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In re Williams

filed: August 8, 1995.

IN RE ANGELA WILLIAMS, DEBTOR. CUNA MUTUAL INSURANCE GROUP, APPELLANT,
v.
ANGELA WILLIAMS, APPELLEE.



Appeal from the United States Bankruptcy Court for the Central District of California. BK. No. SB 94-14012, Adv. No. SB 94-2681. Honorable Robert W. Alberts, Bankruptcy Judge, Presiding.

Before: Volinn, Ollason, and Hagan, Bankruptcy Judges.

Author: Volinn

VOLINN, Bankruptcy Judge:

OVERVIEW

Creditor filed a nondischargeability 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 nondischargeability complaints. The bankruptcy court determined that the clerk's certificate of mailing the notice of commencement of the case created a rebuttable presumption of receipt and that creditor's evidence to the contrary was insufficient to overcome the presumption. Creditor appeals dismissal of its complaint. 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 subrogated to its claim against Williams and commenced a suit against 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 name 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 case 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 received the clerk's notice of commencement of case.

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 constructive notice of the bankruptcy case.

After hearing argument on November 2, 1994, the bankruptcy court determined that the clerk's certificate of mailing created a rebuttable presumption that the notice was received and that appellant's evidence to the contrary was insufficient 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, 951 F.2d 204, 206 (9th Cir. 1991); In re De la ...


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