: RAYMOND L. FINCH, Chief Judge of the District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and EDGAR D. ROSS, Judge of the Territorial Court of the Virgin Islands, Division of ST. CROIX, Sitting by Designation.

OPINION
PER CURIAM.
On September 29, 1988, Coastal General Construction Services Corporation ["Coastal"] entered into a contract to renovate and modernize the Donoe housing *708 project for the Virgin Islands Housing Authority ["VIHA"] for the negotiated contract price of $2,209,587. Due to Coastal's inability to secure performance bond and payment bonds, as well as VIHA's inability to secure adequate federal financing for the project, and before Coastal had begun any work on the project, VIHA issued a notice of termination of the contract on June 6, 1989.
In February of 1992, Coastal sought compensation by filing a "termination claim" for start-up expenses of $1,114,799. This claim was submitted without any supporting documentation. After VIHA rejected Coastal's claim, Coastal demanded arbitration in April of 1992. On November 16, 1992, less than twenty-four hours before the scheduled arbitration hearing, Coastal presented VIHA with an amended arbitration claim in the amount of $2,343,933 along with numerous volumes of supporting documentation. At the commencement of the arbitration proceeding, VIHA objected to the amended claim and moved to continue the hearing to allow it time to investigate. The arbitrator reserved his ruling on both VIHA's objection and motion to continue and proceeded with the arbitration. At the close of arbitration, VIHA again reiterated its objections and renewed its motion for a continuance. Notwithstanding VIHA's objection and motion to continue, the arbitrator awarded Coastal $1,262,049 plus reimbursement of administrative fees and permitted it to keep the tools and equipment allegedly purchased for the project.
Following this award, VIHA began an investigation of the documents submitted by Coastal in support of its claim. This investigation revealed that several submitted documents were fraudulent.[1] In response to this discovery, VIHA filed suit in the Territorial Court to vacate the arbitrator's award in 1993. Coastal subsequently removed the case to the District Court and moved that court to confirm its arbitration award. After denying Coastal's motion to confirm the award, the District Court vacated the award on the ground that the arbitrator had violated 9 U.S.C. § 10(a)(3) on account of his failure to postpone the hearing. Coastal appealed this decision to the Third Circuit Court of Appeals, which vacated the District Court's decision for lack of subject-matter jurisdiction and instructed the District Court to remand the case back to the Territorial Court. See Virgin Islands Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27 F.3d 911 (3d Cir.1994). After the remand back to the Territorial Court, this matter proceeded to trial on February 23, 1999, where the trial court found that the arbitrator had violated 9 U.S.C. § 10(a)(3) on account of his failure to postpone the hearing as well as finding that the award had been procured by fraud in violation of 9 U.S.C. § 10(a)(1). Coastal now appeals to this Court arguing that the arbitrator was not guilty of misconduct in failing to postpone the hearing and that there was no evidence that the arbitration award was procured by fraud.[2]

I. Jurisdiction and Standard of Review
This Court has jurisdiction to review final judgments and orders of the Territorial *709 Court in all civil cases. See 4 V.I.C. § 33.[3] Even though judicial review of an arbitration award is very deferential,[4] we have plenary review over the trial court's grant of summary judgment to vacate an arbitration award. See Exxon Shipping Co. v. Exxon Seamen's Union, 73 F.3d 1287, 1291 (3d Cir.1996); cf. Dennenberg v. Monsanto, 168 F.Supp.2d 494, 495 (D.V.I.2001) ("Where the issues on appeal involve the application of legal precepts and statutory construction, our standard of review is plenary.") (citing Ross v. Bricker, 26 V.I. 314, 318, 770 F.Supp. 1038, 1042 (D.V.I.1991)). The Court will uphold findings of fact unless clearly erroneous. See 4 V.I.C. § 33; see also Virgin Islands v. Kidd, 79 F.Supp.2d 566, 569-70 (D.V.I. 1999). "Clear error exists when, giving all deference to the opportunity of the trial judge to evaluate the credibility of witnesses and to weigh the evidence, we are `left with a definite and firm conviction that a mistake has been committed.'" In re Custody & Control, 171 F.Supp.2d 499, 505 (D.V.I.2001) (citation omitted); see also Virgin Islands. v. Albert, 89 F.Supp.2d 658, 663 (D.V.I.2000).

