Opposition Brief — Bullock v. Oppenheim, Appel, Dixon & Co., 110 S. Ct. 55 (1989) (No. 88-1870)

. ‘sy Bupreme Court, U.S, )

a, ~*~ FILED

=m,

oO j

No. 88-1870 | JUN 14 1888

JOSEPH F. SPANIOL, JR.

IN THE er ail

Supreme Coumt of the Anited States

OCTOBER TERM, 1988

In the Matter of ROBINTECH., INC..

Debtor.

BOB BULLOCK, Comptroller of Public Accounts

of the State of Texas.

Petitioner,

VS.

OPPENHEIM, APPEL, DIXON & CO.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

D. M. LYNN

PETER B. HASKEL*

Jo ANN BIGGS

MARILYN D. GARNER

Moore & PETERSON

A Professional Corporation

2800 First City Center

Dallas, Texas 75201

(214) 754-4800

Attorneys for Respondent

*Counsel of Record

QUESTIONS PRESENTED

The questions presented are the following:

Did the Court of Appeals for the Fifth Circuit correctly

apply the plain language of Bankruptcy Rule 2002(a)(8) by

refusing to extend the bankruptcy claim bar date by three days

under Bankruptcy Rule 9006(f) when notice of the bar date

was sent by mail to creditors twenty days before the bar date as

required by Bankruptcy Rule 2002(a)(8)?

Does the question presented by the Petition for a Writ of

Certiorari in the instant case rise to the level of importance

warranting this Court’s exercising its discretion to grant review?

1

TABLE OF CONTENTS

QUESTIONS PRESENTED ......:.0.0...: cs nsnenssenerses

TABLE OF Al) THORIIIES «03.05.3352

SUMMARY OF ARGUMEN 6 a.iin.ciicecccesccnnssesessesersentases

PRU MIEN DE iisiccds icvescecescccccvecestuesceicsnesneseaenertnebagepeeenenans

|. The Decision of the Court of Appeals Below was

CORTCCA vivciccvisdencnnnecesccardssnesacnvaseenseeentanal aeeenenee aaa

A. The court below correctly relied on its inter-

pretation of Federal Rule of Civil Proce-

dure 6(e) in determining the = in-

applicability of Bankruptcy Rule 9006(f) ...

B. Under the plain language of Bankruptcy

Rules 9006(f) and 2002(a)(8). the bar

date herein should not be extended three

DAYS vacvcsccnsssnvssnsneriacteusucmnereetiaasatacein iain aeaE

Il. The Question Presented by Petitioner Does Not

Merit Supreme Court Review ...........ccccccsseseseeeoees

OO) BS. 8 Rineememenennnenae ee cai ecaia oes eee

APPENDIX

In re Roberts. Ch. 7 Case No. 87-00053 (Bankr. D

Vt. March 31. 1989) ( LEXIS Bankr. 528)

TABLE OF AUTHORITIES

Page

CASES

In re Aguilar, 861 F.2d 873 (Sth Cir. 1988) wo... 3

In re Allegheny Int'l, Inc., 93 Bankr. 910 (Bankr. W.D.

Nee es va ascacpaicabnceoseavesucaenss 6

C. M. Wilburn v. First Citizens Bank & Trust Co. (In

re Wilburn), 72 Bankr. 167 (Bankr. D.S.C. 1986) .... 6

Carr v. Veterans Administration, 522 F.2d i355 (Sth

TL sek vcsnettvantiewhasupanrasee i. 3

Centrust Sav. Bank v. Duncan (In Re Duncan), &6

Bankr. 288 ( Bankr. M.D. Fla. 1988 )......00000000.. 6

Clements v. Florida East Coast Ry. Co., 473 F.2d 668

ese wuiesdavecniuncereneves 3

Flint v. Howard, 464 F.2d 1084 ( Ist Cir. 1972) 2.0.0.0... 3

Goff v. Pfau, 418 F.2d 649 (Sth Cir. 1969). cert.

I 1 3

Highland Community Fed. Credit Union v. Williams

(In re Williams), 75 Bankr. 887 (Bankr. D. Or.

ec cansissyacsrahsndecsswevnncnivonsreosesss 6

_ Magnum Import Co. v. Coty, 262 U.S. 159 (1923) ........ 8

Mosel v. Hills Dep't Store, Inc., 789 F.2d 251 (3d Cir.

ag yy is syukvsbsebwseeadssvesivadesnnnacs 3

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

oso Loc ssvsbvinawvenenavevesens ns s

In re Roberts, Ch. 7 Case No. 87-00053 ( Bankr. D.

Vt. March 31. 1989) (LEXIS Bankr. 528)................. 6. Appendix

In re Robintech, Inc., 69 Bankr. 663 ( Bankr. N.D. Tex.

1987). aff'd, Dkt. No. CA4-87-275-K (N.D. Tex.

March 23. 1988). rev'd sub nom. Oppenheim. Appel.

Dixon & Co. v. Bullock (In re Robintech), 863 F.2d

393 (Sth Cir. 1989). petition for cert. filed,

US. ____ (U.S. May 15. 1989) No. 88-1870........ a5

In re Seiscom Delta, Inc.. 857 F.2d 279 (Sth Cir.

