In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1009
IN RE: OUTBOARD MARINE CORPORATION,
Debtor.
APPEAL OF: TRAVIS BOATS & MOTORS,
INCORPORATED, doing business as
TRAVIS BOATING CENTER,
Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 8532—Milton I. Shadur, Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED OCTOBER 18, 2004
____________
Before BAUER, MANION, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Appellant-Creditor Travis Boats
& Motors, Incorporated (“Travis Boats”), appeals from a
bankruptcy court order that disallowed its claim in the
Outboard Marine Corporation (“OMC”) Chapter 7 bank-
ruptcy proceeding for failure to timely file a proof of claim.
The Notice of Claims Bar Date required creditors to mail
their proofs of claim to a designated post office box so as to
be received by the OMC claims agent by November 15,
2 No. 04-1009
2002. Travis Boats faxed its proof of claim to counsel for the
OMC bankruptcy trustee on November 15, 2002. The
trustee objected to the claim as untimely, and the bank-
ruptcy court sustained the objection, disallowing Travis
Boats’ claim. The district court affirmed. We affirm the
bankruptcy court’s conclusion about the timeliness of Travis
Boats’ claim, but we reverse the court’s decision to disallow
the claim.
I. Background
On December 22, 2000, the OMC debtors filed voluntary
petitions for relief under Chapter 11 of the United States
Bankruptcy Code. On August 20, 2001, the cases were con-
verted to a Chapter 7 liquidation, and a trustee was appointed
on August 24, 2001. The trustee subsequently determined
that a distribution to OMC’s general unsecured creditors was
possible, and sought authority from the bankruptcy court to
fix a claims bar date. On July 16, 2002, the bankruptcy
court set a claims bar date of November 15, 2002 (“Bar
Date”), and approved the Notice of Bar Date.
Because the trustee anticipated a significant number of
claims, he sought the bankruptcy court’s permission to ap-
point a claims agent. After receiving such permission, the
trustee charged the agent with cataloguing the proofs of
claim that were received both before and after the agent’s
appointment. To streamline the claims procedure, the claims
agent designated a post office box as the repository for all
proofs of claim.
On or about August 15, 2002, the trustee served the
Notice of Bar Date on all of OMC’s known creditors by first
class mail. In the Notice, the trustee informed OMC’s credi-
tors about the impending liquidation of OMC’s assets, and
warned them that they may not be paid on their claims
against OMC if they failed to timely file the enclosed proof
No. 04-1009 3
of claim form. The Notice also specified the method of trans-
mittal, and emphasized that the claims had to be received
by the bar date:
File our Proof of Claim by sending it to:
OMC Claims Agent
P.O. Box 560
Waukegan, IL 60079-560
To be timely, all Proofs of Claim must be filed so as to
be RECEIVED by the OMC Claims Agent on or before
the Bar Date. Proofs of Claim are deemed filed only
when actually received by the OMC Claims Agent.
Any questions, please call the OMC Claims Agent at
(312) 602-2299.
App. 1 (emphasis in original). The phone number listed on
the Notice automatically connected to a voicemail message
system, where the messages would be retrieved by counsel
for the trustee. The OMC claims agent received more than
5300 proofs of claim asserting claims against OMC in excess
of $3.5 billion.
On the Bar Date, Travis Boats mailed a proof of claim in
the amount of $1,138,216.90 to the OMC claims agent at the
address provided on the Notice. That claim was received by
the OMC claims agent on December 9, 2002, and assigned
Claim No. 5354. Although the Notice of Bar Date did not
provide creditors with a fax number, counsel for Travis Boats
also transmitted by facsimile a duplicate of Claim No. 5354
to counsel for the trustee on the Bar Date. According to
Travis Boats, counsel for Travis Boats was given the fax
number when he called the telephone number provided in
the Notice and asked for the fax number. Upon receipt of
the faxed proof of claim, counsel for trustee mailed it to the
OMC claims agent, who received it on November 21, 2002,
and assigned Claim No. 5293.
