Cuna Mutual Insurance Group v. Williams (In Re Williams)Cuna Mutual Insurance Group v. Williams (In Re Williams)
OPINION
OVERVIEW
Crеditor filed a nondisehargeability complaint nearly three months after the deadline for filing. On debtor’s motion to dismiss for untimely filing, creditor alleged it never received actual notice of the bankruptcy filing or the attendant deadline for filing nondis-chargeability complaints. The bankruptcy court determined that the clerk’s certificate of mailing the notice of commencement of the case created a rebuttable presumption of reсeipt and that creditor’s evidence to the contrary was insufficient to overcome the presumption. Creditor appeals dismissal of its cоmplaint. We AFFIRM.
FACTS AND PROCEEDINGS BELOW
Appellant and creditor in this chapter 7 bankruptcy is CUNA Mutual Insurance group. Debtor Angela Williams is alleged to have stolen some $500,000 to $1,000,000 from her employer, appellant’s insured. Having paid its insured, appellant became subrogat-ed to its claim against Williams and commenced a suit аgainst her in state court in January 1994.
Williams filed her chapter 7 bankruptcy on March 22, 1994. She named appellant as a creditor and provided the namе and address of its state court counsel as the creditor’s address on the master mailing matrix. The clerk of the bankruptcy court mailed the notice of commencement of the ease to all creditors listed on the mailing matrix, including appellant, and signed a certificate of mailing to that effect. The case commencement notice stated that the deadline for filing dischargeability complaints was June 27, 1994. Appellant contends that it never received this notice.
In August 1994, the clerk of the bankruptcy court mailed a notice of discharge to the creditors on the mailing matrix. Appellant admits that on August 22, 1994, it received this notice. After receipt, it filed a complaint to determine the dischargeability of its debt. The summons was issued on September 14, 1994, almost three months past the deadline.
Williams moved to dismiss the proceeding based on the untimely filing of the complaint. Appellant defended its late filing on lack of actual or constructive notice of the deadline. The factual issue centered on whether appellant receivеd the clerk’s notice of commencement of ease.
In support of its allegation of non-receipt, appellant submitted the declarations of Alice Ruiz, secretary to attorney Edward Sherman, and of Edward Sherman, the attorney handling CUNA’s state court case against the debtor. In their declarations, they denied receipt of the notice of commencement of case and alleged they had no other actual or cоnstructive notice of the bankruptcy case.
After hearing argument on November 2, 1994, the bankruptcy court determined that the clerk’s certificate оf mailing created a rebuttable presumption that the notice was received and that appellant’s evidence to the contrary was insuffiсient to rebut the presumption. Accordingly, it dismissed the complaint. This appeal followed.
STANDARD OF REVIEW
Findings of fact regarding receipt of notice are reviewed for clear error. Fed. R.Bankr.P. 8013;
In re Bucknum,
ISSUE PRESENTED
Whether the court committed reversible error by finding that appellant received the notice of commencement of ease on the evidence submitted.
DISCUSSION
Proof of mailing creates a rebuttable presumption of its receipt.
In re Bucknum,
Appellant contends its evidеnce consists of more than a simple declaration of non-receipt, and therefore, it overcomes the presumption. Appellant’s evidence consists of two declarations. The declaration of Angela Ruiz, a senior legal secretary, states that the office mail is picked up by a receptionist or a secretary and then routinely sorted and routed to secretaries such as herself, working directly under attorneys. The declaration states that Ruiz is trained to recognize notices and bring them to the attention of her attorney. She declared she “had no recоllection” of receiving notice of Williams’ bankruptcy. The declaration of Edward Sherman, the attorney handling the state court suit, states he “did not reсeive” notice. Additionally, both declarations allege and describe the law firm’s standard business practice of tracking its receipt and distribution of mаil and state that no evidence of receipt was found. This evidence is presented to create an inference that the notice was not received by the firm.
However, the evidence submitted as indicated establishes that either an unidentified receptionist or secretaries received the mail as it first arrived at the firm and distributed it to Ruiz. Thus, no evidence directly contradicts the presumption that the notice did reach the office. This is sufficient to affirm the trial court finding without reaching the issue of whether a declaration of non-receipt coupled with evidence of business practices for tracking receipt of mail can or should rebut the presumption.
The law in this circuit is that denial of receipt does not rebut the presumptiоn.
In re Bucknum,
Appellant has attempted to provide something more than a bare declaration of non-receipt by submitting evidence of its business routine regarding receipt of mail. However, this statement is a variant of the statement of non-receipt, and does not require a conclusion that the presumption has been overcоme. The concurrence in
Ricketts
pointed out that more positive evidence was in order, suggesting as an example, “testimony of a clerk’s office employee that notice was not sent or proof that none of the listed creditors received notice.”
Ricketts
at 498-99. This standard has been approved by the circuit.
Bucknum,
Appellant relies on two cases from other jurisdictions.
In re Yoder Co.,
CONCLUSION
The court made a finding of fact that appellant received thе requisite notice from the clerk. This finding is not clearly erroneous. Although no other notice was given, none was required. Appellant has lost valuable rights, but it was required to file its complaint within time provided. Dismissal was appropriate.
The order on appeal is AFFIRMED.