When a creditor misses the bar date, its claim may be allowed if its failure to file on time was due to "excusable neglect." In re Queen Elizabeth Realty Corp., 586 B.R. 95, 105 (S.D.N.Y. 2018). In Pioneer, the Supreme Court set forth four (non-exhaustive) factors for a court to consider when determining whether there was excusable neglect: "(1) the danger of prejudice; (2) the length of the delay and its potential impact on proceedings; (3) the reason for the delay, including whether it was in the reasonable control of the movant; and (4) whether the movant acted in good faith."
In re Queen Elizabeth Realty Corp., No. 13-12335 (SMB), 2017 WL 1102865, at *3 (Bankr. S.D.N.Y. Mar. 24, 2017) ("The nature of the notice [called for under the Bankruptcy Code] depends on whether the creditor is known or unknown.") aff'd, 586 B.R. 95 (S.D.N.Y. 2018); In re Avaya Inc., 2018 WL 4381524 at * 3 (same). "While actual notice is required if the creditor is a 'known' creditor, constructive notice is sufficient where a creditor is 'unknown.'"
The Court reviews a bankruptcy court's conclusions of law de novo and findings of fact for clear error. In re Charter Commc'ns, Inc. , 691 F.3d 476, 482–83 (2d Cir. 2012) ; In re Queen Elizabeth Realty Corp. , 586 B.R. 95, 104 (S.D.N.Y. 2018) (citing In re Margulies , 566 B.R. 318, 328 (S.D.N.Y. 2017) ). "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses." In re Margulies , 566 B.R. at 329 (alteration and internal quotation marks omitted) (first quoting In re Artha Mgmt., Inc. , 91 F.3d 326, 328 (2d Cir. 1996) ; then quoting W. Milford Shopping Plaza v. The Great Atl. & Pac. Tea Co. (In re Great Atl. & Pac. Tea Co. ), No. 14 Civ. 4170 (NSR), 2015 WL 6395967, at *2 (S.D.N.Y. Oct. 21, 2015) ).
The Court reviews a bankruptcy court's conclusions of law de novo and findings of fact for clear error. In re Charter Commc'ns, Inc., 691 F.3d 476, 482-83 (2d Cir. 2012); In re Queen Elizabeth Realty Corp., 586 B.R. 95, 104 (S.D.N.Y. 2018) (citing In re Margulies, 566 B.R. 318, 328 (S.D.N.Y. 2017)). “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” In re Margulies, 566 B.R. at 329 (alteration and internal quotation marks omitted) (first quoting In re Artha Mgmt., Inc., 91 F.3d 326, 328 (2d Cir. 1996); then quoting W. Milford Shopping Plaza v. The Great Atl. & Pac. Tea Co. (In re Great Atl. & Pac. Tea Co.), No. 14 Civ. 4170 (NSR), 2015 WL 6395967, at *2 (S.D.N.Y. Oct. 21, 2015)).
STANDARD OF REVIEW District courts have jurisdiction to hear appeals from "final judgments, orders, and decrees" of bankruptcy courts, 28 U.S.C. § 158(a), and may modify, affirm, reverse, or remand such judgments, orders, or decrees with instructions for further proceedings, In re Queen Elizabeth Realty Corp. , 586 B.R. 95, 104 (S.D.N.Y. 2018). Judgments disqualifying counsel are considered final for purposes of appellate review.
Where, as here, a party has actual knowledge of a matter, he cannot later complain about the form of notice, since "it is well established that due process is not offended by requiring a person with actual, timely knowledge of an event that may affect a right to exercise due diligence and take necessary steps to preserve that right." GAC Enters., Inc. v. Medaglia , 52 F.3d 451, 455 (2d Cir. 1995) (finding creditor's actual knowledge of bankruptcy petition was constitutionally sufficient notice of deadline for filing objections to discharge); see alsoBongiovanni ex rel. Bongiovanni v. Grubin , 451 F. App'x 53, 54 n.1 (2d Cir. 2011) (summary order) (affirming Medaglia , finding waiver, and stating that notice requirements are same for shareholders and creditors); In re Queen Elizabeth Realty Corp. , 586 B.R. 95, 110 (S.D.N.Y. 2018). Because Lynch, by his own admission, had actual notice of the February 27, 2017 and March 20, 2017 hearings, his failure to participate has waived his challenge to the propriety of notice of the time fixed to file objections to the proposed reorganization plan and of the confirmation hearing thereon.
The rules for what constitutes a final appealable order "are different in bankruptcy" than they are in "ordinary civil litigation" under 28 U.S.C. § 1291. Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1691-92 (2015); accord In re Queen Elizabeth Realty Corp., 586 B.R. 95, 103-05 No. 13 Civ. 1233, 2018 WL 1229837, at *5 (S.D.N.Y. 2018). "[I]n the bankruptcy context, the standard for finality is more flexible."
A party "who independently acquires knowledge of a pending action that will affect its rights cannot sit idly by, let time pass and assert its rights at a later date when it may be impossible or impractical to unwind earlier actions that affect the rights of others." In re Queen Elizabeth Realty Corp. , Case No. 13-12335 (SMB), 2017 WL 1102865, at *5 (Bankr. S.D.N.Y. Mar. 24, 2017), aff'd , 586 B.R. 95 (S.DN.Y. 2018).
(Id. at 26 (citing In re Queen Elizabeth Realty Corp. , No. 13-12335 (SMB), 2017 WL 1102865 (Bankr. S.D.N.Y. Mar. 24, 2017), aff'd , 586 B.R. 95 (S.D.N.Y. 2018) ).) The GUC Trust further highlights that the Andrews Plaintiffs’ delay was not entirely attributable to lack of notice.
Thus, although a known creditor with knowledge of the chapter 11 case who did not receive actual notice is not deemed to know the bar date or be under a duty to discover it, a creditor who has actual knowledge of the bar date ignores it at its peril.In re Queen Elizabeth Realty Corp., Case No. 13-12335 (SMB), 2017 WL 1102865, at *5 (Bankr. S.D.N.Y. Mar. 24, 2017), aff'd, 586 B.R. 95 (S.D.N.Y. 2018). C. Excusable Neglect