Nee ce cacvasanvennsoaveveecssees>» 3

United States ex rel.. Tennessee Valley Auth. v. Lase-

ment & Right of Way, 386 F.2d 769 (6th Cir. 1967),

cert. denied sub nom. Skaggs v. United States. 390

cv inexasvseracensevnncnversoudse 3

In re Wellman, 74 Bankr. 91 (Bankr. D.S.C. 1985)... 6

In re Whitten, 49 Bankr. 220 (Bankr. N.D. Ala. 1985). 6

—

STATUTES

28 U.S.C.A. § 2()75 West 19RD

RULES OF THE SUPREME COURT OF THI

UNITED STATES

Rule | 7

FEDERAL RULES OF CIVIL PROCEDURI

Rule 6(e)

RULES OF PROCEDURE IN BANKRUPTCY

Rule 2002(a)

Rule 2

Rule 3003(¢)(3

Rule 9006(e )

Rule 9006(

OOI( a )f s )

MISCELLANEOUS

Supreme Court Order Prescribing Rules. Apt

1983. reprinted, 75 L.Ed.2d xlin (1983

a U.S.C.A. Rules | to 7000, XITL( West 1984

Advisory Committee on Bankruptcy Rules) Not

Bankruptcy Rule 200 )

Advisory Committee on Bankruptcy Rules’ N

ankruptcy Rule 9006(1

2

>

SUMMARY OF ARGUMENT

The court below correctly decided that the requirements of

Bankruptcy Rule 2002(a)(8) were complied with in the instant

case when the notice of the bankruptcy claim bar date (the

“bar date”) was placed in the mail a full twenty days before the

bar date. The Fifth Circuit Court of Appeals properly rejected

Petitioner’s contention that Bankruptcy Rule 9006(f) should be

viewed as extending the bar date by three additional days

because Rule 9006(f) applies only when a time period runs

from the date on which a notice is served, and not, as here,

when the notice simply informs a party of the deadline by

which that party must perform an act. Furthermore, even if the

court below were incorrect in its holding, the issue presented by

Petitioner does not merit review by this Court.

ARGUMENT

a

The Decision of the Court of Appeals Below Was Correct.

A. The court below correctly relied on its interpretation

of Federal Rule of Civil Procedure 6(e) in determiz

ing the inapplicability of Bankruptcy Rea (f).

Bankruptcy Rule 2002(a) vides that all creditors in

a Chapter 11 bankrupses-froceeding shall receive not less than

twenty days ice by mail of the time fixed for filing proofs of

ffs (the “bar date’). In Chapter 11 bankruptcy cases, such

as the instant case, the actual bar date is set pursuant to court

order under Bankruptcy Rule 3003(c)(3), not by Bankruptcy

Rule 2002(a). The Advisory Committee on Bankruptcy Rules’

Note to Bankruptcy Rule 2002(a) states that subdivision (a) of

the rule is satisfied if the notices are deposited in the mail at

least twenty days before the bar date because notice by mail Is

complete upon mailing. Bankruptcy Rule 9006(f) provides, by

contrast. that when there is a right or requirement to do some

act within a prescribed period which begins to run from service

of a notice, and the notice is served by mail. three days shall be

added to the prescribed period.

As is demonstrated below. since the bar date tn the instant

case was set by court order and not by service of notice

pursuant to Bankruptcy Rule 2002(a). Bankruptcy Rule

9006(f) had no application here.

The Advisory Committee on Bankruptcy Rules’ Note to

Bankruptcy Rule 9006(f) states that Rule 9006(f) “is the same

as” Rule 6(e) of the Federal Rules of Civil Procedure.

Advisory Committee Note to Bankruptcy Rule 90Q06LO rife

court below naturally looked. thepebere

Civil Procedure 6Co+—ertftermine the proper application of

Bankeweprtt™ Rule 9006(f). In examining precedents inter-

preting Federal Rule of Civil Procedure 6(e). the Fifth Circuit

correctly referred to its decision in Carr v. Veterans Adminis-

tration, 522 F.2d 1355, 1357-58 (Sth Cir. 1975). While the

facts and issues in Carr were different from the facts and issues

in the case at bar. the Carr court’s interpretation of Rule 6(e)

and its purpose is applicable to this case. In Carr, the Fifth

Circuit observed that the probable purpose of Rule 6(e) Is only

to guarantee that parties served personally have no advantage

over those served by mail when the choice of service by mail or

in person is at the option of the party effecting service. Rule

6(e). Carr held. had no application when all parties must be

served by mail. In the instant case. the Fifth Circuit similarly

recognized that Rule 6(e) (and Bankruptcy Rule 9006(1) )

would not apply because all parties were served by mail as

required by Bankruptcy Rule 2002(a).

Moreover. Carr is merely one of a long line of cases from

several circuit and lower federal courts which have consistently

ruled that Federal Rule of Civil Procedure 6(e) extends a time

period only when a party served with notice by mail has a

“prescribed period” to act and the time period begins to run

from the date of service of such notice. but that Rule 6(e) will

not extend a fixed deadline merely because notice of that

deadline is served by mail. Carr, 522 F.2d at 1357. Thus, the

court in Carr declined to invoke Rule 6(e) to extend the six-

month period for filing a federal tort claim after a federal

agency mailed a final notice of denial to a claimant. See also.

Mosel v. Hills Dep't Store, Inc., 789 F.2d 251 (3d Cir. 1986)

(rule 6(e) does not extend ninety-day period: from date of

receipt of EEOC right-to-sue letter in which to file Suit);

Clements v_ Flop t=arst-COUnt Ky. Co., 477 F3 (Sth Cir.