II. Trial Court Did Not Err in Vacating Arbitration Award
Section 10(a)(3) of title 9 of the United States Code authorizes courts to vacate arbitration awards:
where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
9 U.S.C. § 10(a)(3). To constitute misconduct requiring the vacation of an arbitration award, the arbitrator's conduct "must be one that is not simply an error of law, but which so affects the rights of a party that it may be said that he was deprived of a fair hearing." Newark Stereotypers' Union v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.1968). Upon reviewing the trial court's findings, we can find no error on its part in ruling that the arbitrator's failure to postpone the hearing at the request of the government was misconduct warranting the vacation of the award.
In Newark Stereotypers' Union, the appellant union argued that the arbitrators' refusal to inquire into the reasons for an expert witness's refusal to testify about the installation of a machine that would reduce union jobs amounted to misconduct.[5] In rejecting the union's argument, the Court of Appeals noted the panel had twice recessed to give the union time to deal with the situationonce to petition to district court to compel the witness's testimony and once more to give the union time to have two other expert witnesses examine the machine in question. See id. *710 at 597. The Court of Appeals also noted that the union rejected the witness's later offer to complete his testimony and did not object to the panel's dismissal of the witness. See id. These findings led the Court of Appeals to conclude that the arbitrators' conduct had not affected the fairness of the proceedings. See id. at 600.
It is quite evident from the facts that this case is readily distinguishable from Newark Stereotypers' Union. Unlike the appellant in Newark Stereotypers' Union when faced with an unexpected occurrence, VIHA was forced to proceed without the benefit of additional time to investigate and assess the situation. Although an arbitrator is not required to "follow all the niceties observed by the federal courts ... [he] must give each of the parties to the dispute an adequate opportunity to present its evidence and argument." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997). Accordingly, the arbitrator's refusal to give VIHA time to investigate the amended claim presented by Coastal less than twenty-fours before the hearing amounts to misconduct as it clearly affected VIHA's right to a fair hearing.
Coastal attempts to stave off this conclusion by muddying the waters. In particular, Coastal relies on Rule 39[6] of the rules of the American Arbitration Association ["AAA"] to assert that VIHA's failure to file either a written objection to the proceeding or a written request for a continuance constituted waivers of objection and, thus, the arbitrator was not guilty of any misconduct. (Appellant Reply Br. at 2-3; Appellant App. at 48-51, 97, 120-21, 144-45.) This argument, however, is meritless.
First, Rule 30, not Rule 39, applies to motions to continue an arbitration hearing and this rule does not require written motions. Compare AAA R. 30 ("The arbitrator may postpone any hearing upon agreement of the parties, upon request of a party for good cause shown, or upon the arbitrator's own initiative.") with AAA R. 39 ("Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection in writing shall be deemed to have waived the right to object."), available at http://www.adr.org. Second, VIHA's apparent failure to object in writing to the arbitration proceeding is irrelevant to this Court's determination of whether the arbitrator was guilty of misconduct. This situation is analogous to Health Services Management Corporation v. Hughes, 975 F.2d 1253 (7th Cir.1992). In Health Services Management, the plaintiff discovered the potential conflict of two arbitrators moments before the proceeding. See id. at 1262. The Seventh Circuit Court of Appeals noted in dictum that the plaintiff could have either: (1) objected to the hearing and left, (2) objected to the hearing and then proceed if its objection was overruled, or (3) waived its objection and proceeded with the hearing. See id. In any event, "the arbitration panel would have been obligated to grant a postponement of the hearing [at the plaintiff's request] or risk having their award vacated under 9 U.S.C. § 10(a)." See id. at 1263. In this instance, VIHA was faced with the same dilemma on how to proceed. By rejecting VIHA's motion to continue the hearing and proceeding immediately to the hearing, the arbitrator violated 9 U.S.C. § 10(a) as forewarned by the Seventh Circuit Court of Appeals in Health Services Management and the trial court *711 did not err in vacating the arbitration award accordingly.

III. Conclusion
By failing to postpone the arbitration hearing upon VIHA's request, the arbitration was guilty of misconduct in violation of 9 U.S.C. § 10(a)(3). Accordingly, this Court will affirm the trial court's decision to vacate the arbitration award.

ORDER
For the reasons set forth in the accompanying memorandum of even date, it is hereby
ORDERED the Territorial Court's memorandum and order vacating the appellant's arbitration award is AFFIRMED.
