In re Sunland, Inc.

534 B.R. 793, 2015 Bankr. LEXIS 2356, 61 Bankr. Ct. Dec. (CRR) 91, 2015 WL 4397638
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedJuly 17, 2015
DocketNo. 13-13301-tr7
StatusPublished
Cited by3 cases

This text of 534 B.R. 793 (In re Sunland, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sunland, Inc., 534 B.R. 793, 2015 Bankr. LEXIS 2356, 61 Bankr. Ct. Dec. (CRR) 91, 2015 WL 4397638 (N.M. 2015).

Opinion

[795]*795 MEMORANDUM OPINION

Hon. David T. Thuma, United States Bankruptcy Judge

Before the Court is the Chapter 7 Trustee’s motion for summary judgment that John L. Saylor’s (“Saylor’s”) proof of claim be disallowed because it was filed late and lacks appropriate supporting documentation. Mr. Saylor does not dispute the late filing but argues that he did not receive notice of the bar date, so his due process rights prevent disallowance. Saylor also amended his proof of claim in an attempt to address the lack of documentation. For the reasons set forth below, the trustee’s motion will be granted in part.

I. FACTS

For the purpose of ruling on the motion the Court finds that the following facts are not in genuine dispute:1

Sunland, Inc. (“Debtor”) filed a voluntary Chapter 7 case on October 9, 2013, including a petition, all bankruptcy schedules, and a statement of financial affairs. Schedule E contains the following names and addresses:

John Saylor

Muleshoe State Bank

320 Cammry Rd DD2

Farwell, TX 79325

Saylor Investments, Inc.

380 County Road 44

Muleshoe, TX 79347-6052

These addresses also appeared in the original mailing matrix for the case. Saylor Investments, Inc.’s (“SII’s”) address (the “Muleshoe Address”) is correct. Saylor’s address (the “Farwell Address”), on the other hand, is wrong; Saylor’s correct address is the Muleshoe Address.

Saylor is the President and owner of SII. SII and Saylor are creditors of the Debtor. SII and Saylor each contracted to grow and sell peanuts to Debtor.

The Bankruptcy Noticing Center (“BNC”) served a Notice of Chapter 7 Bankruptcy Case on October 10, 2013 on the creditor matrix. Notices were addressed and mailed to SII and Saylor at their respective addresses set out above. Saylor received the notice addressed to SII at the Muleshoe Address, but did not receive the notice addressed to him at the Farwell Address.

Although Saylor knew the Debtor had filed bankruptcy (because he received SII’s notice, as president of SII), he did not file a request for notice or inquire why he had not received a notice addressed to him personally.

On November 18, 2013, the Chapter 7 trustee entered on the docket a Report of Assets. Two days later the Court Clerk prepared and filed a Notice of Possible Dividend, together with the updated creditor mailing matrix.

The BNC mailed out this second notice on November 22, 2013. A notice was mailed to SSI at the Muleshoe Address, [796]*796and also to Saylor at the Farwell address. Once again, service on the Farwell address was incorrect, and Saylor did not receive it. He did, however, receive the notice addressed to SII. The notice specified that non-governmental creditors had to file proofs of claim within 90 days of service (i.e. February 21, 2014).3 Neither Saylor nor SII filed a proof of claim by the bar date.

On March 13, 2014, Debtor filed an amended Schedule E which, inter alia, corrected Saylor’s address to the Muleshoe Address. On the same date Debtor served on Saylor at the Muleshoe Address a Notice of Bankruptcy Case, Meeting of Creditors, and Deadlines (§ 341 Notice) Given to Parties. Included with this third notice was the notice of bar date (which had passed by then).

On May 30, 2014, Saylor and SII filed proofs of claim for $28,732.42 and $8,397, respectively. Both were signed by Saylor, and both listed the Muleshoe, Texas address.

II. DISCUSSION

A. Summary Judgment Standards.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and ... [must] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether summary judgment should be granted, the Court will view the record in the light most favorable to the party opposing summary judgment. Harris v. Beneficial Oklahoma, Inc. (In re Harris), 209 B.R. 990, 995 (10th Cir. BAP 1997).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

To deny a motion for summary judgment, genuine fact issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson, 477 U.S. at 251, 106 S.Ct. 2505; Vitkus, 11 F.3d at 1539.

B. Saylor’s Proof of Claim is Untimely.

Fed. R. Bankr.P. 3002(a) requires that an unsecured creditor “file a proof of claim ... for the claim or interest to be allowed.” Rule 3002(c) provides:

(c) Time for Filing. In a chapter 7 liquidation, chapter 12 family farmer’s [797]*797debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code, except as follows:
(1) A proof of claim filed by a governmental unit, other than for a claim resulting from a tax return filed under § 1308, is timely filed if it is filed not later than 180 days after the date of the order for relief. A proof of claim filed by a governmental unit for a claim resulting from a tax return filed under § 1308 is timely filed if it is filed no later than 180 days after the date of the, order for relief or 60 days after the date of the filing of the tax return. The court may, for cause, enlarge the time for a governmental unit to file a proof of claim only upon motion of the governmental unit made before expiration of the period for filing a timely proof of claim.

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Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 793, 2015 Bankr. LEXIS 2356, 61 Bankr. Ct. Dec. (CRR) 91, 2015 WL 4397638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sunland-inc-nmb-2015.