1973) (rule 6(e) does not provide ian

pay costs “within 90 days”); Flint v. Howard. 464 F.2d 1084

(Ist Cir. 1972) (same: ten-day period for filing motions under

Federal Rule of Civil Procedure 52 or 59): Goff v. Pfau, 418

F.2d 649 (Sth Cir. 1969), cert. denied. 398 US. 93] (1970)

(same: time for filing petition for review of referee’s order

under former Bankruptcy Act); United States ex rel Tennessee

Valley Auth. v. Easement & Right of Way, 386 F.2d 769 (6th

Cir. 1967), cert. denied sub nom. Skaggs v. United States, 390

U.S. 947 (1968) (same: statutory time for filing exceptions to

commissioners’ award ).

The Court of Appeals below was also correct in seeking

guidance from Federal Rule of Civil Procedure 6(e ) In inter-

preting Bankruptcy Rule 9006(f). Rule 9006( f ). like a number

of Bankruptcy Rules. is explicitly modeled on a counterpart

Federal Rule of Civil Procedure. It is only logical, therefore,

for a court that construes such a Bankruptcy Rule to be guided

by constructions of the equivalent Federal Rule of Civil Proce-

dure. The Court of Appeals for the Fifth Circuit has used this

method at least twice previously. See In re Aguilar, 861 F.2d

873. 874-75 & n.2 (Sth Cir. 1988): In re Seiscom Delta, Inc..

857 F.2d 279, 281 (Sth Cir. 1988).

Petitioner objects to the Court of Appeals’ reliance on

precedent interpreting Federal Rule of Civil Procedure 6(e).

Petitton, p.5. Petitoner fails, however, to Justify this objection

in light of the words of the Advisory Committee on Bankruptcy

Rules’ Note to Bankruptcy Rule 9006(f). which instructs that

Rule 9006(f) “is the same as” Rule 6(e) of the Federal Rules

of Civil Procedure. Moreover, Petitioner cites no cases that

interpret Rule 6(e) in a manner contrary to the precedent relied

ipon by the Court of Appeals. Respondent has found no such

uy I

Lal SC

B. Under the plain language of Bankruptcy Rules

9006(f) and 2002(a)(8). the bar date herein should

not be extended three days.

Pet wonel incorrectls States 1n his Peni. ier tiidl he had tne

5

o7 Trea proof of claim w n not less than 20 days afte

service f dl ne le ( ft bar date Pet LOT p.( (empn

sis In original). Petttoner also argues that the plain language

of the Bankruptcy Rules should control. /d. at p.5. Petitioner

}, \ > s>T TY) 1 Bal »TTyYT »f try >» n| ir) ail qd > \T RB ni } 5 R\ »

however, misinterprets the plain language Ol ankxruptcy Rule

2002(a)(8). which does not establish the bar date but on

provides the mechanism tor giving notice to creditors of the

deadline for filing a proof of claim. The Rule states that “the

clerk. or some other person as the court may direct. shall give

} j nt > va) r

the debtor, the trustee. all creditors and indenture trustees nm

t| T Y() 1a narvti » by ry ,] t 4 THe I o> TT) va fcyr

i@Ss tha PF Gays NOTICE VY mall Ol] ( ) the time TXead ti

j ‘ bon aiden » Wf)? »» r tc

filing proofs of claims pursuant to Rule 3003(c).” Bankruptcy

) » YOM)D \ 7, a ly. ] , 7. ,

Rule 2002(a)(8) As stated in the Advisory Committee 0!

Bankruptcy Rules’ Note to Rule 2002(a). “Since notice by ma

’ '

S complete on Malling the requirement ol subdivision ( «a } ‘

’ } +} lanpycite dd ' W491 ace OO A

‘ SiHed LTC OUCES C AePoOsited C Mall dl leaSt « Ga\

» } . } ‘to >

TOE tne evel \dGVISO \ Con ] ice © Bankruptcy R 2

,

} ry) ry 1) sie t ! hin

L SCEVICK \ cil 2 \ cu. Llilns }

5 5

nitpart }

bhILL A Bank y ty Ru L } i) a S OUD] Ww tO Ch W

. } . r | Yor rt RB ]

\ \ y \ \ i NI XNCY ¢ ‘ Ul \

\ \ ! 1 } KO ) \ t

\ \ Ss \ \ \ S( \ < i

Rule 3003(¢c)(3). Bankruptcy Rule 2002(a)(8) requires only

that notice of the bar date be placed in the mail twenty days

before the bar date, which Petitioner admits was done in this

case. It is clear, therefore, that the Bankruptcy Rules do not

guarantee creditors a iwenty-day period to file a claim, as

Petitioner contends, but instead only provide that notice of the

bar date will be placed in the mail twenty days before that date.

Petitioner also mistakenly asserts that Bankruptcy Rule

9006(f) extends the bar date by three days because the notice

of the bar date is served by mail. That interpretation is

incorrect because it purports to invoke the rule in circumstances

to which the rule was not intended to apply. Rule 9006(f)

provides the following:

When there is a right or requirement to do some act or

undertake some proceedings within a prescribed peri-

od after service of a notice or other paper and the

notice or paper other than process is served by mail,

three days shall be added to the prescribed period.

Rule 9006(f) is inapplicable to the case at bar because

Petitioner was required to perform an act to protect his rights

(to wit: file a proof of claim) before a definite deadline, as

distinguished from being required to perform an act “within a

prescribed period” of time after service of the notice. The

notice of bar date did not give Petitioner a “prescribed period”

after service of a notice within which to do some act; it simply

notified Petitioner that any claims filed after February 14, 1984

would be barred. Thus, construing the plain language of

Bankruptcy Rules 2002(a)(8) and 9006(f), the Court of

Appeals below properly held that the bar date in the instant

case should not be extended three days merely because notice

of the bar date was served by mail.