NOTES
[1]  The investigation ultimately led to the convictions of William and Esther Koenig, principals and officers of Coastal, for conspiracy and fraud. The Court of Appeals upheld William Koenig's conviction, but overturned Esther Koenig's conviction. See United States v. Koenig, 281 F.3d 225 (3d Cir.2001).
[2]  As this Court concludes that the trial court properly found that the arbitrator violated 9 U.S.C. § 10(a)(3), we need not address the issue of whether the arbitration award was procured by fraud in violation of 9 U.S.C. § 10(a)(1).
[3]  See Revised Organic Act of 1954 § 23A; 48 U.S.C. § 1613a. The complete Revised Organic Act of 1954 is found at 48 U.S.C. §§ 1541-1645 (1995 & Supp.2002), reprinted in V.I. CODE ANN. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 & Supp.2002) (preceding V.I. CODE ANN. tit. 1).
[4]  The Federal Arbitration Act "limits the court's role to determining whether the parties received a fair and honest hearing on a matter within the arbitrators' authority. The court may not take issue with the arbitrators' interpretation of the contract. Nor can it consider whether the arbitrators committed an error of law." Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 62 (3d Cir.1986) (citations omitted).
[5]  The union had alleged that the appellee publishing company had intimidated the witness into not testifying at the hearing.
[6]  Coastal actually refers to Rule 38 in its brief. According to the latest version of AAA rules (July 1, 2002), however, Rule 39 deals with the waiver of arbitration rules.


140 B.R. 904 (1992)
In re Gary SMITH, SS # XXX-XX-XXXX, Debtor.
MIDI MUSIC CENTER, INC., dba Lowrey Contemporary Keyboards, Plaintiff,
v.
Gary N. SMITH, Defendant.
Bankruptcy 7-90-03564 M L, Adv. No. 91-0090 M.
United States Bankruptcy Court, D. New Mexico.
June 5, 1992.
*905 Kevin T. Riedel, Albuquerque, N.M., for plaintiff.
Norman E. Todd, Jr., Las Cruces, N.M., for debtor, defendant.

MEMORANDUM OPINION
MARK B. McFEELEY, Bankruptcy Judge.
This matter came before the Court for trial on the merits of the complaint to determine dischargeability of debt filed by MIDI Music Center, Inc., dba Lowrey Contemporary Keyboards (Lowrey). Lowrey seeks to have a debt owed to it held to be nondischargeable. The case is unusual in *906 that the conduct complained of was committed by the debtor's spouse, who is not a party to this proceeding. Lowrey alleges that because the debt would not be dischargeable in the nondebtor spouse's hypothetical chapter 7 case, it cannot be dischargeable in the debtor's bankruptcy case.

FACTS
This case has the stuff of which makes up bankruptcy judges' nightmares: complicated facts, little or no case law on point, and a statute that doesn't seem to address the situation.
Ruth Smith (hereinafter referred to as Ruth) filed her own chapter 13 bankruptcy proceeding on June 6, 1990, case no. 13-90-01756 R L. Her husband, Gary Smith (hereinafter referred to as Gary) filed this case on November 9, 1990. The meeting of creditors was set for January 24, 1991. The deadline for filing complaints objecting to discharge and dischargeability was March 25, 1991. On March 25, 1991, Lowrey filed a complaint objecting to dischargeability of its debt, based on the actions of Ruth. Ruth was not named as a defendant in the dischargeability complaint. On April 1, 1991, Ruth's chapter 13 was dismissed for failure to prosecute. Ruth filed another chapter 13 on May 20, 1991. Lowrey objected to the filing based on the ineligibility of the debtor because her unsecured debt exceeded $100,000. The Court sustained the objection, and on February 27, 1992, entered an order wherein Ruth had 15 days to convert the case to a chapter 7 or the case would be dismissed. Ruth elected to convert and an order of conversion was entered on March 5, 1992. Lowrey takes the position that neither Ruth's original chapter 13 petition nor the conversion to chapter 7 have any effect on the dischargeability complaint filed in Gary's bankruptcy case and wishes to pursue the instant complaint.
The facts which give rise to the dischargeability complaint follow. Gary is, and at all times material hereto has been, married to Ruth, who formerly did business as Ruth's Piano Place. On June 29, 1989, and August 2, 1989, Lowrey sold certain of its products to Ruth on open account for the total sum of $24,053, of which $20,658 remains unpaid. Ruth executed a security agreement dated April 20, 1989, by which she granted Lowrey a security interest in all goods acquired from Lowrey and all proceeds of same as security for the payment of all extensions of credit, interest, collection charges, costs, fees and/or attorneys' fees sought from, incurred by and/or charged to Lowrey. In this security agreement, Ruth also warranted that she would pay all proceeds to Lowrey. Pltf.Ex. 2. The evidence showed that only a portion of the proceeds was actually paid.

