In re Sunland, Inc.

536 B.R. 920, 2015 Bankr. LEXIS 2867, 2015 WL 5076980
United States Bankruptcy Court, D. New Mexico·Decided August 27, 2015·No. No. 13-13301-tr7·Published·Cited by 3 cases

Opinion

MEMORANDUM OPINION

David T. Thuma, United States Bankruptcy Judge

Before the Court is the Chapter 7 trustee’s objection to four proofs of claim filed by S & S Farms and affiliates. The basis for the objection is that the claims were filed long after the bar date. Claimants admit the late filing but argue the claims should be deemed timely because they were timely mailed to the Clerk’s office for filing. The Court held an evidentiary hearing on the matter and has considered the theories under which the claims could be deemed timely filed.. The Court concludes that none of the theories can be applied to the facts of this case, and therefore sustains the trustee’s objection.

[923]*923I. FACTS1

On October 9, 2013, the Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code, one result of which was the appointment, of Clarke Coll as the Chapter 7 trustee. Initially, creditors were mailed a “Notice of No Dividend” pursuant to Fed.R.Banks.P. 2002(e).2

On November 22, 2013, a Notice of Possible Dividend was mailed to the creditor matrix. Recipients of the notice included S & S Farms, Jacob Silhan, Eric Silhan, and Karla Silhan (together, the “Claimants”).3 The notice stated that to share in any payment from the Debtor’s estate, nongovernmental creditors had to file proofs of claim no later than 90 days after the date of service of the notice.4

Eric Silhan testified that in January 2014, he mailed an original proof of claim for each Claimant5 to the Clerk’s office at the following address:

Office of Clerk
Federal Building and United States Courthouse
500 Gold Ave. SW 10th Floor
P.O. Box 546
Albuquerque, NM 87102

Each proof of claim was signed by the Claimant and dated “1/14,” which Mr. Sil-han testified meant “January 2014.” According to Mr. Silhan, he put the original Claims in an envelope, took the envelope to the local post office, had it weighed, affixed the proper postage for regular, first-class mail, and placed the envelope in the mail. He testified that the envelope was not returned to him by the postal service. For reasons unknown, the Claims were never filed by the Clerk’s office. Other than Mr. Silhan’s testimony, Claimants presented no evidence about when or how the Claims were mailed.

In March 2014, Claimants began receiving offers to purchase the Claims. The offers continued to come in throughout 2014. In December 2014, Argo Partners offered to buy the Claims for 40% of their face amount. Claimants agreed. Soon thereafter, however, Argo told Claimants it could not. find the Claims in the Court’s claim register. That was the first time Claimants learned their Claims had not been filed.

According to Mr. Silhan, in January 2015, he sent photocopies of the original Claims to the’ Court, again by first-class mail. In February 2015, Mr. Silhan called Argo and asked if the Claims were now on the claims register. Argo said they were [924]*924not. According to Mr. Silhan, he mailed the Claims a third time in March 2015, this time by certified mail. The Claims were filed by the Clerk’s office on March 5, 2015. By then, 378 days had passed since the bar date.

II. DISCUSSION

A. Claim Objection; Burden of Proof. Allowance of a proof of claim is governed by 11 U.S.C. § 502(a) and Fed. R.Bankr.P. 3001(f). A properly filed proof of claim “constitute[s] prima facie evidence of the validity and amount of the claim.” Kittel v. First Union Nat’l Bank (In re Kittel), 2002 WL 924619 at *6, 285 B.R. 344 (10th Cir. BAP 2002) (citing Fullmer v. United States (In re Fullmer), 962 F.2d 1463, 1466 (10th Cir.1992), abrogated on other grounds, Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000)). A claim is deemed allowed unless an interested party objects. 11 U.S.C. § 502(a).

“The objecting party has the burden of going forward with evidence supporting the objection.” Allen v. Geneva Steel Co. (In re Geneva Steel Co.), 260 B.R. 517, 524 (10th Cir. BAP 2001), aff'd, 281 F.3d 1173 (10th Cir.2002). The objecting party’s evidence “must be of probative force equal to that of the allegations contained in the proof of claim.” Id. “Once the objecting party has reached this threshold, the creditor has the ultimate burden of persuasion as to the validity and amount of the claim.” Id. (citing Agricredit Corp. v. Harrison (In re Harrison), 987 F.2d 677, 680 (10th Cir.1993)). See also In re Picacho Hills Util. Co., Inc., 515 B.R. 820, 824 (Bankr.D.N.M.2014) (citing Allen); In re Wedco Mfg., Inc., 2014 WL 3534043, at *1 (Bankr.D.Wyo.2014) (same).

B. Claims Must be Filed Timely.

The bar date to file a proof of claim in a chapter 7 case is governed by Rule 3002(c), which provides in part:

(c) Time for Filing. In a chapter 7 liquidation, chapter 12 family farmer’s debt 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:
(5) If notice of insufficient assets to pay a dividend was given to creditors under Rule 2002(e), and subsequently the trustee notifies the court that payment of a dividend appears possible, the clerk shall give at least 90 days’ notice by mail to creditors of that fact and of the date by which proofs of claim must be filed.

The Rule 3002(c)(5) exception applies here. To be filed timely under the Rules, the Claims should have been filed no later than February 20, 2014.

C. Effect of Filing Late.

Section 7266 governs distribution of property of a Chapter 7 estate. The section provides, in general terms, that estate funds are paid first to allowed priority claims (including allowed administrative expense claims), then to timely filed general unsecured claims, then to late-filed general unsecured claims, then to punitive damage claims, then to post-petition interest on such claims, and lastly to the debt- or. § 726(a). Late-filed general unsecured claims have a lower priority than timely-filed general unsecured claims. In the [925]*925typical Chapter 7 case, that means that the late-filed claims receive no payment.7

D.

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In re Sunland, Inc., 536 B.R. 920, 2015 Bankr. LEXIS 2867, 2015 WL 5076980 (N.M. 2015).

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