Pioneer Inv. Services Co., In re, No. 90-6339

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore JONES and NORRIS, Circuit Judges, and JOINER; NATHANIEL R. JONES
Citation943 F.2d 673
Parties, 25 Collier Bankr.Cas.2d 921, 22 Bankr.Ct.Dec. 82, Bankr. L. Rep. P 74,228 In re PIONEER INVESTMENT SERVICES COMPANY, Debtor. BRUNSWICK ASSOCIATES LIMITED PARTNERSHIP, Clinton Associates Limited Partnership, Ft. Oglethorpe Associates Limited Partnership, and West Knoxville Associates Limited Partnership, Plaintiffs-Appellants, v. PIONEER INVESTMENT SERVICES COMPANY, Defendant-Appellee.
Decision Date06 September 1991
Docket NumberNo. 90-6339

Page 673

943 F.2d 673
60 USLW 2250, 25 Collier Bankr.Cas.2d 921,
22 Bankr.Ct.Dec. 82,
Bankr. L. Rep. P 74,228
In re PIONEER INVESTMENT SERVICES COMPANY, Debtor.
BRUNSWICK ASSOCIATES LIMITED PARTNERSHIP, Clinton Associates
Limited Partnership, Ft. Oglethorpe Associates Limited
Partnership, and West Knoxville Associates Limited
Partnership, Plaintiffs-Appellants,
v.
PIONEER INVESTMENT SERVICES COMPANY, Defendant-Appellee.
No. 90-6339.
United States Court of Appeals,
Sixth Circuit.
Argued May 23, 1991.
Decided Sept. 6, 1991.

Page 674

John A. Lucas (argued), Howard E. Frasier, Jr. (briefed), Hunton & Williams, Knoxville, Tenn., for plaintiffs-appellants.

John S. Hicks, Dearborn & Ewing, Nashville, Tenn., Craig J. Donaldson (argued and briefed), Riker, Danzig, Scherer, Hyland & Perretti, Morristown, N.J., for defendant-appellee.

Before JONES and NORRIS, Circuit Judges, and JOINER, Senior District Judge. *

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs-appellants Brunswick Associates Ltd. ("Brunswick"), Clinton Associates Limited Partnership ("Clinton"), Ft. Oglethorpe Associates Limited Partnership ("Ft. Oglethorpe"), and West Knoxville Associates Limited Partnership ("W. Knoxville"), appeal the district court's order affirming the Bankruptcy Court's decision denying their motion for leave to file their proofs of claim out of time. For the reasons that follow, we reverse.

I.

The facts giving rise to this appeal are uncontested. On April 12, 1989, the debtor-appellee Pioneer Investment Services Company ("Pioneer") filed its voluntary petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code. At the same time, Pioneer filed a list of its twenty largest unsecured creditors. This list included Brunswick, Clinton and W. Knoxville. Pioneer asked for and was granted extensions by the bankruptcy court through May 17, 1989, within which to file its statement of affairs and the relevant schedules.

On April 13, 1989, a Notice for a Meeting of Creditors was mailed by the bankruptcy court clerk's office to the parties in interest setting May 5, 1989 as the date for the creditor's meeting required under Section

Page 675

341(a) of the Bankruptcy Code. This notice also fixed August 3, 1989, as the bar date for filing proofs of claim by unsecured creditors. This notice specifically provided as regards the bar date:

You must file a proof of claim if your claim is scheduled as disputed, contingent or unliquidated, is unlisted or you do not agree with the amount. See 11 U.S.C. § 1111 & Bankruptcy rule 3003.

Bar date is August 3, 1989.

J.App. at 175 (quoting notice). The bankruptcy court found that Mark A. Berlin, president of Robriste Enterprises, Inc., general partner of Clinton, W. Knoxville, and Brunswick, and president of Pudding Enterprises, Inc., general partner of Ft. Oglethorpe, received and read the April 13, 1989 notice. The court also found that Berlin is an experienced businessman engaged in real estate and financial management, an attorney licensed to practice in Florida and New York and a certified public accountant.

The bankruptcy court found that Berlin attended and participated in the May 5, 1989 meeting of creditors. The records to the creditor's meeting held on May 19 also indicate that Berlin entered an appearance on behalf of the partnerships.

Prior to the May 19 meeting, Pioneer filed its statement of financial affairs and the relevant schedules. The plaintiffs are not listed on the schedules as originally filed. However, on May 25, Pioneer amended its schedules to include Clinton, W. Knoxville and Brunswick as creditors holding contingent unliquidated, and disputed claims. Ft. Oglethorpe is not listed on the schedules as a creditor.

On June 5, the United States Trustee filed his "Appointment of Committee of Unsecured Creditors" designating Clinton as a member of the creditors' committee. Berlin, representing Clinton, was a member of this committee from its inception.

The plaintiffs collectively retained Marc Richards as their legal counsel. The bankruptcy court found that Richards was retained in mid-June and was an experienced bankruptcy attorney. Berlin's affidavit also suggests that Richards was provided with a complete copy of the bankruptcy file for all the partnerships and that the file contained the above-mentioned notice for filing proofs of claim. The testimony also indicates that Richards advised Berlin that there was no bar date in the file and that therefore, filing proofs of claim was not a matter of urgency.