DISCUSSION
Lowrey is attempting to hold post-petition community property of Gary and Ruth liable for this debt pursuant to 11 U.S.C. §§ 524(a)(3) and (b).[1] Under *907 § 524(b)(2),[2] if, hypothetically, the nondebtor spouse would not receive a discharge, then after-acquired community property will be liable for the community claim.
Under a set of facts by which only Gary had filed a bankruptcy petition, it would be a simple matter to interpret the statute. The Court believes that the interpretation offered by Lowrey under § 524(b)(2) is what the statute says: the Court would be called upon to decide the hypothetical discharge of Ruth so that she would not unfairly benefit from the community property discharge accorded Gary in his chapter 7 case. However, the facts are complicated by Ruth's bankruptcy petitions.
Ordinarily, a petition by one spouse passes all community property into the estate of the filing spouse. § 541(a)(2). A discharge of the debts then includes community claims and prohibits creditors from proceeding against community property acquired after the petition was filed even as against the nondebtor spouse. § 524(a)(3). Green v. United States, (In re Green), 12 B.R. 594 (Bankr.N.M.1981). Therefore, in community property states, there is no need for both spouses to file unless the nondebtor spouse has substantial separate debt. The concern that a wrongdoing spouse would "hide" behind the discharge of the innocent spouse was addressed by § 524. The competing policies of giving an innocent spouse a complete "fresh start" as opposed to prohibiting the discharge of a debt to the community when one spouse has a nondischargeable debt appear to have been resolved by Congress when it enacted 11 U.S.C. § 524. See the discussions on this subject in Collier, 3 Collier on Bankruptcy, ¶ 524.01[2], 524-10 (15th ed. 1991). Under subsections (a)(3) and (b), if a debt is nondischargeable as to a spouse or the nondebtor spouse, the community does not receive a discharge, and objecting creditors may proceed against after-acquired community property. Of course this frustrates the "fresh start" of the innocent debtor spouse, but Congress made the policy choice so that "the economic sins of either spouse shall be forever visited upon the community property." Pedlar, Alan, "Community Property and the Bankruptcy Reform Act of 1978," 11 St. Mary's L.J. 349, 382, n. 22 (1979).[3]
The June 6, 1990, petition filed by Ruth included community property and listed community claims. Under the operation of § 541(a)(2), all community property passed into her bankruptcy estate. Ruth's filing would have discharged community debts had she received a discharge. Gary's petition of November 9, 1990, arguably could not include the community property which was already included in Ruth's estate. Texaco, Inc. v. Bartlett, (In re Bartlett), 24 B.R. 605 (9th Cir.BAP 1982) (community property becomes property of the estate of the first spouse to file). Nevertheless, Gary's petition listed all community property and all community claims, which were also included in Ruth's petition. Once her first chapter 13 petition was dismissed, the community property revested in the entity in which the property was vested immediately before the commencement of the case. § 349. The community property would thus be revested in the community. However, Gary had filed his petition by that time, listing all community property. Therefore, the community property must have passed into his bankruptcy estate. He obtained a discharge of all debts listed in his petition on March 19, 1992, except the debt to Lowrey which is the subject of this adversary proceeding.
Section 524(a)(3) imposes an injunction against a creditor attempting to satisfy its debt from after-acquired community property *908 unless the debt would have been excepted from discharge under §§ 523, 1228(a)(1) and 1328(c)(1). The inclusion of the sections under chapter 12 and 13 clearly shows that those sections were to be used to determine dischargeability, when applicable. Section 524(b) was an amendment by the House, and "represents standards clarifying the operation of § 524(a)(3) with respect to community property." H.R. 95-595, 95th Cong., 1st Sess. (1977), U.S.Code Cong. & Admin.News p. 5787, reprinted in Historical and Revision Notes to § 524.