4 No. 04-1009
On July 11, 2003, the trustee filed an omnibus objection
to numerous claims, including Claim No. 5293 and Claim
No. 5354. The trustee objected to the Travis Boats claims as
untimely. Travis Boats filed a response to the trustee’s
objection with respect to Claim No. 5293 (the facsimile proof
of claim), but did not oppose the trustee’s objection to Claim
No. 5354 (the proof of claim transmitted by mail). After a
hearing, the bankruptcy court entered an order sustaining
the trustee’s objection to both of Travis Boats’ claims. Travis
Boats then filed a motion for reconsideration of the court’s
order, which the court denied. The bankruptcy court’s deci-
sion was affirmed on appeal to the district court.
II. Discussion
On appeal, Travis Boats argues that it complied with the
Notice of Bar Date by faxing its proof of claim to the OMC
claims agent on the Bar Date. In the alternative, Travis
Boats asserts that its faxed claim should be deemed timely
pursuant to Rule 5005(c) of the Federal Rules of Bankruptcy
Procedure, or that its claim should be characterized as a
timely-filed informal claim. In addition, Travis Boats main-
tains that the courts below erred in disallowing the claim,
instead of subordinating the claim under 11 U.S.C. § 726(a)(3).
Appellate courts, like district courts, review a bankruptcy
court’s legal conclusions de novo, but a bankruptcy court’s
factual findings will be reversed only if clearly erroneous.
See In re Lifschultz Fast Freight, 132 F.3d 339, 343 (7th Cir.
1997). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” Anderson v. Bessemer City,
470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518
(1985).
No. 04-1009 5
A. Timeliness of Travis Boats’ Proof of Claim
Travis Boats first challenges the bankruptcy court’s find-
ing that its proof of claim was untimely, a factual finding
that we review for clear error. Travis Boats argues that it
complied with the Notice of Bar Date by timely faxing its
proof of claim to the OMC claims agent. According to Travis
Boats, transmission of its proof of claim by facsimile was
appropriate because the Notice did not specify an exclusive
method of filing. Travis Boats also maintains that when
counsel for Travis Boats called the telephone number listed
in the Notice, the person that answered the phone provided
him with a fax number and that person did not state that
facsimile transmittal was prohibited.
Travis Boats’ arguments on this issue are unpersuasive.
The Notice of Bar Date only permitted one method of trans-
mittal: claimants were required to mail proofs of claim to a
designated post office box so that they would be received by
the OMC claims agent by November 15, 2002. The Notice did
not provide creditors with a fax number or mention any
other possible method of transmittal. Given the lack of
ambiguity in the Notice, it was unnecessary to explicitly
state that mailing the proof of claim to the designated post
office box was the exclusive method of transmittal.
Rather than following the simple instructions contained
in the Notice, Travis Boats faxed its proof of claim to coun-
sel for the trustee on the Bar Date. Counsel for the trustee
then forwarded the fax to the designated post office box,
where it was received by the claims agent on November 21,
2002, six days after the Bar Date. Under the plain terms of
the Notice of Bar Date, the proof of claim was untimely
because the OMC claims agent did not receive the claim at
the designated post office box on or before the Bar Date.
Travis Boats’ belated telephone call to the OMC claims
agent does nothing to change the result. Presumably on or
just before the Bar Date, Travis Boats called the telephone
6 No. 04-1009
number listed on the Notice, which was automatically con-
nected to a voicemail message system. The caller from
Travis Boats somehow reached a human operator, possibly
by pressing “0” for the operator, and requested the law firm’s
fax number in order to fax its proof of claim to the law firm.
Travis Boats fails to articulate how this telephone in-
teraction undermines the bankruptcy court’s conclusion about
the timeliness of its proof of claim. The court-approved
Notice of Bar Date governed the filing of claims, and the
phone operator at a law firm cannot amend such an order.
We find no error in the bankruptcy court’s conclusion that
Travis Boats’ eleventh-hour fax was not a timely-filed proof
of claim under the terms of the Notice of Bar Date.
