[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16237 MAY 9, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-02797-CV-T-24TBM
BKCY No. 96-00805
In Re: Optical Technologies, Inc.,
a.k.a. Bell Atlantic Capita Corp.,
d.b.a. Lewisport Pharmacy,
d.b.a. Broadway Clinic Pharmacy,
Debtor.
_________________________________________________
FINOVA CAPITAL CORPORATION,
Plaintiff-Appellee,
versus
FLMI, INC.,
d.b.a. Kurtz Pharmacy,
FRANK BYERLY,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 9, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Appellants, Frank Byerly and FLMI, Inc., appeal from an order of the
district court reversing a final judgment of the bankruptcy court. The bankruptcy
court found that Byerly and FLMI are not creditors of Recomm International
Display, Ltd. (“Recomm”), the debtor, and therefore cannot be bound by the
Confirmed Plan of Reorganization and the Confirmation Order. The district court
disagreed, finding that FLMI potentially had two claims against Recomm: (1)
fraud, and (2) breach of contract.
After carefully reviewing the record on appeal and reading the parties’
briefs, we conclude that Byerly and FLMI were not creditors of Recomm because
they did not have a “claim” as that term is defined in 11 U.S.C. § 101(5). The
appellants have never sought any claim against Recomm, in state or federal court,
and have never filed a proof of claim with Recomm. The bankruptcy court’s
finding that the appellants returned the leased equipment and deemed Recomm’s
debt satisfied before Recomm filed for bankruptcy are not clearly erroneous.
Therefore, we reverse the district court’s order dated September 30, 2005.
REVERSED.
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