Sunland, Inc.

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
SUNLAND, INC., No. 13-13301-tr7
Debtor.
MEMORANDUM OPINION
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.
I. 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.
1 In making these findings, the Court took judicial notice of the docket. See St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (holding that a
court may, sua sponte, take judicial notice of its docket); LeBlanc v. Salem (In re Mailman Steam
Carpet Cleaning Corp.), 196 F.3d 1, 8 (1st Cir. 1999) (citing Fed. R. Evid. 201 and concluding
that “[t]he bankruptcy court appropriately took judicial notice of its own docket”); In re Quade,
496 B.R. 520, 524 (Bankr. N.D. Ill. 2013), aff’d, 498 B.R. 852 (N.D. Ill. 2013) (a “bankruptcy
court [is authorized] ... to take judicial notice of its own docket”).
2 Sometimes referred to as a “Rule” or the “Rules.”
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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, non-governmental 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. Silhan 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
3 The notices were mailed to 304 E. Grant Ave., Morton, Texas 79346. Eric and Karla Silhan no
longer live at that address, but their son Jacob Silhan does. Claimants do not assert that they
lacked prompt notice of the bar date.
4 90 days after the date of service is February 20, 2014.
5 The four claims are: S&S Farms (owned by Eric and Karla Silhan), $188,490.61; Jacob Silhan,
$1,647.20; Eric Silhan, $23,604.55; and Karla Silhan, $52,692. 94 (together, the “Claims”).
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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 not. 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 (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 (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).
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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 debtor. § 726(a). Late-filed general unsecured claims have a lower
priority than timely-filed general unsecured claims. In the typical Chapter 7 case, that means
that the late-filed claims receive no payment.7
D. Claimants’ Request for § 726(a)(2)(A) Allowance Despite the Late Filing.
Claimants admit their Claims were filed late, but ask that the Court treat the Claims as
timely because they were mailed timely. Below, the Court discusses the possible theories under
6 Unless otherwise noted, all statutory references are to Title 11 of the United States Code.
7 The trustee testified that there may be enough money in the Sunland estate to make a
distribution of some amount to holders of late-filed claims.
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which Claimants’ request might be granted.
1. Excusable Neglect. Rule 9006(b) gives bankruptcy courts, in certain
circumstances, the power to allow late filings of pleadings, claims, and other court-filed
documents:8
(1) In General. Except as provided in paragraphs (1) and (2) of this subdivision,
when an act is required or allowed to be done at or within a specified period by
these rules or by a notice given thereunder or by order of court, the court for cause
shown may at any time in its discretion (1) with or without motion or notice order
the period enlarged if the request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order or (2) 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.
…
(3) Enlargement Governed by Other Rules. The court may enlarge the time for
taking action under Rules 1006(b)(2), 1017(e), 3002(c), 4003(b), 4004(a),
4007(c), 4008(a), 8002, and 9033, only to the extent and under the conditions
stated in those rules.
(italics added). In Chapter 11 cases, the Court may extend the deadline for filing a proof of
claim under the “excusable neglect” standard. See Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. Partnership, 507 U.S. 380, 388 (1993) (the “excusable neglect” standard empowers courts
to accept late filings “caused by inadvertence, mistake, or carelessness, as well as by intervening
circumstances beyond the party’s control”).
Chapter 7 cases are different, however, because Rule 3002(c) applies in chapter 7s but
not Chapter 11s. In Chapter 7 cases, the Court may only enlarge claim filing deadlines to the
extent allowed by Rule 3002(c). See Rule 9006(b)(1). Rule 3002(c) has no “excusable neglect”
provision. Pioneer, 507 U.S. at 389 (“The ‘excusable neglect’ standard of Rule 9006(b)(1)
8 “The time-computation and time-extension provisions of Rule 9006, like those of Federal Rule
of Civil Procedure 6, are generally applicable to any time requirement found elsewhere in the
rules unless expressly excepted.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,
507 U.S. 380, 389 n.4 (1993).
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governs late filings of proofs of claim in Chapter 11 cases but not in Chapter 7 cases.”); Jones v.
Arross, 9 F.3d 79 (10th Cir. 1993) (“excusable neglect” standard for late-filed claims applies
only in Chapter 11); In re Coastal Alaska Lines, Inc., 920 F.2d 1428, 1432 (9th Cir. 1990) (“Rule
3002(c) identifies six circumstances where a late filing is allowed, and excusable neglect is not
among them”); Smartt Const. Co. v. Chadderdon (In re Smartt Const. Co.), 138 B.R. 269, 271
(Bankr. D. Colo. 1992) (“[T]he plain language of Rule 9006 does not permit an extension of time
to file a proof of claim in a Chapter 7 case for excusable neglect”). See generally 9 Collier on
Bankruptcy, ¶ 3002.03 [2] (16th ed. 2010) (“The excusable neglect standard provided by Rule
9006(b) does not permit the court to extend the time for filing proofs of claim under Rule
3002(c)”) (citations omitted). Excusable neglect cannot be used in this case to extend the bar
date for filing the Claims.