Significantly, with the sole exception of the Bankruptcy

Court decision tn the instant case, 69 Bankr. 663, all Bankruptcy

Courts which have interpreted Bankruptcy Rule 9006(f) in the

context of proof of claim bar dates have reached the same result

as did the Circuit Court below. See In re Roberts, Ch. 7 Case

No. 87-00053 (Bankr. D. Vt. March 31. 1989) (LEXIS Bankr.

528) (reproduced in Appendix hereto) (rule 9006(f) does not

extend Chapter 7 bar date): Jn re Allegheny Int'l, Inc., 93

Bankr. 910, 912 (Bankr. W.D. Pa. 1988) (same; Bankruptcy

Code chapter unstated): In re Wellman, 74 Bankr. 91, 93

(Bankr. D.S.C. 1985) (same: Chapter || bar date); /n re

Whitten, 49 Bankr. 220, 222 (Bankr. N.D. Ala. 1985) (same;

Chapter 13 bar date). See also Centrust Sav. Bank v. Duncan

(In Re Duncan), 86 Bankr. 288 (Bankr. M.D Fla. 1988) (rule

9006(f) does not extend sixty-day period for filing complaint to

determine dischargeability ); Highland Community Fed. Credit

Union v. Williams (In re Williams), 75 Bankr. 887 (Bankr. D.

Or. 1987) (same): C.M. Wilburn v. First Citizens Bank & Trust

Co. (In re Wilburn), 72 Bankr. 167 ( Bankr. D.S.C. 1986) (rule

9006(f) does not extend filing date for complaint objecting to

discharge ).

Moreover. to accept Petitioner’s interpretation would

substantively change the meaning of Bankruptcy Rule 2002(a).

Rule 2002(a) mandates that twenty days notice of eight

enumerated deadlines be provided by mail to parties in interest,

with no express provision for personal or other method of

serving such notices. Thus, if Petitioner’s proposed inter-

oretation of Rule 2002(a) were to be accepted, this Court

would be rewriting Rule 2002(a) to require twenty-three days,

rather than twenty days. notice in each of the eight enumerated

situations.

The above observation merely highlights the — in-

applicability of the three-day extension under Bankruptcy Rule

9006(f) to notice of a bankruptcy claim bar date. Bankruptcy

Rule 3003(c¢)(3) governs extensions of proof of claim bar dates

in Chapter 11 cases. not Rule 9006(f). This Court. by

promulgating Bankruptcy Rules 2002(a)(8) and 9006(f)

effective August 1. 1983 ( See 28 U.S.C.A. § 2075 ( West 1982):

Supreme Court Order Prescribing Rules, April 25, 1983, re-

printed, 75 L.Ed.2d xiii (1983) and 11 U.S.C.A. Rules | to

7090. XIII (West 1984) ), has approved twenty days notice of

the bar date by mail as the minimum fair notice time period.

Petitioner does not allege that twenty days notice by mail was

unfair. He is simply asking this Court to amend Bankruptcy

Rule 2002(a)(8) in order to allow Petitioner three additional

days to which he is not entitled under the rules as they now

stand.

The Question Presented by Petitioner Does

Not Merit Supreme Court Review.

Even if the Court of Appeals for the Fifth Circuit were

incorrect in holding that Bankruptcy Rule 9006(f) does not

apply in this case, the issue presented in the Petition for a Writ

of Certiorari is not worthy of this Court’s review. Rule 17 of the

Rules of the Supreme Court of the United States indicates that

a writ of certiorari will be granted only when “there are special

and important reasons therefor” and lists examples of the

character of reasons that will be considered. The question upon

which Petitioner seeks review simply does not fall within any of

those examples or otherwise merit the attention of this Court.

Petitioner asserts that review of the opinion below is

necessary to resolve an important problem as to the inter-

pretation of the Bankruptcy Rules. Yet Petitioner fails to cite

any other appellate cases dealing with the issue he presents to

the Court, and Respondent has found none. It is respectfully

submitted that if the question presented by Petitioner were as

important as Petitioner suggests, then other litigants would

have raised it on appeal at some time since Bankruptcy Rules

2002(a) and 9006(f) became effective in 1983.

Moreover, the decision of the Fifth Circuit below is not in

conflict with any other reported decisions from any court other

than that of the Bankruptcy Court in this very case. See 69

Bankr. 663 (Bankr. N.D. Tex. 1987). The interrelationship

between Bankruptcy Rules 9006(f) and 2002(a)(8) is not

“unresolved.” as implied by Petitioner. Petition, pp. ul. 5.

Numerous Court of Appeals decisions, cited at pages 3 and 4

above, have consistently interpreted Federal Rule of Civil

Procedure 6(e). Since. as established above, Bankruptcy Rule

9066(f) is “the same as” Federal Rule of Civil Procedure 6(e).

these decisions, by extension, uniformly and correctly construe

Bankruptcy Rule 9006(f). Moreover, the Bankruptcy Court

decisions, cited at pages 7 and 8 above, have explicitly and

consistently ruled contrary to Petitioner’s interpretation of

Bankruptcy Rule 9006(f).

The decisions of the Bankruptcy Court and District Court

below were anomalous departures from the well-settled judicial

interpretation of Federal Rule of Civil Procedure 6(e) and its

Bankruptcy Rule counterpart. The Court of Appeals below.

properly performed its appellate function by deciding this case

according to the universally accepted construction of Rule 6(e)

based upon the plain meaning of that rule.

