Bokay Co. v. Celotex Corp. (In Re Celotex Corp.)Bokay Co. v. Celotex Corp. (In Re Celotex Corp.)
*495 ORDER
In this consolidated appeal, the Appellants, Bokay Company and Sunset Vine Tower, Ltd., challenge the bankruptcy court’s orders denying their motions to allow the filing of their admittedly untimely proofs of claim against the AppelleeDebtor, the Celotex Corporation.
1
The Appellants contend that the bankruptcy court erred in disallowing their claims because it misapplied the factors promulgated by the United States Supreme Court in
Pioneer Investment Services Company v. Brunswick Associates Limited Partnership,
In
Pioneer,
the Supreme Court undertook an analysis of the meaning of “excusable neglect” as used within the context of Rule 9006(b)(1). Relying on the dictionary definition of the term “neglect,” it observed that “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a matter, or, closer to the point for our purposes, ‘to leave undone or unattended to
especially] through carelessness.’
”
After
Pioneer,
most courts “have held that where a party’s actions are deliberate, the party’s late filing cannot constitute ‘excusable neglect.’ ”
Agribank v. Green,
In this case, the Appellants’ evidentiary presentation before the bankruptcy court established without contradiction that the Appellants through counsel were well aware of the claims bar date of July 29, 1993, but chose not to comply with it be *496 cause from their counsel’s perspective there was insufficient evidence upon which to base a claim against the Appellee. According to the Appellants’ counsel, he discussed the matter of filing a claim with another attorney from his firm approximately one to two months before the expiration of the bar date. As a consequence of this conversation, the attorney “came away with a concern that there was no reasonable factual basis to file a proof of claim on [behalf of] Bokay and Sunset Vine in the Celotex bankruptcy ... [a]nd that to do so might breach the requirements of Rule 11.” 3 He acknowledged, however, that he had never “reviewfed] the document” advising of the bar date, that he did not “undertake a legal analysis of the law on filing [a claim],” that he had never personally researched the concept of a claim under the Federal Bankruptcy Code, 4 and that it was his understanding “that there were rolling bar dates [and] that there would be an opportunity at some point to file a proof of claim in the bankruptcy should we ever find evidence” supporting such a claim. On July 29, 1994, almost one year after the expiration of the bar date, the Appellants filed their proof of claims believing that at that point in time they had sufficient evidence to justify the filing of such claims. 5
In light of these unrefuted facts, the Court concludes that each of the Appellants made a deliberate, conscious decision not to file a timely proof of claim after evaluating the evidentiary basis for such a claim and determining that such a foundation was lacking in substance. Thus, their failure to file was not due to inadvertence, carelessness, mistake, or faultless omission.
See In re LAN Assoc. XIV, L.P.,
Moreover, to the extent that such an analysis would be appropriate, the Court is of the opinion that the bankruptcy court’s findings that allowing the Appellants’ claims would result in prejudice to the Appellee and would adversely impact the judicial proceedings are not clearly erroneous. As the Eleventh Circuit recently explained, “[f]or a factual finding to be clearly ‘erroneous,’ the Court, after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed.”
United States v. Foster,
The bankruptcy court’s orders are therefore affirmed and the Clerk is directed to close this case.
DONE AND ORDERED.
Notes
. The bankruptcy court rendered these orders pursuant to Federal Rule of Civil Procedure 52(c) which allows for the entry of a judgment as a matter of law on partial findings in a non-jury setting once "a party has been fully heard on an issue.” This Court, in reviewing these orders, utilizes the de novo standard as to legal conclusions and the clearly erroneous standard as to factual findings. See In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996).
. Although the bankruptcy court did not directly address this issue, the Appellee vigorously pursued it (without rebuttal from the Appellants) both before the bankruptcy court and this Court. Thus, assuming there is support for this argument in the record, this Court may consider the issue as an alternative basis for affirming the bankruptcy court's orders,
See. e.g., United States v. Blue Cross and Blue Shield of Alabama, Inc.,
. See Fed.R. of Bankr.P. 9011(c) (providing in part for the imposition of sanctions on attorneys if factual contentions contained in a petition, pleading, written motion, or other paper presented to a bankruptcy court lack eviden-tiary support).
. Indeed, even as of the date of his testimony before the bankruptcy court in February of 1998, the Appellants' attorney was still unfamiliar with the meaning of "contingent.” "disputed,” "contested,” and "unliquidated” as those terms related to a claim in bankruptcy. See 11 U.S.C. § 101(5) (defining the meaning of claim under the Federal Bankruptcy Code). According to the attorney, those were "not typically terms” that were used in his area of legal practice.
.Appellant Bokay’s claim was for two million dollars and Appellant Sunset Vine’s claim was for five million dollars.