Two different fact situations should be distinguished. The first is where both spouses file a case, be it jointly or separately. The other is where one spouse has filed but the other has not. Section 524(b)(1) applies when the spouse is a debtor. If the debtor spouse would be denied a discharge in the chapter under which he or she is proceeding, then § 524(a)(3) does not apply, and there is no community property discharge. Section 524(b)(2) applies if a spouse is not a debtor. Then the court will be called on to determine if the nondebtor spouse would be denied a "hypothetical" discharge under chapter 7.[4]
In the case at bar, Lowrey argues that § 524(b)(1) and (2) are only alternatives to each other. Under this argument, the creditor may choose which subsection to proceed under and Lowrey has chosen (b)(2) instead of (b)(1). The Court disagrees with this interpretation. Section 524(b)(1) clearly says that if the spouse is a debtor and would not receive a discharge then (a)(3) does not apply. Lowrey's reading totally ignores the clear language of the statute. Lowrey glossed over subsection (b)(1), concentrating instead on (b)(2), which contains the language on the hypothetical discharge. As the Court reads § 524(b)(1) as applied to this case, the injunction against proceeding against after-acquired community property contained in § 524(a)(3) does not apply if the debtor's spouse (Ruth) is a debtor in a bankruptcy case, commenced within 6 years of the date of the debtor's petition (Gary's petition), and the court does not grant Ruth a discharge in such case concerning her. See § 524(b)(1). Lowrey's argument, if accepted by this Court, would allow an objection to dischargeability of one spouse under the provisions of chapter 7 in a case where both spouses had filed a chapter 13. A result which would so drastically alter the discharge provisions of the Code will not be created by this Court.
Again, the strict application of the statute is complicated by the fact that not only was Ruth a debtor, but she was a debtor under chapter 13 of title 11. Chapter 13 estates contain after-acquired property. § 1306. Therefore, an injunction against a creditor proceeding against after-acquired community property is inconsistent with the provisions of chapter 13. Additionally, under § 1328, discharges in chapter 13 cases are not issued until all plan payments have been made, which can be up to five years. § 1322. Is the Court to wait until the discharge has been issued in the chapter 13 before it can decide if the other spouse gets a discharge as to community property in his or her own case?[5]
Another problem with the various sections of the Code is clearly evident from the facts as they occurred here. If the wrongdoing spouse is in a chapter 13 while the innocent spouse is in a chapter 7, creditors deal with each debtor/spouse in their own bankruptcies. A chapter 13 debtor *909 has the right to dismiss upon request. § 1307(b). If the wrongdoer waits until the time for objecting to discharge in the innocent spouse's chapter 7 has passed and then dismisses the chapter 13, the wrongdoing spouse gets a community property discharge by virtue of the innocent spouse's discharge in the chapter 7 case and the creditor is left without a remedy against the wrongdoer. The Court believes that for a creditor to safeguard against this possibility, the proper procedure to follow is to file a complaint in the innocent spouse's chapter 7, naming the wrongdoer, seeking a determination that the wrongdoer's debt would not be discharged in a chapter 7. Then, if the possibility of a dismissal in the wrongdoer's chapter 13 becomes a reality, the creditor will have a determination regarding the dischargeability of the debt.
The primary case cited by Lowrey concerned a situation where both spouses filed, but only one engaged in conduct rising to the level of nondischargeability. In Valley National Bank of Ariz. v. LeSueur, (In re LeSueur), 53 B.R. 414 (Bankr. Ariz.1985), the husband and wife filed. The bankruptcy court issued an order denying dischargeability of debt as to the husband. The wife had been dismissed earlier in the case. Thus, LeSueur involved a situation that § 524(b)(1) addressed, that of the spouse who was a debtor and had been denied a discharge. The creditor submitted a proposed judgment against all of the community property. The wife objected to the proposed judgment, arguing that because she was innocent of any wrongdoing, only the husband's one-half of the community property should be liable for the debt. The court held that the community property and the separate property of the husband would be liable for the debt. Only the wife's separate property was immune from the creditor. "The Code's policy is to deny the community property discharge if the debtor's spouse has been denied a discharge." 53 B.R. at 417. Once the Court has determined that only one spouse has committed acts which make the debts non-dischargeable, the community property is liable. Only the separate property of the innocent spouse will not be available to satisfy creditors.
