In re Eagle-Picher Industries, Inc.
Decision Date | 22 November 1994 |
Docket Number | Bankruptcy No. 1-91-00100. |
Citation | 175 BR 943 |
Parties | In re EAGLE-PICHER INDUSTRIES, INC., et al., Debtors. |
Court | U.S. Bankruptcy Court — Southern District of Ohio |
Neil T. Leifer, Boston, MA.
Alan Kleinman, New York City.
Edmund J. Adams, Cincinnati, OH.
DECISION RE OBJECTION TO CLAIM OF CITY OF NEW YORK, ETC.
Debtor, Eagle-Picher Industries, Inc., filed objections to proof of claim # 165291 filed by the New York City Health and Hospitals Corporation; proof of claim # 165292 filed by the City of New York and its affiliated agencies, agents and entities; and proof of claim # 165293, filed by the New York City Housing Authority. Each of the claims is based on a complaint filed in the Supreme Court of New York, seeking relief from debtor as a manufacturer of lead pigments. An amended complaint dated September 3, 1993, accompanies each proof of claim. Debtor's objection is on the basis that the claims were filed late. A telephone pretrial conference on these objections was held at which time the debtor advised that it did not require an evidentiary hearing. Subsequent to the conference, counsel for claimants also informed the court that an evidentiary hearing was not required. The court will therefore decide the issue presented on the basis of the affidavits furnished by the parties.
This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § 157(b).
By order entered July 19, 1991, this court established a bar date for claims such as those here before the court, of October 31, 1991. The present claims were filed November 12, 1993, some two years later. Debtor has objected to the claims because of their late filing. Claimants respond that they were not given effective notice of the bar date or, in the alternative, that the failure to timely file claims was the result of excusable neglect which was not prejudicial to debtor.
Claimants contend on their respective proofs of claim forms that they have "never received any notices from the Bankruptcy Court in this case." Those statements anticipate the present controversy, and lead debtor to address this assertion in its objections to the claims. Debtor points out that claimants were included in its schedules as having a contingent disputed and unliquidated litigation claim. In support of its objections, debtor has supplied affidavits of Edmund J. Adams, Robert J. Janszen, and William D. Oeters, for the purpose of establishing that notice of bar date was sent to all parties listed in debtor's schedules. The "affidavit" of Edmund J. Adams offered by debtor is in fact a Certificate of Service, in which Adams certifies that based upon the information in the affidavits of Robert J. Janszen and William D. Oeters, service was made, inter alia, upon "those parties listed in the Statement of All Liabilities and Assets of Debtor," on August 8, 1991, by U.S. mail.
Janszen and Oeters each filed two affidavits, an original and a supplemental. Claimant has had an opportunity to respond to both. In his first affidavit, Janszen says that he is a vice president of Amity Unlimited, Inc., and that Amity "served copies of the Notice and Proof of Claim Forms upon all parties listed in the Proof of Claim Forms," on August 8, 1991. He says that his firm "received the Notice of General Claims Bar Date for Filing Proofs of Claim and Procedure Therefor (the "Notice"), and Preprinted Informational, General and Executory Contract/Unexpired Lease Proof of Claim Forms (the "Proof of Claim Forms")." Janszen's supplemental affidavit adds detail to the foregoing. That is, he says that after his firm received notices and pre-printed proof of claim forms, employees of his firm "placed each proof of claim, together with a copy of the Notice, into a windowed envelope so that each creditor's name and address as printed on the proof of claim form served as the mailing address for the envelope." He attests that such envelopes were then deposited in the mail.
In his initial affidavit, Oeters says that he is a certified public accountant employed by debtor as assistant to the controller. He says that debtor filed a statement of all liabilities and assets of the debtor with the court. In addition, he says that the court entered an order establishing the pertinent general bar date. He then says that the notice of the bar date and preprinted proof of claim forms were delivered to Amity Unlimited, Inc., Janszen's firm, and that Janszen was instructed to serve notice and proof of claim forms on the parties listed on the preprinted forms. In his supplemental affidavit, Oeters adds that Price Waterhouse served as claims management consultants to debtor. Debtor, together with Price Waterhouse, created an informational data base known as the Claims Information System ("CIS"). The CIS was used to generate Schedule A3 of the debtor's schedules filed with the court. One of the creditors listed on the CIS is: "City of New York, Peter L. Zimroth, 100 Church Street, New York, NY 10007-2601." The CIS was also used to generate the names, addresses and proof of claim forms used to provide notice to creditors of the General Claims Bar Date. Oeters then says that the information on the CIS was copied onto a computer tape. Price Waterhouse verified that the computer tape accurately reflected the data on the CIS. The computer tape was then sent to Bowne Business Communications which used the tape to print the preprinted proof of claim forms. He says that there were multiple quality assurance checks which left him confident that each proof of claim form matched exactly the information on the schedules. The proof of claim forms were sent by Bowne to Amity Unlimited, Inc., for mailing. Oeters then says that debtor and Price Waterhouse recorded on the CIS any and all mail returns. Finally, he says that: "The CIS reflects a proof of claim form and a copy of the Notice were sent to the City in August, 1991, at the address set forth above; that it was not returned as undeliverable; and that there have been no changes to that record since the mailing in August, 1991."
For their part, claimants rely upon the affidavit of Alan H. Kleinman, who says that he is an attorney in the office of Paul A. Crotty, the Corporation Counsel of the City of New York, and that he is the lead attorney for plaintiffs in the several cases pending in the courts of the State of New York against debtor. While Mr. Kleinman has much else to say in his affidavit of an argumentative nature, the basic fact for which the affidavit is offered is to provide evidentiary support to the position that claimants never received actual notice of the bar date. That is, Kleinman says that he was never served with a copy of the order establishing the bar date. He says that the first time that he learned that there was a bar date for non-asbestos claims was when an associate called the bankruptcy court to ascertain the status of the bankruptcy, on October 26, 1993. In that call, Kleinman says, claimants learned that there was a bar date and promptly filed proofs of claim. Kleinman further says that not only did he not receive notice of the bar date, but he says that "no notice was otherwise received by the Office of the Corporation Counsel." He says that that office has a strict procedure for mail not addressed to a particular attorney, and through the normal workings of that procedure, he would have been the one to whom such notice would have been directed.
He also stated that the exhibits furnished by debtor indicate that the mailing address which was used was "Peter L. Zimroth, Esq., 100 Church Street, New York, New York, 10007." He then says that Zimroth had, by August, 1991, not been the city's Corporation Counsel for more than one and a half years. The court notes that the State of New York complaint filed in 1989 prepetition on the present claims shows that it was filed by Peter L. Zimroth, Corporation Counsel of the City of New York. That Zimroth may have been succeeded by another in his official capacity cannot make invalid a notice sent in his name to the correct address.
The affidavits of debtor make a sufficient showing, and we find as a fact, that notice of bar date was mailed to the present claimant. Despite the criticisms of claimant, debtor's affidavits show that a careful course of procedure for noticing creditors of bar date was put in place by debtor, and faithfully adhered to. That debtor cannot produce a copy of the actual notice sent to the present claimant is without moment, for that sort of corroboration would unnecessarily multiply the already swollen files of this debtor. The meticulous course adopted by debtor for its notice procedures is adequate to support its assertion that notice was sent to this creditor. That course included as well procedure for recording return of mail. None addressed to these...
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