Securities Investor Protection Corp. v. Stellatos (In re Blinder Robinson & Co.)

169 B.R. 704, 1994 U.S. Dist. LEXIS 10008
CourtDistrict Court, D. Colorado
DecidedJuly 6, 1994
DocketCiv. A. No. 93-K-213
StatusPublished
Cited by1 cases

This text of 169 B.R. 704 (Securities Investor Protection Corp. v. Stellatos (In re Blinder Robinson & Co.)) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities Investor Protection Corp. v. Stellatos (In re Blinder Robinson & Co.), 169 B.R. 704, 1994 U.S. Dist. LEXIS 10008 (D. Colo. 1994).

Opinion

MEMORANDUM DECISION ON APPEAL

KANE, Senior District Judge.

Given the exigencies of this case I have determined that oral argument would not assist me materially in reaching a decision and therefore decide it on the briefs.

Glen E. Keller, Jr., Trustee of Blinder, Robinson & Company, Inc., (“Trustee”), and the Securities Investor Protection Corporation, appeal jointly from Bankruptcy Judge Sidney Brooks’ January 14, 1993 “Order Approving Certain Late-Filed Claims as Timely Filed” and all oral findings of fact and conclusions of law relating thereto. The late-filed claims referred to in the order are those of Appellees, Christos Stellatos, Paul P. Tan and Olinka Podany.

Appellants argue the bankruptcy court erred in finding: (1) A claim filed after the expiration of the statutory period delimited by the Securities Investor Protection Act, 15 U.S.C. § 78fff-2(a)(3), which does not fall within any of the statutory exceptions to the time bar, may nevertheless be allowed; (2) Where a claimant has been accorded compliance with the notice provisions of SIPA § T8fff — 2(a)(3), the Trustee’s refusal to accept a claim filed after the statutory time period as a “customer” claim, may violate the claimant’s constitutional rights.

Appellants also challenge the bankruptcy court’s findings of fact that (1) Podany, had proven by direct and substantial evidence that she did not receive the Notice mailed by the Trustee, and (2) Stellatos did not have actual notice of the liquidation proceeding within the six month period. (Stellatos argues the bankruptcy court clearly erred in finding Appellees were actually mailed notice.)

I find the bankruptcy court’s finding that the Trustee had mailed the Notice to Stella-tos and Tan was clear error. I also find Podany falls within one of the statutory exceptions to the time bar provision. I therefore do not reach the legal issues raised by Appellants. For the reasons hereafter stated, I affirm.

I. Background.

The Securities Investor Protection Act (“SIPA”), 15 U.S.C. §§ 78aaa-78III, was enacted to protect customers of securities broker-dealers against losses which might occur as a result of the financial failure of broker-dealers. See Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 421, 95 S.Ct. 1733, 1738-39, 44 L.Ed.2d 263 (1975). SIPA established the Securities Investors Protection Corporation (“SIPC”) to maintain an insurance fund by levying assessments upon the revenues of the brokerage firms which it regulates. 15 U.S.C. § 78ccc.

If a brokerage firm is liquidated under SIPA, its customers will receive the full value of the funds and/or securities which they had on deposit provided the customers file appropriate claim forms in a timely manner. If a customer fails to do so, those securities are liquidated and the proceeds become part of the general estate. Such customer then becomes a general unsecured creditor who may or may not receive a pro rata share of his or her actual investment from the general estate.

II. Findings of Fact.

In this SIPA liquidation proceeding, the bankruptcy court made the following findings of fact: On July 31, 1990, Blinder, Robinson & Company, Inc. (“Debtor”) filed a voluntary petition pursuant to Chapter 11 of the Bankruptcy Code. On August 1, 1990, on the application of the SIPC, the district court, Judge Weinshienk presiding, appointed Glen E. Keller, Jr., as trustee for the liquidation of the Debtor under § 78eee(b)(3) of SIPA, (“Trustee”). Pursuant to § 78eee(b)(4), the liquidation proceeding was removed to the bankruptcy court.

[707]*707On August 8, 1990, the bankruptcy court entered an “Order Approving and Adopting Trustee’s Application.” (R.Doc. 14.) Following that order, on or before August 14,1990, the Trustee caused a “Notice to Customers and Creditors of Blinder Robinson & Company, Inc.” (the “Notice”), (R.Doc. 12, Ex. A), to be mailed to approximately 220,000 customers and other creditors of the Debtor and to be published in twenty-six newspapers throughout the United States as well as all editions of the Wall Street Journal. The court found the Notice was mailed, together with a customer claim form, to Appellees, Podany, Tan and Stellatos on or before August 14, 1990.

The Notice stated, inter alia, “No claim of any kind will be allowed unless filed within six (6) months after the date of this Notice.” Id. The six month period expired on February 14, 1991. Podany filed her claim with the Trustee in April 1991, Stellatos, by letter dated May 11, 1991 and Tan on April 17, 1992. The Trustee rejected each of these claims as untimely. On January 14, 1993, the bankruptcy court issued an “Order Approving Certain Late-Filed Claims as Timely-Filed,” (R.Doc. 3239), and a judgment to the same effect, overruling the Trustee’s rejection of Appellees’ claims. The Trustee and SIPC filed a timely Joint Notice of Appeal on January 22, 1993.1

On August 11, 1990, Olinka Podany trav-elled to France. While in France, on August 25, 1990, Podany was involved in a serious automobile accident and suffered severe injuries. She was in a coma for a period of time after the accident and was severely debilitated for a much longer period of time. Severe facial injuries led to a period of substantially decreased visual ability. Podany had multiple surgeries in the following months.

Only in April 1991, two months after the deadline for filing claims, was Podany physically able to review the correspondence that had accumulated during her convalescence. Podany reviewed the Notice and sent a completed claim form to the Trustee. The Trustee sent Podany a determination letter stating her claim was untimely. Podany objected to the determination.

Paul Tan lives in a community in Maryland begun around 1988. The community was originally to receive its postal service from Gaithersburg, Maryland and to share its 20878 zip code. Later, the service was changed to postal facilities in Darnestown, Maryland to the west but still within the 20878 zip code. Initially the new residents used either Gaithersburg or Darnestown as their mailing addresses in a rather haphazard fashion based upon conflicting information disseminated by developers and longer-time residents of the area. Only recently has the area become known as North Potomac, Maryland.

Tan, a member of the Postal Issues Committee of the North Potomac Citizens Association, maintains the postal service has been unusually poor. The court found the postal service to the community was of consistently poor quality, caused mainly by severe overcrowding of the postoffice and the need for separate zip codes for the different communities.

Tan did not receive the Notice, addressed to 12509 Lloydminster Drive, Darnestown, Maryland 20878. Darnestown was one of three city names used by residents of the community at one time or another. Tan does not subscribe to any newspapers, only buying single issues sporadically, usually on weekends. Tan only learned about the downfall of the Debtor after receiving a “cold call” from another brokerage firm in April 1992, approximately fourteen months after the deadline.

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Related

Securities Investor Protection Corp. v. Stellatos
124 F.3d 1238 (Tenth Circuit, 1997)

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Bluebook (online)
169 B.R. 704, 1994 U.S. Dist. LEXIS 10008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-investor-protection-corp-v-stellatos-in-re-blinder-robinson-cod-1994.