In re Karber, 25 B.R. 9 (Bankr.N.D.Tex. 1982), shows what can happen when creditors do not act quickly enough in the debtor spouse's bankruptcy to object to the hypothetical discharge of the nondebtor spouse. In Karber, creditors petitioned to have wife declared bankrupt. Wife opposed the petition on the basis that the debts had been discharged in her husband's prior bankruptcy. The court held that the debts upon which the creditors relied had been discharged in the husband's bankruptcy. None of the creditors had objected to the hypothetical discharge of the wife in the husband's petition. Therefore, they were foreclosed from proceeding against community property acquired after the date of filing of the husband's petition based on the actions of the wife. The wife's separate property which was not subject to the after-acquired community property injunction was also immune because the creditors did not establish that under Texas law, the debts were joint debts for which her separate property would be liable. The court dismissed the involuntary petition.
In Wilson v. Bursh, (In re Bursh), 14 B.R. 702 (Bankr.Ariz.1981), only the wife filed. The creditor filed a complaint of nondischargeability based on a state court judgment finding that the husband committed fraud. The state court default judgment specifically provided that the damages were to be collectible from the couple's community property, as well as the husband's separate property. The court, without citing to § 524, held that the burden is on the creditor to prove actual fraud, that the wife did not engage in fraudulent conduct, and that by law, fraud could not be imputed to wife. The court held that the debt was dischargeable in the wife's bankruptcy.
There have been a few cases which apply the same reasoning as Bursh. The basis for courts' reluctance to impute fraud to one who did not commit wrongful acts appears to be intertwined with notice and technical requirements. If a creditor *910 wishes to object to the discharge of the filing spouse based on the actions of the nonfiling spouse, and does not cite to the Code section which allows a creditor to proceed in this manner, then it is not surprising that a court would not be comfortable in holding the debt to be nondischargeable. After all, the person accused of the wrongdoing usually has not been named, the jurisdiction of the court over the nonfiling spouse is in question, and fraud is something that requires an affirmative act.
Fraud cannot be imputed to the non-wrongdoing spouse and this Court has so held. First National Bank of Grants v. Johnson, (In re Johnson), X-XX-XXXXX M A, X-XX-XXXXX M A, Consolidated (Bankr. N.M. Dec. 20, 1983). Where a creditor attempts to get the debt owed to it determined to be nondischargeable by proceeding directly against the clearly innocent spouse based on the actions of a spouse not before the court, the complaints have been dismissed. Bursh and Macy's v. Pittman, (In re Pittman), 41 B.R. 382 (Bankr. W.D.Mo.1984). The Code provides that actions of a nonfiling spouse which would render a debt nondischargeable may make the debt nondischargeable as to the community property of the filing spouse. § 524(b)(2). The Code does not, however, allow a creditor to proceed against the innocent filing spouse based on the actions of the nonfiling, wrongdoing spouse and have the acts complained of imputed to the innocent spouse. Effectively, that is what Lowrey is attempting to do here. For a creditor to properly object to the community property discharge accorded spouses in community property states, the proper procedures must be followed. The creditor must proceed against the spouse whom is alleged to have done the wrongful acts, either in his or her own bankruptcy case if both spouses have filed, or in a hypothetical case involving the nonfiling spouse if only one spouse has filed.
Lowrey's § 524(b)(2) argument makes no sense to the Court. Section 524(b)(2) was designed so that a nonfiling, wrongdoing spouse would not be able to hide behind the discharge of the innocent spouse who filed. As one commentator put it, "the Devil himself could effectively receive a discharge in bankruptcy if he were married to Snow White, for her discharge would protect all after-acquired community property as part of her fresh start." Alan Pedlar, "Community Property and the Bankruptcy Reform Act of 1978," 11 St. Mary's L.J. 349, 382 (1979). Here we do not have a situation where there is a nondebtor spouse. Ruth filed her own bankruptcy case. She chose to file first, under chapter 13, which has broader discharge provisions. Lowrey could not have objected to the dischargeability of its debt in her chapter 13 case. Then Gary filed. Lowrey, in an attempt to circumvent the broader discharge provisions of Ruth's chapter 13, filed the instant dischargeability complaint in Gary's bankruptcy case. When the complaint was filed, Ruth's first chapter 13 was still pending. Therefore, this is not the situation where the Court must examine a "hypothetical" discharge regarding the conduct of a nondebtor spouse. It would be an anomaly if the creditor were able to obtain broader remedies against a filing "wrongdoing" spouse because the "innocent" spouse filed a chapter 7. Because Ruth was a debtor in her own case, the Court rules that § 524(b)(2) is not applicable to the case at bar.