2. Section 105(a). Bankruptcy courts are granted certain equitable powers
under § 105(a).9 Theoretically, the Court could exercise its § 105(a) equitable powers to extend
the bar date for Claimants. A considerable body of case law, however, make clear that it would
be error to do so. In Law v. Siegel, the Supreme Court held that although “[s]ection 105(a)
confers authority to ‘carry out’ the provisions of the Code,” the Court may not do so “by taking
action that the Code prohibits.” 134 S. Ct. 1188, 1194 (2014). The same holds true for actions
the Rules prohibit. See In re Scrivner, 535 F.3d 1258 (10th Cir. 2008) (“Section 105(a) does not
empower courts to create remedies and rights in derogation of the Bankruptcy Code and Rules”);
In re Combustion Engineering, Inc., 391 F.3d 190, 236 (3d Cir. 2004) (equitable powers
emanating from § 105(a) … are not a license for a court to disregard the clear language and
meaning of the bankruptcy statutes and rules”) (quoting In re Barbeiri, 199 F.3d 616, 620-21 (2d
9 “The court may issue any order, process or judgment that is necessary or appropriate to carry
out the provisions of this title.”
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Cir. 1999))). See also Official Comm. of Equity Sec. Holders v. Mabey, 832 F.2d 299, 302 (4th
Cir. 1987) (same); In re Etzel, 2004 WL 2044093 *3 (Bankr. D. Kan. 2004) (“The Court cannot
use its equitable powers under § 105(a) to circumvent the plain language of the Bankruptcy Code
or the Federal Rules of Bankruptcy Procedure”). The Court therefore cannot use its § 105(a)
powers to extend the Claimants’ filing deadline, since doing so would be contrary to Rule
3002(c). See, e.g., In re Coastal Alaska Lines, Inc., 920 F.2d at 1432 (court had no equitable
discretion to extend the time limit established by Rule 3002(c)); In re S.A. Morris Paving Co., 92
B.R. 161, 163 (Bankr. W.D. Va. 1988) (court lacks equitable power to enlarge the time for filing
a proof of claim unless one of the six situations in Rule 3002(c) exists); In re Jemal, 496 B.R.
697, 701 (Bankr. E.D.N.Y 2013) (same); In re Hyde, 413 B.R. 719, 721 (Bankr. D. Idaho 2009)
(court may not equitably enlarge deadline for filing a claim in a chapter 12 case; one of the Rule
3002(c) exceptions must apply).
3. The Mailbox Presumption.
a. In General. In the common law, “proof that a letter properly
directed was placed in a post office creates a presumption that it reached its destination in usual
time and was actually received by the person to whom it was addressed.” Hagner v. U.S., 285
U.S. 427, 430 (1932) (citing Rosenthal v. Walker, 111 U.S. 185, 193 (1884)).10
b. Bankruptcy Notices. The “mailbox presumption” is frequently
relied upon by bankruptcy courts to find that notices mailed by the clerk’s office were received
by creditors. For example, in In re Ricketts, the court stated:
Appellant denies receiving the bankruptcy court's January 13 notice, although his
10 This “mailbox presumption” should not be confused with the “mailbox rule” in contract law,
i.e., that once an offer is made, acceptance is effective when the offeree puts the signed contract
in the mail. See, e.g., Hinc v. Limo-O-Sol Co., 382 F.3d 716, 719 (7th Cir. 2004) (citing
Restatement (Second) of Contracts § 63 (1979)).
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name appears on the court's mailing matrix. Where the bankruptcy court record
shows a certificate of mailing and a complaining party submits an affidavit
declaring notice was not received, the weight of the evidence favors the court's
certificate. If a party were permitted to defeat the presumption of receipt of notice
resulting from the certificate of mailing by a simple affidavit to the contrary, the
scheme of deadlines and bar dates under the Bankruptcy Code would come
unraveled. For this reason, an allegation that no notice was received does not, by
itself, rebut the presumption of proper notice. In re American Properties, 30 B.R.
247, 250 (Bankr. D. Kan. 1983).
80 B.R. 495, 497 (9th Cir. BAP 1987). Similarly, in In re Schicke, the Bankruptcy Appellate
Panel affirmed the bankruptcy court’s ruling that a creditor received notice of the bar date for
filing nondischargeability actions:
Papers sent by United States mail are presumed received by the addressee, absent
evidence to the contrary. See, e.g., Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.