Any issue that is dispositive of a case, of course, will be

“important” to the parties involved. But this does not render

every such question “special and important” within the mean-

ing of Supreme Court Rule 17. See Rice v. Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70. 74 (1955): Magnum Import

Co. v. Coty, 262 U.S. 159, 163 (1923). Petitioner seeks to

invoke the discretionary review power embodied in a writ of

certiorari to obtain his fourth hearing upon a technical issue of

bankruptcy procedure that has been of interest to very few

litigants (as evidenced by the dearth of reported decisions ) and

apparently to no appellants other than Petitioner. He seeks this

extraordinary remedy not really to seek clarification of any

“unresolved” question of law, but merely in an attempt to

convince this Court to change a clear. fair. and well-settled

Bankruptcy Rule so that Petitioner will have more time to file

his proofs of claims in bankruptcy cases. For the reasons stated

above. the Court should reject this attempt.

CONCLUSION

The question of whether Bankruptcy Rule 9006(f) should

be invoked to extend the bar date in this case by three days was

adequately reviewed and correctly decided by the Court of

Appeals for the Fifth Circuit. The Fifth Circuit’s decision that

Bankruptcy Rule 9006(f) does not apply to the instant facts is

the correct interpretation of that rule and achieves a fair result

to all parties in interest. Moreover, the question presented by

‘Petitioner is not sufficiently significant to warrant review by this

Court.

Wherefore, a writ of certiorari should not issue to review

the judgment and opinion of the Court of Appeals for the Fifth

Circuit in this case.

Respectfully submitted.

D. M. LYNN

PETER B. HASKEL*

Jo ANN BIGGS

M YN D. GARNER

//

Moore & PETERSON

A Professional Corporation

2800 First City Center

Dallas. Texas 75201

(214) 754-4800

Attorneys for Respondent

OPPENHEIM, APPEL. DIXON

& Co.

*Counsel of Record

APPENDIX

In re Roberts, Ch. 7 Case No. 87-00053 (Bankr. D.Vt.

March 31, 1989) (LEXIS Bankr. 528) (Text reprinted verba-

tim from LEXIS printout except lengthy quotations are in-

dented for clarity. ).

App. 2

IN RE: EDWARD ROBERTS,

d/b/a/ ROBERTS CONSTRUCTION, Debtor

Case No. 87-00053 Chapter 7

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF VERMONT

1989 Bankr. LEXIS 528

March 31, 1989, Decided and Filed

[*1]

Francis G. Conrad. U.S. Bankruptcy Judge

COUNSEL:

Raymond J. Obuchowski, Esq., Mayer, Berk & Obuc-

howski, South Royalton, Vermont, Trustee, pro se.

Fred I. Parker. Esq.. Langrock. Sperry, Parker & Wool,

Burlington, Vermont, for creditor Gordon N. Owen, d/b/a

G.N. Owen & Sons (Owen).

OPINION BY: CONRAD

OPINION:

MEMORANDUM DECISION nl ON — DISAL-

LOWANCE OF CLAIM

nl We have jurisdiction to hear thix matter under 28 USC

§$ 1334(b) and the general reference to this Court. This ts a

core matter under 28 USC § 157(b)(2)(B). This Opinion

consututes findings of fact and conclusions of law under F.R.

Civ.P. 52 as made applicable by Rules of Practice and Proce-

dure in Bankruptcy Rule 7082.

FRANCIS G. CONRAD. UNITED STATES BANK-

RUPTCY JUDGE

Owen moves the Court. under Rules of Practice and

Procedure in Bankruptcy Rule 3008. to reconsider the dis-

allowance of its claim and the allowance of the trustee's final

App. 3

accounting. Owen argues that because the Bankruptcy Clerk’s

Office notified it by mail of the ninety (90) day period within

which to file a proof of claim under Bankruptcy Rule

30024c¢)(5). by virtue of Rule 9006(f), Owen had an addition-

al three (3) days within which to file its claim. The trustee

disagrees.

The [*2] facts are straightforward and are not disputed.

Debtor filed its voluntary Chapter 7 petition on March 17,

1987. According to the debtor’s filed schedules, there was no

estate from which any dividend could be paid to creditors. On

March 24, 1987, the Court issued a Notice Order setting the

first meeting of creditors and indicating that it was unnecessary

to file claims at that time. Assets were eventually realized and,

on August 4, 1987, the Bankruptcy Clerk mailed a “Notice to

Creditors and Other Parties in Interest of the Need to File

Claims.” The Clerk’s notice advised creditors they must file

their proofs of claims in this case on or before November 2.

1987.

Owen dated and mailed its proof of claim to the Bank-

ruptcy Clerk on October 30, 1987. The proof of claim was

received and file stamped by the Bankruptcy Clerk’s Office on

November 5, 1987, three days beyond the bar date. Owen

received notice of the filing of the trustee’s report and final

account, and notice of a hearing for approval of same between

November 17, 1988 and November 29, 1988. n2 Included in

the final account was the trustee’s disallowance of Owen’s claim

against Debtor in the amount of $4,479.26 as not being [*3]

timely filed. The trustee’s report and final account were heard

and approved by the Court on December 19, 1988. Neither

Owen, nor counsel for Owen, appeared at the hearing. On

December 27, 1989, Owen filed its “Motion to Reconsider

Disallowance of Claim and Allowance of Final Account.” After

a February 6, 1989 hearing on the motion to reconsider. we

reserved decision.

