Opinion
Argued and Submitted February 5, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Trusts filed request to file late proofs of claim and debtor moved to disburse funds to trusts. The Ninth Circuit Bankruptcy Appellate Panel denied both debtor's motion and trusts' request. The Court of Appeals held that: (1) notice of bar date complied with the rule governing notice to creditors, and (2) trusts, having waited almost three years after the bar date before requesting permission to file late proofs of claim, failed to establish claim of "excusable neglect."
Affirmed.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Perris, Jones, and Brandt, Judges, Presiding.
Before D.W. NELSON, O'SCANNLAIN, and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Revocable Inter Vivos Trust of Mabel Marie Griffin and Griffin Family Trust
Page 653.
("the Trusts") appeal the decision of the Ninth Circuit Bankruptcy Appellate Panel denying the debtor's motion to disburse funds to the Trusts and denying the Trusts' request to file late proofs of claim. We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm.
The Trusts argue that notice of the bar date did not comport with Rule 7004(b)(3) of the Federal Rules of Bankruptcy Procedure. But Rule 7004 applies to adversary proceedings and contested matters not otherwise governed by the rules. Fed. R. Bankr.P. 7001, 9014. The notice of bar date complied with the rule governing notice to creditors, which states that notice "shall be addressed as such entity or an authorized agent may direct in a filed request; otherwise, to the address shown in the list of creditors or the schedule whichever is filed later." Fed. R. Bankr.P.2002(g). Moreover, there is no question that the Trusts received actual notice of the bar date.
The Trusts' next argue that their failure to file proofs of claim was the result of "excusable neglect" under Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether a party's neglect is "excusable" is an equitable one. Id. at 395, 113 S.Ct. 1489. The Trusts waited almost three years after the bar date before requesting permission to file late proofs of claim. Even then, they failed to give any explanation for their failure to comply with the deadline. There is also some question as to whether the Trusts acted in good faith. The Trusts have failed to show that the bankruptcy judge's finding that "the equities are not with the Griffins" was an abuse of discretion.
AFFIRMED.