
    In re: Humberto GUZMAN; In re: Paula Guzman, Debtors Leticia Boek, Appellant, v. Paula Guzman, aka Paola Guzman, Appellee.
    No. 00-55635.
    BAP No. CC-99-01582-BMaP.
    United States Court of Appeals, Ninth Circuit.
    Submitted Oct. 17, 2001 .
    Decided Nov. 8, 2001.
    Before BROWNING, FERNANDEZ and FISHER, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Leticia Boek appeals the Bankruptcy Appellate Panel’s affirmance of the dismissal of her 11 U.S.C. §§ 523(a)(2) and (a)(4) nondischargeability complaint in bankruptcy proceedings against Paula Guzman. Boek argues that the bankruptcy court improperly dismissed the complaint sua sponte as untimely.

The deadlines established in Federal Rule of Bankruptcy Procedure 4007(c) are not jurisdictional requirements. In re Santos, 112 B.R. 1001, 1008 (B.A.P. 9th Cir.1990). The timeliness of a dischargeability complaint is an affirmative defense that must be raised in an answer or responsive pleading. Id. at 1007. If the defense is not raised in the answer or responsive pleading, it generally is waived. Id. Although Guzman never affirmatively exercised or waived the defense, she failed to file an answer or responsive pleading at all and thereby waived the timeliness defense.

A court may sua sponte dismiss a complaint as untimely, but only when the defendant has not waived the defense. Levald, Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir.1993). If the bankruptcy court wishes to give Guzman some relief by allowing her to file an answer, even though she would otherwise be in default, it must nonetheless deem the timeliness defense waived. It may not sua sponte invoke that defense on her behalf.

Boek also argues that her complaint was “constructively filed” in a timely manner. Because Boek first raises this issue on appeal, the inadequate factual foundation in the record does not allow us to address the merits of this claim.

REVERSED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as may be provided by Ninth Circuit Rule 36-3.
     