App. 4

n2 See, Owen’s “Motion to Reconsider Disallowance of

Claim and Allowance of Final Account,” pg. 1.

The Rules of Practice and Procedure in Bankruptcy pro-

vide us with the initial framework for an analysis of this

dispute. Bankruptcy Rule 3002(c) n3 governs the time within

which proofs of claims must be filed in Chapter 7, Chapter 12.

n4 and Chapter 13 cases. The case law in this Circuit

consistently regards the prescribed time period allowed for the

filing of proofs of claims set forth in Rule 3002(c) as a statute

of limitations barring late filing. nS In re Nohle, 93 BR 13, 15

(Bkrtcy.N.D.N.Y. 1988) (citing cases). Accord, Associated

Container Transportation {Australia} Ltd. (In re Black &

Geddes, Inc. ), 58 BR 547, 552-553 (S.D.N.Y. 1984). “This...

filing requirement is a mandatory nondiscretionary [| *4] statute

of limitations, and may not, therefore, be extended by the

courts once it has expired.” Lazar v. Sullivan (In re Sullivan),

36 BR 771. 772 ( Bkrtcy.E.D.N.Y. 1984). See, In re Alstead

Automotive Warehouse. Inc., 16 BR 924 (Bkrtcy.E.D.N.Y.

1982 )

n3 Rules of Practice and Procedure in Bankruptcy Rule

3002(¢) provides

(c) Time tor Filing. In a chapter 7 liquidation or chapter

13 individual’s debt adjustment case, a proof of claim shall be

filed within 90 days after the first date set for the meeting of

creditors called pursuant to § 341(a) of the Code. except as

follows:

(1) On motion of the United States, a state, or

subdivision thereof before the expiration of such period

and for cause shown, the court may extend the time for

filing of a claim by the United States, a state. or subdivi-

sion thereof.

(2) In the interest of justice and if it will not unduly

delay the administration of the case, the court may extend

the time for filing a proof of claim by an infant or

Incompetent person or the representative of either.

App. 5

(3) An unsecured claim which arises in favor of a

person or becomes allowable as a result of a judgment may

be filed within 30 days after the judgment becomes final if

the judgment is for the recovery of money or property from

that person or denies or avoids the person’s interest in

property. If the judgment imposes a liability which is not

satisfied, or a duty which is not performed within such

period or such further time as the court may permit, the

claim shall not be allowed.

(4) Aclaim arising from the rejection of an executory

contract of the debtor may be filed within the time as the

court may direct.

(5) If notice of insufficient assets to pay a dividend

was given to creditors pursuant to Rule 2002(e), and

subsequently the trustee notifies the court that payment of

a dividend appears possible, the clerk shall notify the

creditors of that fact and that they may file proofs of claim

within 90 days after the mailing of the notice.

(6) In a chapter 7 liquidation case, if a surplus

remains after all claims allowed have been paid in full, the

court may grant an extension of time for the filing of claims

against the surplus not filed within the time hereinabove

prescribed. [*5]

n4 Chapter 12 cases are governed by Rule 3002(c) as well,

although the rule does not so specify. See, In re Wharry, 91 BR

31 (Bkrtcy.N.D.Ohio 1988): In re King. 90 BR 155

( Bkrtcy.E.D.N.C. 1988). See also, VLBR 3002.

nS We make a clear distinction between the Rule 3002(c)

provisions for the time within which one must file a proof of

claim in a Chapter 7. 12, or 13 case and Rule 3003(c¢)(3).

Under Rule 3003(c)(3), the Court fixes the tme within which

proofs of claims may be filed in a Chapter |] reorganization

case. Additionally. Rule 3003(¢)(3) provides that “for cause

shown,” the Court may extend the tume within which proofs of

App. 6

claims may be filed. The District Court for the District of

Vermont, in reversing our denial of a Chapter 11 creditor’s

mouon to enlarge tme for filing of a proof of claim under Rule

3003(¢)(3), commented on the statute of limitations analogy:

“Although courts have ascribed statute of limitations

characteristics to the claims bar, the claims bar departs

from a statute of limitations in one essential fashion.

Unlike the finality of a statute of limitations, the

claims bar is subject to statutory and equitable exten-

sion. ... Rule 3003(c)(3) orders lack the finality

contemplated by Bankruptcy Rule 9024 and

F.R.Civ.P. 60(b).” In re STN Enterprises, Inc. Slip

Op., dated July 28, 1988, Billings, D.J. (now Chief

Judge ).

The instant issue, however, is a late-filed Chapter 7 proof

of claim upon which Rule 3003(c¢c)(3) has no application.

Unlike Rule 3003(c)(3), Rule 3002(c) creates a statute of

limitations barring statutory or equitable extension. Rule

3002(c) subsections (1) though [sic] (6) provide specific

exceptions to the 90 day time frame within which to file proofs

of claim, but which are in themselves strictly controlled and

limited by Rule 3002. See, Rules of Practice and Procedure in

Bankruptcy Rule 9006(b)(3). [*6]

In In re Valley Fair Corp., 4 BR 564 (Bkrtcy.S.D.N.Y.

1980). a Chapter XI Act case involving a dispute whether the

period of ume Ordered by the Court for the filing of a claim by

the creditor constitutes a statute of limitations, Judge Babitt

held:

It is no longer a litigable issue, and needs no citation

of abundant authority, that the period fixed by statute

for the filing of claims against the assets of an estate Is

a Statute of limitations, mandatory and inexorable,

peremptory and unyielding even to the exercise of

some equitable power. ... Internal proof that no

deviation was contemplated {by Congress} is found in

{former} Rule 906(b)....