Ruth was in her own chapter 13 when this complaint was filed. She was not denied a discharge in that case so the community property discharge provision in the chapter applicable to her, chapter 13, would control. Now she is in a chapter 7. The creditor may object to her discharge under the Code provision which now applies to her. Therefore, the Court finds that Lowrey has not proceeded under the correct sections of the Bankruptcy Code and the adversary proceeding will be dismissed.

Notice
An additional concern of the Court is the notice issue. Courts have held that fraud may not be imputed to the innocent spouse. See discussion supra p. 909. Ruth Smith was not named or served in this adversary proceeding. Lowrey argues that she did *911 not have to be, stating that it was proceeding in Gary's bankruptcy case and that the property to be held liable was the after-acquired community property.
The cases found by the Court where one spouse was dismissed or did not have to be named are easily distinguished. They all involved cases where the innocent spouse was either not named, or if named, dismissed from the case early on. The courts said that the language of the Code does not require a finding of nondischargeability as to the innocent spouse for after-acquired community property to be liable if the wrongdoing spouse was denied a discharge and so the innocent spouse need not be named in order to reach after-acquired community property. None of the cases involved creditors who failed to name the spouse who was alleged to have done the acts which gave rise to the dischargeability complaint.
Where, in a joint case involving spouses, one spouse has done the act leading to the dischargeability complaint, and the other was innocent, courts have held that the innocent spouse may be dismissed. The courts held that the dismissal of the innocent spouse did not preclude the creditor from holding after-acquired community property liable for the debt. Grimm v. Grimm, (In re Grimm), 82 B.R. 989 (Bankr.W.D.Wis.1988); Valley National Bank of Ariz. v. LeSueur, (In re LeSueur), 53 B.R. 414 (Bankr.Ariz.1985); Williams v. Bernardelli, (In re Bernardelli), 12 B.R. 123 (Bankr.Nev.1981). The Bernardelli court held that the creditors would have the same status as to the community property as they had before the bankruptcy, and granted the motion of the innocent spouse to dismiss her as a party because there was no need to name her in order to make community property of the debtors liable if the debt of the husband was held to be nondischargeable.
In Judge v. Braziel, (In re Braziel) 127 B.R. 156 (Bankr.W.D. Tex.1991), the court held that the nondebtor spouse was a necessary party and denied the wife's motion to dismiss. Only the husband filed the petition. The husband and wife were named as defendants. Apparently, the wife was included by the creditors in order to object to the hypothetical discharge which she might have obtained if her husband were discharged and she were not a party. The court never stated that the wife was alleged to have committed any nondischargeable acts. The court candidly admitted that the court and counsel were uncertain as to the effect of § 524(a)(3), (b). In its findings, the court made a distinction between the case where both spouses file and where only one spouse has filed. Because both spouses would be affected by a finding of nondischargeability, even as to one spouse, the court held that the wife was a party in whose absence complete relief could not be accorded. 127 B.R. at 158.
Assuming the wife had not done any wrongful acts, Braziel goes one step beyond what this Court feels is necessary under the Code. Grimm, LeSueur, and Bernardelli, in this Court's view, more closely comport with the language of the Code in that the innocent spouse need not be named in order for a creditor to be able to proceed against after-acquired community property. Due process concerns, however, dictate that the alleged wrongdoer(s) must be named in all instances, whether the bankruptcy be real or hypothetical.
In Huish v. Maready, (In re Maready), 108 B.R. 728 (Bankr.Ariz.1989), the creditor and the wrongdoing husband entered into a stipulated judgment. Although the husband and wife had filed jointly, the wife had never been named in the adversary complaint nor served as a party. The wife filed a motion to set aside the judgment as to community property of the debtors. The bankruptcy court judge held that the judgment of nondischargeability was unenforceable as to the community property of the wife.[6] On appeal, the bankruptcy appellate *912 panel of the Ninth Circuit reversed on the issue of notice and remanded the case to determine if the judgment was a community claim which could therefore be enforced against community property. 122 B.R. 378 (9th Cir.BAP 1991). Regarding notice, the court held that a creditor is not required to give the "innocent spouse" notice that the creditor will attempt to satisfy debt from community property if the debt is excepted from discharge. Id. at 382. The court focused on the elements of § 523 and noted that the section did not require proof that the debt is a community claim. Thus, the debt must first be excepted from discharge and the most probable time for a determination of whether the debt is a community claim is when the creditor attempts to execute on the judgment. Id. If the creditor is attempting to satisfy the judgment from community property, then both spouses would likely be served.
