576 B.R. 761
Bankr. S.D.N.Y.2017Background
- Gillispie moves for leave to pursue claims against General Motors LLC or, alternatively, a post-bar-date proof of claim in the Motors Liquidation Company bankruptcy.
- Sale Order (363 sale) transferred Old GM assets to New GM free and clear of successor liability except for Assumed Liabilities.
- Gillispie was an unknown creditor with no timely proof of claim; notice was by publication, not personal notice.
- Bar Date set November 30, 2009; Gillispie did not file a claim before Bar Date.
- Sale Order prohibits claims against New GM for pre-Closing conduct and retains Old GM liabilities; Gillispie’s claims are based on pre-1991 conduct and are contingent.
- Court denies motion: New GM not liable for Old GM claims; Gillispie did not establish excusable neglect to file post-bar-date claim or a viable due process exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gillispie may sue New GM for pre-petition conduct | Gillispie seeks New GM liability as successor | Sale Order bars successor liability for pre-Closing conduct | Denied: New GM shielded by Sale Order and Sale Agreement |
| Whether Gillispie may file a post-bar-date proof of claim against Old GM | Excusable neglect warrants late filing | No excusable neglect; notice adequate; contingent claims barred | Denied: excusable neglect not established |
| Whether Gillispie’s claims are cognizable as §101(5) claims | Claims arise from pre-petition conduct and are contingent | Contingent pre-petition claims barred by bar date | Denied: claims are contingent and must be filed timely |
| Adequacy of notice to Gillispie as unknown creditor | Publication sufficed due process for unknown creditors | Constructive notice adequate; known creditors require actual notice | Underscored: constructive notice sufficient for unknown creditor |
| Applicability of excusable neglect standard under Pioneer v. Brunswick | Neglect excusable due to post-conviction timeline | Mistake of law not excusable neglect; bar date enforced | Denied: neglect not excusable; no relief |
Key Cases Cited
- In re Chrysler LLC, 576 F.3d 108 (2d Cir. 2009) (affords in rem relief and addresses § 363(f) protections)
- Grumman Olson Industries, Inc., 445 B.R. 243 (Bankr. S.D.N.Y. 2011) (contingent/pre-petition claims fall under fair contemplation test)
- Piper Aircraft Corp., 58 F.3d 1573 (11th Cir. 1995) (accrual concept linked to prepetition relationship for claims)
- Frenville, M. Frenville Co. (3d Cir. 1984) (accrued state law claim theory rejected as too narrow)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process notice standard for known vs unknown creditors)
- Chemetron Corp. v. Jones, 72 F.3d 341 (3d Cir. 1995) (reasonableness of notice to known creditors)
- Stone v. Kmart Corp., 2007 WL 1034959 (M.D. Ala. 2007) (illustrative of contingent/unknown claim treatment under bar dates)
- U.S. v. LTV Corp., 944 F.2d 997 (2d Cir. 1991) (broad definition of claim under bankruptcy)