App. 7

Id., at 566-67. (parentheticals supplied for clarity). These

Courts have found that the rule is to be strictly construed

“because the purpose of a claims bar date Is to provide the

debtor and its creditors with finality and to insure the swift

distribution of the bankruptcy estate.” In re Nohle, supra, at 15.

citing. In re Johnson, 84 BR 492, 494 ( Bkrtcy.N.D.Ohio 1988 )

and In re Good News Publishers, Inc.. 33 BR 125, 126

(M.D.Tenn. 1983). We agree. Furthermore, implicit in Rule

3002(c) is the restriction {[*7] that the ninety (90) day time

period for filing proofs of claims cannot be enlarged unless one

of six exceptions are germane. The terms of Rule 3002(c)

permit an enlargement of the time within which to file a proof

of claim only in the presence of certain very narrowly construct-

ed situations such as for the filing of a claim by an infant or

incompetent person, or in the event there remains a surplus

after all other allowed claims have been satisfied.

Rules of Practice and Procedure in Bankruptcy Rule

Y9006(b) governs the Bankruptcy Court's authority to enlarge

time. We are empowered by virtue of Rule 9006(b), upon a

showing of excusable neglect. to extend the time constraints for

undertaking a required act. The express language of that

subsection, however. states that such a showing may not be

made to extend the time period prescribed in Rule 3002(c) for

the filing of Chapter 7. 12. or 13 claims. See, Rules of Practice

and Procedure in Bankruptcy Rule 9006(b)(3). See also, In re

Popular Fruit & Produce. Inc.. 21 BR 185 (Bkrtcy.S.D.N-Y.

T982 ).

We note that inherent in the strict ttme requirements of the

Bankruptcy Rules is the assumption that a creditor has received

nouce. If [*8] notice is given as required by Bankruptcy Rule

2002, save circumstances which fall under the enlargement

provisos of Rule 3002(c), the time prescribed for the filing of a

Rule 3002 proof of claim is quite simply an absolute bar date.

Nouce. or rather, lack thereof. is not an issue here. Owen

~ received notice of a no-assets bankruptcy tiling which subse-

quently realized assets. Owen’s proof of claim is one which we

App. 8

categorize as a Rule 3002(c)(5) proof of claim. Subsection

(5) is technically an exception to the claims bar date mandated

by 3002(c). The enlargement afforded by Rule 3002(c)(5).

however. is. in this Court’s eyes, separate and unique from the

other five subsections [of Rule 3002(c)}. Whereas the other

five subsections may truly modify the 90 day time limit to a

time frame unspecified, subsection (5) provides the original 90

day time frame directed by subsection (c). The distinction

made in subsection (5) is only an adjustment of when the 90

days begin to run.

Subsection (5) cannot realistically be termed an enlarge-

ment provision. The original 90 day time frame is not enlarged

because it never originally existed. In a noticed no-assets case,

either a creditor's common [*9] sense or the Clerk of the

Bankruptcy Court, or both, stall the necessity of filing a claim.

Hence, the 90 day period commencing from the date of the

§ 341(a) meeting. prescribed in Rule 3002(c), never begins to

run at least not in a practical sense. When assets are

realized. a new 90 day period is created under subsection (5).

Accordingly. while we recognize an absolute bar date Is

created under Rule 3002(c). save certain explicit circumstances

permitting enlargement under Rule 3002(c)’s subsections, we

also hold that a Rule 3002(c)(5) proof of claim, by its nature

and because of its nature, does not qualify for departure from

the absolute bar date.

The heart and soul of this contested matter rests then in

our understanding of Rule 9006(f). and whether we perceive It

as applicable to an absolute bar date.

Owen suggests that Bankruptcy Rule 9006(f) n6 affords it

an additional three days within which to file its claim. Owen's

claim was received and file stamped by the Bankruptcy Clerk

three days beyond the bar date. and therefore. according to

Owen. by the power of Rule 9006(f)’s three day extension

App. 9

provision, the claim is not untimely filed. Owen does not

provide us with case law [*10] which might: support its

argument. Owen instead reminds us “the basic premise for

allowance of a reconsideration request is that reconsideration

should be granted ‘according to the equities of the case. *

“Bankruptcy Code § 502()).” (Owen's “Memorandum in Sup-

port of Motion to Reconsider.” pg. 1). We, of course. agree

and have indeed granted its request for reconsideration. But

Owen continues further buttressing with a plea to our

equitable nature which states: “... the disallowance Of [sic]

the Owen claim could only have resulted from a misreading or

misapplication of the law... . {T}he disallowance was improp-

er and amounts to a substantial inequity on this Creditor,

Phere is no reason why Owen ought to be treated differently

than the other general unsecured creditors whose claims have

been allowed.” (Owen's “Memorandum in Support of Motion

to Reconsider.” pp. 1-2).

no Rules of Practice and Procedure in Bankruptcy Rule

YOU6(T) provides:

(f) Additional Time after Service by Mail. When there ts

a right or requirement to do some act or undertake some

proceedings within a prescribed period after service of a notice

or other paper and the notice or paper other than process Is

served by mail. three days shall be added to the prescribed

period. [*I1]

