Davis v. Brown

USCA1 Opinion

          June 18, 1996

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1007



                                   ROGER S. DAVIS,



                                      Appellant,



                                          v.



                     HAROLD BROWN, D/B/A HAMILTON REALTY COMPANY,



                                      Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            Roger S. Davis and Davis & Rubin, on brief pro se.
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            Robert  Somma, David J.  Reier and  Goldstein &  Manello, P.C., on
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        brief for appellee.





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                 Per Curiam.   Appellant-claimant Roger S. Davis  appeals
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            pro se from the district court's affirmance of the bankruptcy
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            court's denial  of his  motion to reconsider  disallowance of



            his claim against  the appellee-debtor, Harold  Brown, D/B/A/



            Hamilton Realty Co. ("Brown").   "We independently review the



            bankruptcy court's  decision, applying the  clearly erroneous



            standard to its findings  of fact and  de novo review to  its
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            conclusions  of law." Jeffrey  v. Desmond,  70 F.3d  183, 185
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            (1st Cir. 1995).



                 "A  denial  of  receipt   is  insufficient  to  rebut  a



            presumption that proper notice was given, but it does raise a



            factual issue." In re Eagle Bus Mfg., Inc., 62  F.3d 730, 735
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            (5th Cir.  1995); see also In  re Bucknum, 951  F.2d 204, 207
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            (9th Cir. 1991); In  re Longardner & Assocs., Inc.,  855 F.2d
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            455, 459 (7th Cir. 1988), cert. denied, 489 U.S. 1015 (1989);
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            In  re Northeast  Office &  Commercial Properties,  Inc., 178
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            B.R. 915, 918 n.1 (Bankr. D. Mass. 1995); but see In re Yoder
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            Co.,  758  F.2d  1114,  1118  (6th  Cir.  1985)(holding  that
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            testimony of nonreceipt standing alone is sufficient to rebut



            the presumption of receipt).



                 In response to Davis'  denial of receipt, the bankruptcy



            court properly addressed the  factual question of whether the



            notices  were properly  mailed.   The  court  found that  "an



            independent  mailing agency was used, using  the matrix.  The



            address is correct.  . . .  I assure you  that lots of  other







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            people  got those  notices.  . .  ."  On the  basis of  those



            findings, which are not disputed by Davis, it was not clearly



            erroneous for the district court to conclude that the notices



            were properly mailed.  See Eagle Bus Mfg., 62 F.3d  at 735-36
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            ("To determine if  a mailing was accomplished  the courts may



            consider whether the notice  was correctly addressed, whether



            proper postage  was affixed, whether it  was properly mailed,



            and  whether a  proper  certificate of  service was  filed").



            Accordingly, the  bankruptcy court did not err in ruling that



            Davis failed to rebut the presumption that he received notice



            of  the  objections  to his  claim  and  the  hearing on  the



            objections.  There was no due process violation.



                 The  bankruptcy  court's  denial of  Davis'  motion  for



            reconsideration is affirmed.
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