Ct. 382, 28 L. Ed. 395 (1884); In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th
Cir. 1995); In re Bucknum, 951 F.2d 204, 206–07 (9th Cir. 1991); Denmon v.
Runyon, 208 B.R. 225 (D. Kan. 1997); In re Grand Union Co., 204 B.R. 864
(Bankr. D. Del. 1997). Here, it is undisputed that the bankruptcy court clerk sent
the Bankruptcy Notice to [creditor] to the address listed in the debtor's Schedule
F. Thus, it must be presumed that the Bankruptcy Notice was received by the
addressee. This presumption was in no way rebutted by [creditor].
290 B.R. 792, 801 n.20 (10th Cir. BAP 2003). See also Velasquez v. Delta Airlines Inc., 2008
WL 2225832, at *2 (D. Utah 2008) (plaintiff’s denial of receipt did not rebut the presumption
that the mailed notice had been received); In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir.
1995) (to the same effect); Denmon v. Runyon, 208 B.R. 225, 227 (D. Kan. 1997) (when notice
involves a mailing from a bankruptcy court, and a certification of mailing is in the record, an
allegation of denial of receipt does not, by itself, rebut the presumption of proper notice); In re
Loomas, 2013 WL 5615943 at *4 (10th Cir. BAP 2013) (“as the bankruptcy court correctly
pointed out, evidence of proper mailing [by the court] raises a rebuttable presumption of delivery
. . . mere denial of receipt alone does not rebut the presumption that the mailed item was
received”).
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c. Creditors Filing Proofs of Claim by Mail. Less clear is whether
creditors are entitled to the mailbox presumption when mailing the proofs of claim to the Clerk’s
office for filing. Some courts view claim filing as different in kind from sending notices, and
therefore are unwilling to apply the mailbox presumption when a creditor asserts it timely mailed
a claim that was not filed. For example, in Chrysler Motors Corp. v. Schneiderman (In re
Chrysler Motors Corp.), the Third Circuit held:
A mailing in itself is not a filing. If we adopted the rebuttable presumption rule
we would greatly complicate bankruptcy administration, as it would be uncertain
in many cases whether a scheduled creditor failed to file a proof of claim because
of an oversight or because it was abandoning its claim. We also point out that a
creditor can protect itself with minimal expense through the use of certified mail
with a return receipt requested when filing a proof of claim or, if convenient, can
provide for manual filing across the counter in the clerk's office. Furthermore, a
rebuttable presumption rule would easily permit a creditor which failed to file a
proof of claim to fabricate evidence, not easily disprovable, that it had been
properly mailed.
940 F.2d 911, 914-15 (3d Cir. 1991). See also In re Edwards, 2010 WL 3807161 *5 (Bankr.
M.D. Ala. 2010) (follows Schneiderman); In re Maurice, 167 B.R. 114, 133 (Bankr. N.D. Ill.
1994) (same); In re 50-Off Stores, Inc., 220 B.R. 897, 905 (Bankr. W.D. Tex. 1998) (same).
Other courts have allowed creditors to use the mailbox presumption upon proof that they
timely mailed a claim to the clerk’s office. In In re Nimz, the Seventh Circuit held:
It is true that mailing alone does not constitute filing, but that filing requires
delivery and receipt by the proper party. United States v. Lombardo, 241 U.S. 73,
36 S. Ct. 508, 60 L. Ed. 897 (1916). It is also well recognized, however, that a
timely and accurate mailing raises a rebuttable presumption that the mailed
material was received, and thereby filed. Hagner v. United States, 285 U.S. 427,
430, 52 S. Ct. 417, 76 L. Ed. 861 (1932); Haag v. Commissioner, 59 F.2d 516,
517 (7th Cir. 1932).
…
Accordingly, here the presumption of receipt must prevail, and we conclude that it
must be found that the proofs of claim were received, and therefore filed, before
the six month limitation period expired.
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505 F.2d 177, 179 (7th Cir. 1974). See also Graham v. Hudson (In re Graham), 290 B.R. 424,
441 (Bankr. N.D. Ga. 2003) (proof of mailing the claim established rebuttable presumption of
receipt); In re Pyle, 201 B.R. 547, 552 (Bankr. E.D. Cal. 1996) (same, at least for Chapter 13
cases); In re Kero-Sun, Inc., 63 B.R. 50, 53 (Bankr. D. Conn. 1986) (quoting and following
Nimz).