Pondering for a moment this appeal to our equity, n7 we

are disturbed by Owen’s inference that. through a judicial

interest towards evenhanded treatment to creditors. (and which

equitable treatment should encompass. according to Owen,

those holding disallowed claims as well). we may betray an

absolute bar date which gives us no discreuonary power to

enlarge the time for filing a Rule 3002(¢) proof of claim. In re

Nohle. supra: In re Kragness, 82 BR 553. 556 ( Bkrtey.D.Or,

1988). See. In re Owens. 67 BR 418. 423 (Bkrtcey.F.D.Pa

App 10)

1986): In re Whitten. 49 BR 220, 222-23. 13 BCD 42

(Bkrtcy.N.D.Ala. 1985): In re Ryan, 54 BR 105. 106

(Bkrtcy.E.D.Pa. 1985): In re Markey. 33 BR 332. 333-34

(Bkrtcy.N.D.Ohio 1983).

n7 We make clear that Owen does not formally move to

enlarge. or to extend. the bar date, and rightly so such a

motion. here. would clearly fail under Rules 9006(b) and

3002(c). We are not quite sure what it is that Owen asks of us

on this point We believe it has made some leap from

reconsideration based on equities to allowance based on

equities. Accordingly, for sake of completeness, we discuss

briefly the policy this Court employs regarding equitable

*12]

enlargement.

As we have already said. Rule 9006(b) explicitly excludes

Rule 3002 proofs of claims from enlargement except as ex

pressly provided in Rule 3002 itself. The Nohle Court. quoting

In re King. 90 BR 155 (Bkrtcy.£.D.N.C. 1988). sald:

Ihe clear Congressional intent to require filing of

valid proofs of claims within the established time

limits precludes any exceptions based on general

equitable principles. While the effects of the bar date

appear harsh, any other result would undermine the

clear purpose of the Bankruptcy Rules. In re King.

supra. at 158 (citing Maressa v. A.H. Robins Co.. Inc..

839 F.2d 220. 221 (4th Cir. 1988) ).

In re Nohle. supra. 93 BR at 16 (Bkrtcy.N.D.N.Y. 1958)

Perhaps the most glowing application of such policy ts

found in the Third Circuit. In In re Pigott. 684 F.2d 239 (3d

Cir. 1982). even in the face of very compelling circumstances.

the purported jusufication being the disruption of the claimants

business by the nuclear accident at hree-Mile Island. and that.

even if so inclined. “a bankruptey court has no ... equitable

power to extend the deadline for filing proofs o! claim.” In re

196 )

4

Ryan. supra. 34 BR at 106 (Bhrtcy.t OS ig Te hea ©

reversing the District Courts

: . > re e YAY ly

Quotuns In re | (tT i +

I

B R \

()

O

‘\ ( ()

\ | (

R

I O

> | Alleg! | | 13 BR

B V.D.P 88%) ( Bank R

‘ 5 B D In .

BR Bh y.M.D.1 R Tee)

1 4 I ( ' .

BR B [DD.O1 C.M

Citiz B & |

BR It Bki DS. ( R TAYaY,

R j

Chapt | \ 1 BR Y

BCD 4 B y.D.S.( R raay

V BR 3 | NUDLA

App. 12

In In re Robintech. Inc.. 69 BR 663 (Bkrtcy.N.D-Tex.

i987). where the trustee objected to a proof of claim filed two

days beyond the bar date. the Bankruptcy Court held that the

claim would nevertheless be allowed applying the additional

three days provided by Rule 9006(1). In so holding the Court

specifically rejected any distinction between “a deadline on or

before which they were [*1I5] to file claims” and a “requisite

number of days within which to file a claim.” Id.. at 666. The

ruling was appealed to the District Court and upheld. In the

Matter of Robintech. Inc.. 863 F.2d 393 (Sth Cir. 1989). the

Circuit Court of Appeals reversed. holding: “the rule (Rule

9006(f) [sic] ... applies only when the ‘prescribed period’ is

fixed by the date on which the notice ts served.” Id., at 395.

(parentheticals added for clarity) (footnote omitted). The

Circuit Court explained that the three day extension provided

by Rule 9006(f) functions only to compensate for any possible

disparity in the U.S. Postal Service’s delivery of the mailed

notice and the personal delivery of such notice. The Court

stated further that “where. as here. all notices must be by mail.

there is no need for such compensation, as all parties are

theoretically subject to the same delays.” Id.

In a similar ruling directed to a plainuff-appellant’s con-

tention that the 90 day period statutorily mandated for the

filing of a suit Was extended by F.R.Civ.P. 6(e¢). n& the Court of

Appeals for the Third Circuit held:

“{F.R.Civ.P. 60e)} applies only where a time period Is

measured from the date of service [*16] by mail. and

allows a party so served additional time to respond. in

order to account for the ume required for delivery of

the mail.” Mosel v. Hill [sic] Department Store. Inc..

789 F.2d 251. 252 (3d Cir. 1986). (parentheticals

added for clarity). The Mosel Court of Appeals held

that the three day extension was inapplicable to a

Statutory requirement to commence a lawsuit within a

specitied period of time

App. 13

n&8 The Advisory Committee Note to Rule 9006(f) states

that “|sJubdivision (f) is new and ts the same as F.R.Civ.P.

6(e).”

Mosel is analogous to the instant case. Where service ef a

notice does not trigger the running of a prescribed period of

time. but rather, merely establishs | sic] a deadline for the filing

of proofs of claims, and accordingly the ume period Is not

measured from the actual date of service by mail. Rule 9006(1)

can have no application.

An appropriate Order will be entered.

DATED at Rutland. Vermont this 31st day of March. 1989.

—