Nimz Transp., Inc., In re, 73-2099

• Decision Date: 05 November 1974
• Docket Number: No. 73-2099,73-2099
• Citation: 505 F.2d 177
• Parties: In the Matter of NIMZ TRANSPORTATION, INC.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 177

505 F.2d 177

In the Matter of NIMZ TRANSPORTATION, INC.

No. 73-2099.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1974.

Decided Nov. 5, 1974.

Harry E. Clem, Urbana, Ill., William A. Widmer, III, Sherman M. Carmell, Chicago, Ill., for appellant.

Terrence L. Vogel, Edward Litak, Danville, Ill., for Bankrupt.

Before CASTLE, Senior Circuit Judge, and FAIRCHILD and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Petitioner wage claimants appeal from the order of the district court disallowing their claims for unpaid wages and other benefits from the bankrupt, Nimz Transportation, Inc. The court below concluded that the proofs of claim had not been timely filed within the six month period permitted by the Bankruptcy Act, 11 U.S.C. 93(n) (1970). We reverse.

11 U.S.C. 93(n) provides that 'claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed . . ..' The creditors of the bankrupt first met on March 4, 1971, and the six month limitation period therefore expired on September 4, 1971. In April 1973, it was learned for the first time that the referee could not locate the proof of claims and that they were therefore not considered as filed. Upon receiving this information, the attorney for the wage claimants promptly submitted to the referee in bankruptcy a petition to refile the proofs of claim.

At the hearing on the petition, the wage claimants asserted that the proofs of claim were mailed to the clerk of the district court on or about May 20, 1971, and that therefore the claims would have reached the referee well before the expiration of the limitation period on September 4, 1971. n1 Counsel responsible for the filing of the claims detailed the normal mailing procedure used in his law office for outgoing mail, and testified that although his employees could not remember mailing the particular package containing the proofs of claim, he recalled initiating the normal mailing procedures for those claims. The evidence also disclosed that the mailing envelope was correctly directed and bore the proper return address, and that the original cover letter and proofs of claim were not found in a later search of counsel's law office. The bankrupt did not present any evidence, but it was conceded that the clerk's file did not contain the proofs of claim. There was no direct testimony, however, by the clerk that these particular claims were not received, or of the procedures used in processing claims received through the mail. n2 At the close of the hearing, the referee denied the petition to refile the claims, and the district court, affirming the referee's order, concluded that 'depositing a claim in bankruptcy in the mails . . . is not sufficient to constitute 'filing' . . ., and the claim is only 'filed' when it is received by the Clerk of the Court or the Referee.'

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).

Although the record supports the finding of a timely and accurate mailing, we cannot conclude that the presumption of receipt which...