In re Broadmoor Country Club & Apt.

158 B.R. 146, 1993 Bankr. LEXIS 1232, 1993 WL 338830
CourtDistrict Court, W.D. Missouri
DecidedAugust 26, 1993
DocketBankruptcy No. 93-20045-2-11
StatusPublished

This text of 158 B.R. 146 (In re Broadmoor Country Club & Apt.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Broadmoor Country Club & Apt., 158 B.R. 146, 1993 Bankr. LEXIS 1232, 1993 WL 338830 (W.D. Mo. 1993).

Opinion

[147]*147MEMORANDUM OPINION

FRANK W. ROGER, Chief Judge.

The Debtor filed a voluntary Chapter 11 petition under the Bankruptcy Code on January 26, 1993. This Court set a May 3, 1993 proof of claim bar date pursuant to Bankruptcy Rule 3003(c)(3). Colonial Bank (“Colonial”) filed three proofs of claim on May 11. On May 17, Colonial filed a “Motion to Enlarge Time to File Proofs of Claim or, in the Alternative, Deem Claims Timely Filed.” The Debtor filed an objection. A hearing was scheduled and held May 19,1993 at which time the Court heard statements of counsel, evidence from a witness and legal arguments.

Facts

The material facts are not in dispute. Colonial is a holder of three promissory notes signed by the Debtor’s general partner, Town & Campus International, Inc. which were validly assigned to Debtor, Broadmoor Country Club and Apartments. The first note is dated January 1, 1986 in the amount of $200,000; the second note is dated December 31, 1987 in the amount of $190,000; and, the third note is dated January 10, 1988 in the amount of $250,000. Colonial claims that the present amount due and owing on the notes with interest is $339,311.09, $292,293.90, and $383,852.44 respectively.

The Debtor defaulted on two of the notes in 1992. After demand for payment, Colonial instituted suit in St. Louis County Circuit Court. On November 18, 1992, the circuit court entered partial summary judgment for Colonial on the issue of Debtor’s liability.

In January 1993, the Debtor filed a voluntary Chapter 11 petition. On February 10, 1993, the Debtor filed Schedules listing an outstanding unsecured debt to Colonial of $1,087,494. This included both undisputed claims and the three notes which were listed as disputed and unliquidated claims on Schedule F.

Colonial attended the first meeting of the creditors. At that time, the Debtor admitted that the only dispute regarding the notes related to the interest rate to be charged on all three and the maturity date on one of them.

Colonial filed an Entry of Appearance and Request for Service of Papers on February 23. Colonial appeared before the Court at a hearing on February 26, where the Court considered a number of motions including the use of cash collateral. Colonial advised the Court that it was asserting a claim in excess of $1,000,000 against the Debtor. Also on February 26, the Court set a May 3 proofs of claim bar date.

Colonial’s counsel received the bar date notice and noted “5/3” on his daily calendar. He carried the notation on his daily calendar each day from March 15 until April 5. When counsel copied the bar date from April 5 to April 6, he mistakenly wrote “5/13.”

Colonial was in regular contact with the Debtor regarding Colonial’s claim. Counsel for Colonial produced various letters and billing statements evidencing this contact.

On May 11, eight days after the bar date, Colonial filed three proofs of claim for the notes and mailed copies to Debtor. Upon receipt, the Debtor called Colonial on May 13 to inform counsel that the bar date had passed. On May 17, Colonial filed a “Motion to Enlarge Time to File Proofs of Claim or, in the Alternative, Deem Claims Timely Filed.” Colonial argued that the time for filing should be enlarged to include May 11 because the late filing was the product of excusable neglect. See Rule 9006(b)(1). Alternatively, Colonial asked the Court to consider the claims as “informally filed.” The Debtor objected.

The Debtor filed its disclosure statement and reorganization plan on July 26, 1993. Debtor’s disclosure statement continued to include Colonial’s claims on the three notes listed as disputed.

Discussion

A creditor who holds any claim or interest in the Debtor or the Debtor’s property whose claim is either unlisted or listed [148]*148as disputed, contingent or unliquidated must file a proof of claim within the time set by the court. Bankr.R. 3003(c). Any creditor who fails to file a proof of claim by the bar date loses creditor status, and cannot participate in voting or distribution. Bankr.R. 3003(c).

The court may in its discretion enlarge the time to file claims on a showing of cause if such a request is made before the bar date. See Bankr.R. 3003(c)(3) and 9006(b)(l)(l). The court may “on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.” Bankr.R. 9006(b)(l)(2).

The Supreme Court addressed “excusable neglect” under Rule 9006 in Pioneer Investment Services Co. v. Brunswick Assoc., —— U.S.-, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The Supreme Court found that the excusable neglect standard is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer. Id. at-, 113 S.Ct. at 1494. The term “neglect” encompasses some amount of negligence by definition. Id. at-, 113 S.Ct. at 1495.

The Court in Pioneer found that what neglect is “excusable” is an equitable determination based on the facts and circumstances surrounding the party’s omission. Id. at-, 113 S.Ct. at 1498. The court below used the Dix factor test to determine that an attorney who filed a proof of claim twenty days late as the result of an upheaval in his practice was excusable neglect. Id. at-, 113 S.Ct. at 1492. The Dix factors include:

(1) whether granting the delay will prejudice the debtor;
(2) the length of the delay and its impact on efficient court administration;
(3) whether the delay was beyond the reasonable control of the person whose duty it was to perform;
(4) whether the creditor acted in good faith; and
(5) whether clients should be penalized for their counsel’s mistake or neglect.

In re Dix, 95 B.R. 134, 138 (9th Cir. BAP 1988). In Pioneer, the Court found the first four Dix factors to be appropriate considerations to determine excusable neglect. — U.S. at-, 113 S.Ct. at 1498-99. However, the Court explicitly rejected the fifth factor. Id. at -, 113 S.Ct. at 1499.

It is important to note the weight that the Court gave to the four Dix factors. Factor three encompasses the “circumstances beyond the filer’s control” test rejected by the Court. This factor alone will not justify the denial of a time extension request, however, factor three and any one of the other factors will. See Id. at-, 113 S.Ct. at 1500. The Supreme Court found that factors one, two and four weighed in favor of time extension. Id. at -, 113 S.Ct. at 1498. Factor three weighed against it because the Court did not believe that upheaval in a law practice removes filing on time from an attorney’s control. Id. at -, 113 S.Ct. at 1499. With only factor three weighed against time extension, the Court affirmed the request approval below. Id.

The Eighth Circuit recently applied the Pioneer standard in In re Harlow Fay, Inc., 993 F.2d 1351 (8th Cir.1993). In Harlow Fay,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
158 B.R. 146, 1993 Bankr. LEXIS 1232, 1993 WL 338830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-broadmoor-country-club-apt-mowd-1993.