The cases make it clear: whoever is alleged to have done the acts forming the basis of a real or hypothetical complaint objecting to discharge must be named and served. The "innocent" spouse need not be named in the dischargeability complaint, but due process concerns dictate that the spouse accused of wrongdoing must be given an opportunity to defend on the merits.
The Court thinks it is imperative that the spouse upon whose acts the dischargeability complaint is based must be named. Only then will due process concerns be addressed. Since Lowrey only named Gary, his defense was primarily that the debts did not benefit the community and thus, the community could not be held liable. If Ruth had been named as a defendant and had had an opportunity to defend herself on the merits, the defense would likely have been very different. The Court finds that Ruth was not afforded due process, adding to the basis for dismissal of the complaint.
This does not work an injustice to the creditor. Lowrey still has remedies available to it. Ruth converted to her own chapter 7 upon the dismissal of the chapter 13. Therefore, Lowrey may file a complaint objecting to dischargeability in her case, where the Court believes it is more properly brought.
This memorandum opinion constitutes the Court's findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. An appropriate order shall enter.

ORDER
This matter came before the Court for trial on the merits of MIDI Music Center, Inc., dba Lowrey Contemporary Keyboards' (Lowrey) complaint to determine dischargeability of debt. Lowrey seeks to have a debt owed to it to be held nondischargeable. For the reasons stated in the memorandum opinion entered herewith,
IT IS THEREFORE ORDERED that the complaint is dismissed.
IT IS FURTHER ORDERED that the defendant submit a judgment in conformity with the memorandum opinion and order within 10 days of the date of this order.
NOTES
[1]  11 U.S.C. § 524(a)(3) and (b) provide:

(a) A discharge in a case under this title
(3) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect or recover from or offset against, property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim, except a community claim that is excepted from discharge under section 523, 1228(a)(1), or 1328(c)(1) of this title, or that would be so excepted, determined in accordance with the provisions of sections 523(c) and 523(d) of this title, in a case concerning the debtor's spouse commenced on the date of the filing of the petition in the case concerning the debtor, whether or not discharge of the debt based on such community claim is waived.
(b) Subsection (a)(3) of this section does not apply if
(1)(A) the debtor's spouse is a debtor in a case under this title, or a bankrupt or a debtor in a case under the Bankruptcy Act, commenced within six years of the date of the filing of the petition in the case concerning the debtor; and
(B) the court does not grant the debtor's spouse a discharge in such case concerning the debtor's spouse; or
(2)(A) the court would not grant the debtor's spouse a discharge in a case under chapter 7 of this title concerning such spouse commenced on the date of the filing of the petition in the case concerning the debtor; and
(B) a determination that the court would not so grant such discharge is made by the bankruptcy court within the time and in the manner provided for a determination under section 727 of this title of whether a debtor is granted a discharge.
[2]  Unless otherwise noted, all statutory citations refer to title 11.
[3]  Pedlar states that this quotation is attributable to Richard Levin, majority counsel to the Sub-committee on Civil and Constitutional Rights of the Committee on the Judiciary of the House of Representatives and one of the primary draftsmen of the Code.
[4]  A literal interpretation of § 524(b)(2) raises an interesting question where the debtor spouse has filed a chapter 13 petition. That spouse proceeds under the broader discharge provisions of chapter 13, but what of the nondebtor spouse? Does the court determine whether the nondebtor would get a discharge under chapter 7 when the debtor has filed a chapter 13?
[5]  A literal reading of the Code which could require up to 5 years for a court to wait to see if a discharge would issue as to community property, is entirely unacceptable. Due to the conversion of Ruth's case to a chapter 7, the Court need not decide the question as it applies to a chapter 13 case, but clearly Congress needs to take up the issue of nondischargeability of community property claims as it applies to debtor spouses in chapter 13 cases and nonfiling spouses.
[6]  Although not before it, in a footnote the court stated that it was "not in accord" with the proposition that if one spouse's debt is held to be nondischargeable on a community claim, the creditor may satisfy that claim out of the post-petition community property of the debtor's spouse. The court felt that such an outcome denies a fresh start to the debtor spouse. "By denying the protection of the innocent spouse's discharge to her community property, the wrong doing [sic] of the non-innocent spouse is effectively imputed and the effect of the discharge is wiped out." 108 B.R. at 732, fn. 5. This Court feels that this interpretation flies in the face of the Bankruptcy Code.