Judge Leif Clark analyzed the opposing views in In re 50-Off Stores, and concluded
Schneiderman had the better analysis:
The more straightforward application of ordinary rules of statutory construction to
the plain language of the bankruptcy rules, employed by the Third Circuit in
Schneiderman, seems far more defensible (and sensible). . . . We conclude that
the “mailbox rule” does not apply to the filing of claims, and that no presumption
is therefore to be indulged in favor of the movants with regard to their contention
that they mailed their claims to the bankruptcy court in a timely fashion.
220 B.R. at 906. Neither the United States Supreme Court nor the Tenth Circuit has ruled on the
issue.
d. Proof of Mailing. Before a creditor could invoke the mailbox
presumption to show his claim was timely filed, he must introduce sufficient proof of mailing.
In Sorrentino v. IRS, 383 F.3d 1187 (10th Cir. 2004), the Tenth Circuit discussed the mailbox
presumption as it applied to mailing a tax refund to the Internal Revenue Service. A divided
panel held it was appropriate to allow the presumption, but only if the proof of mailing included
something more than the self-serving testimony of the mailer. The court reasoned:
Allegations of mailing are easy to make and hard to disprove. Cf. Benavidez v.
City of Albuquerque, 101 F.3d 620, 626 (10th Cir. 1996) (recognizing that
proving a negative may be difficult). Because the taxpayer, not the IRS, controls
the mailing of a tax return, the taxpayer, not the IRS, has access to any evidence
demonstrating the return has been mailed. To establish a presumption of delivery .
. . the burden in these types of cases thus rests on the taxpayer to make “a
meaningful evidentiary showing” at the outset.
Id. at 1194. The court required some independent corroborating evidence to establish a
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presumption of timely delivery, such as a verifiable proof of postmark or dated receipt. Id.
Without a requirement of corroborating evidence, the result would be “a jury trial every time the
[mailer . . .] alleges timely mailing.” Id. Moreover, the requirement of corroborating evidence
means that the trial court often will not have to make a credibility determination because the
mailer’s testimony alone, assuming its truth, is insufficient. Id. at 1195. See also Crook v.
Comm’r, 173 Fed. Appx. 653, 657 (10th Cir. 2006) (applying Sorrentino in a prison-mailbox
case); Myers v. Dolgencorp, Inc., 2006 WL 408242, at *7 (D. Kan. 2006) (applying Sorrentino’s
requirement of independent corroborating evidence of mailing to a dispute under the Family and
Medical Leave Act); Orman v. U.S., 2006 WL 2457930 (D. Kan. 2006) (following Sorrentino).
The Court concludes that if the Tenth Circuit were to hold that the mailbox presumption
applies in proof of claim filing cases like this one, it would adopt Sorrentino’s requirement that
the claimant provide corroborating evidence in support of any self-serving testimony about
mailing.11
E. Claimants Did Not Carry Their Burden of Proof.
As noted above, Claimants presented no corroborating evidence to support Mr. Silhan’s
testimony. Therefore, the mailbox presumption does not arise even if it otherwise would have.
Without the presumption, Claimants did not carry their burden of proving the Claims
were timely. The fact that the Claims were not filed until March, 2015 is substantial evidence of
late filing. While the Court gives Mr. Silhan’s testimony weight, the Court finds that the actual
filing date carries greater weight than the uncorroborated testimony.
This case is a good example of the need for corroborating evidence of mailing. Mr.
Silhan was a credible witness and the Court has no reason to doubt his honesty or integrity. On
11 The Court is not making a determination about what type or weight of corroborating evidence
would be sufficient to raise the mailbox presumption.
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the other hand, it seems very unlikely that two properly addressed, stamped envelopes, mailed
almost a year apart, would both be lost by the Post Office (before delivery) or the clerk’s office
(after delivery). The mail was never returned. It is impossible for the Court to know what
happened. Assuming the mailbox presumption would be extended to cases such as this one,
corroborating evidence supporting the mailer’s testimony would have been helpful.
III. CONCLUSION
The Court reviewed the possible ways it might allow Claimants’ Claims under
§ 726(a)(2)(A), despite the fact the Claims were filed late. No rule or theory (e.g. excusable
neglect, § 105(a), or the mailbox presumption) affords Claimants relief in this matter. On the
merits, the Claimants did not carry their burden of proving that their Claims were timely mailed.
The Court therefore rules that the Claims are untimely and must relegated to the payment priority
set forth in § 726(a)(3). A separate order will be entered.
______________________________________________
Hon. David T. Thuma
United States Bankruptcy Judge
Entered: August 27, 2015.
Copies to:
Thomas D. Walker
500 Marquette Ave. NW, #650
Albuquerque, NM 87102
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Eric Silhan
804 East Harding Ave.
Morton, TX 79346
Clarke C. Coll
P.O. Box 2288
Roswell, NM 88202
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