B. Bankruptcy Rule 5005(c) and Informal
Proof of Claim
Travis Boats also advances two equitable arguments in an
effort to avoid the effect of its untimely filing. First, Travis
Boats claims the benefit of Rule 5005(c) of the Federal
Rules of Bankruptcy Procedure, which grants the bank-
ruptcy court equitable discretion to backdate papers like a
proof of claim that are “erroneously delivered” to the wrong
official in a bankruptcy proceeding. Second, Travis Boats
asserts that its facsimile transmission amounted to an
informal proof of claim because it stated the existence,
nature, and amount of the claim, and because it evidenced
Travis Boats’ intent to hold OMC liable for its debt. How-
ever, Travis Boats waived these arguments by not raising
them until its motion for reconsideration. See Mungo v.
Taylor, 355 F.3d 969, 978 (7th Cir. 2004) (“Arguments raised
for the first time in connection with a motion for reconsider-
ation . . . are generally deemed to be waived.”)
Even if we were to consider Travis Boats’ arguments about
Rule 5005(c) and the informal proof of claim, we would still
affirm the bankruptcy court. Both arguments are premised
No. 04-1009 7
on equitable considerations, and the equities militate against
Travis Boats in this instance. Perhaps most importantly,
Travis Boats has not offered any convincing justification or
explanation for its untimely filing. Despite having actual
knowledge of the Bar Date and being represented by
counsel at all relevant times, Travis Boats failed to timely
file its proof of claim. As noted by the district court, Travis
Boats’ problem is a “self-inflicted wound,” and it has no one
to blame but itself for this predicament. This is not the case
of an unsophisticated claimant confused by complex terms
in a bankruptcy notice. Indeed, Travis Boats cannot claim
that it did not understand the terms of the Notice because
it also mailed a duplicate copy of its proof of claim to the
designated post office box, though the claim was mailed on the
Bar Date and received after the Bar Date. Moreover,
although Travis Boats’ $1.1 million claim is a small fraction
of the approximately $3.5 billion in claims against OMC, it
is not a de minimis claim that would have no effect on the
payout to the creditors with timely-filed claims. Finally,
making exceptions for claimants that do not comply with the
requirements of the claims procedure may adversely impact
efficient judicial administration in a large bankruptcy like
this one, and the bankruptcy court is in the best position to
weigh these considerations. For all of these reasons, we
reject Travis Boats’ invitation to characterize its proof of
claim as timely.
C. Disallowance of Travis Boats’ Claim
Travis Boats’ final argument is one that will likely make
no practical difference in this bankruptcy proceeding. Under
11 U.S.C. § 726(a)(3), when a proof of claim for an unse-
cured debt is tardily filed in a Chapter 7 proceeding (with
an exception not applicable here), it is subordinated to the
timely-filed unsecured claims and the other claims listed in
11 U.S.C. § 726(a)(1) and (2). In this case, the bankruptcy
8 No. 04-1009
court disallowed Travis Boats’ untimely claim rather than
subordinating it. The district court, presumably relying on
representations by counsel, ruled that the question of
whether Travis Boats’ claim should have been subordinated
rather than disallowed was moot because OMC’s assets will
be exhausted by the timely-filed claims. However, at oral
argument, counsel for the trustee could not offer us any
specific information about OMC’s assets in relation to the
timely-filed claims, and the record does not provide defini-
tive evidence on this issue. As a consequence, though it may
make no practical difference in the end, we reverse the
bankruptcy court’s decision to disallow the claim, and we
hold that Travis Boats’ untimely claim is subordinated to the
timely-filed claims in accordance with 11 U.S.C. § 726(a)(3).
III. Conclusion
For the reasons stated herein, we AFFIRM the bankruptcy
court’s conclusion that Appellant-Creditor’s proof of claim
was untimely. However, we REVERSE the bankruptcy court’s
decision to disallow the proof of claim, and hold that the
claim is subordinated to the timely-filed claims.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-18-04