On August 23, 1989, twenty days after the expiration of the bar date, the plaintiffs filed their proofs of claim. The claims were signed on behalf of Clinton, W. Knoxville, and Brunswick by "Mark A. Berlin, President of Robriste Enterprises, Inc. (General Partner)." The claim filed on behalf of Ft. Oglethorpe is signed "Mark A. Berlin, President Pudding Enterprises, Incorporated (General Partner)." The plaintiffs acknowledge that they filed the proofs of claim after the bar date and that they did not file any petition for an extension of time to file such proofs of claim. However, they claimed below, and claim before this court, that the bar date for filing should have been extended as their failure to timely file was due to "excusable neglect", or, in the alternative, that their claims should be allowed nunc pro tunc to the bar date.

The bankruptcy court denied the plaintiffs' motion to file their claims late, finding no "excusable neglect" within the meaning of the bankruptcy rules and no reason to exercise its equity power to allow the filing of the claims nunc pro tunc. 106 B.R. 510. The plaintiffs then appealed to the district court. While the district court accepted all of the bankruptcy court's factual findings, the court found that the bankruptcy court had applied an overly strict interpretation of "excusable neglect" and the court remanded for reconsideration under a more liberal standard. On remand the bankruptcy court again found that, even under the more liberal interpretation of "excusable neglect" there was no basis for allowing the plaintiffs to file their claims out of time. The plaintiffs again appealed and the district court affirmed. This timely appeal followed.

II.

We review the factual findings of the bankruptcy court under a clearly erroneous

Page 676

standard. Bankr.R. 8013. Whether the court properly found that a proof of claim was filed late due to "excusable neglect" is reviewed for abuse of discretion. In re Yoder Co., 758 F.2d 1114, 1117 (6th Cir.1985).

Section 1111(a) of the Bankruptcy Code requires creditors to file a proof of claim in circumstances where a particular claim is "scheduled as disputed, contingent, or unliquidated." 11 U.S.C. §...

To continue reading

Request your trial
58 practice notes
  • Matter of Holly's, Inc., Bankruptcy Case No. 91-84931. Adv. No. 93-8530.
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Michigan
    • September 30, 1994
    ...ambiguities'" in the notice. Id. at ___, 113 S.Ct. at 1500 (citing the lower court's opinion, In re Pioneer Investment Servs. Co., 943 F.2d 673, 678 (6th Cir.1991)). The Debtor in this case was not relying on any ambiguous court notice. The Debtor itself established the postconfirmation cla......
  • In re Cripps, Case No. GL 10–07809–jtg
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Michigan
    • May 13, 2016
    ...to be decided on case-by-case basis); Brunswick Assocs. Ltd. P'Ship v. Pioneer Invest. Servs. Co. ( In re Pioneer Invest. Servs. Co.) , 943 F.2d 673, 676 (6th Cir.1991), aff'd, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (whether to permit the filing of untimely proof of claim requi......
  • Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, No. 91-1695
    • United States
    • United States Supreme Court
    • March 24, 1993
    ...and accompanied by an explanation of its significance, not inconspicuously placed in a notice regarding a creditors' meeting. P. 1499. 943 F.2d 673 (CA6 1991), WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR,......
  • Peake v. Brownlee, No. 3:02-0656.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • December 18, 2003
    ...Counsel's excusable neglect, the Court finds that this one-day delay did not prejudice Plaintiff. See In re Pioneer Investment Svcs. Co., 943 F.2d 673, 677-79 (6th Cir.1991) (ruling that district court should have accepted creditor's late-filed proof of claim nunc pro tunc because lateness ......
  • Request a trial to view additional results
58 cases
  • Matter of Holly's, Inc., Bankruptcy Case No. 91-84931. Adv. No. 93-8530.
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Michigan
    • September 30, 1994
    ...ambiguities'" in the notice. Id. at ___, 113 S.Ct. at 1500 (citing the lower court's opinion, In re Pioneer Investment Servs. Co., 943 F.2d 673, 678 (6th Cir.1991)). The Debtor in this case was not relying on any ambiguous court notice. The Debtor itself established the postconfirmatio......
  • In re Cripps, Case No. GL 10–07809–jtg
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Michigan
    • May 13, 2016
    ...to be decided on case-by-case basis); Brunswick Assocs. Ltd. P'Ship v. Pioneer Invest. Servs. Co. ( In re Pioneer Invest. Servs. Co.) , 943 F.2d 673, 676 (6th Cir.1991), aff'd, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (whether to permit the filing of untimely proof of claim requi......
  • Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, No. 91-1695
    • United States
    • United States Supreme Court
    • March 24, 1993
    ...and accompanied by an explanation of its significance, not inconspicuously placed in a notice regarding a creditors' meeting. P. 1499. 943 F.2d 673 (CA6 1991), WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR,......
  • Peake v. Brownlee, No. 3:02-0656.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • December 18, 2003
    ...Counsel's excusable neglect, the Court finds that this one-day delay did not prejudice Plaintiff. See In re Pioneer Investment Svcs. Co., 943 F.2d 673, 677-79 (6th Cir.1991) (ruling that district court should have accepted creditor's late-filed proof of claim nunc pro tunc because lateness ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT