IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10781

Summary Calendar

In the Matter of: DLH MASTER LAND HOLDING, L.L.C.; ALLEN CAPITAL

PARTNERS, L.L.C.,

Debtors

----------------------------------------------------------------------

BANK OF AMERICA, N.A.,

Appellant

v.

ALLEN CAPITAL PARTNERS, L.L.C.; THE OFFICIAL COMMITTEE OF

UNSECURED CREDITORS,

Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-757

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

March 13, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-10781

On appeal, Bank of America (“BOA”) challenges the district court’s order

affirming the bankruptcy court’s denial of BOA’s motion to permit late filing of

proof of claim. Upon consideration and review of the record before us, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

On January 25, 2010, DLH Master Land Holdings, L.L.C. (“DLH”) filed a

voluntary petition for relief under Chapter 11 of the Bankruptcy Code. On

January 26, 2010, the bankruptcy court issued a Notice of Chapter 11

Bankruptcy Case, Meeting of Creditors, & Deadlines. This Notice clearly

established, inter alia, the Bar Date of June 2, 2010. 1

On February 4, 2010, BOA received the Notice, but did not notify Snell &

Wilmer of the bankruptcy case until “late May, early June.” On June 1, 2010, 2

Snell & Wilmer filed its notice of appearance, but was directed by BOA to focus

its attention on the non-debtor affiliates as co-debtors on the obligations owed

to BOA. 

On July 14, 2010, forty-two days after the expiration of the Bar Date, BOA

filed its original proof of claim. On November 3, 2010, BOA filed its motion to 3

permit late filing of proof of claim, arguing that the forty-two day delay in filing

its proof of claim resulted from a miscommunication within the firm of its

outside counsel and that it should not be penalized for its counsel’s mistakes. 

BOA also asserts that allowing it to file its late proof of claim would not

prejudice the debtor because the debtor has been aware of BOA’s claim since the

beginning of the bankruptcy proceeding. As representative of the unsecured

creditors, the Official Committee of Unsecured Creditors (“OCUC”) filed its

The Bar Date is the date by which all creditors must file their proof of claim in order 1

to be treated as a creditor.

The California law firm of Snell & Wilmer was hired to represent BOA in the 2

bankruptcy case. 

 BOA later amended its proof of claim reducing the amount of the claim. 3

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objections to BOA’s motion. On January 20, 2011, the bankruptcy court held an

evidentiary hearing to consider BOA’s motion and OCUC’s objections.

On February 10, 2011, the bankruptcy court issued its order denying

BOA’s motion to permit late filing of proof of claim. The bankruptcy court

stated: 

The facts presented to the Court at the hearing on this motion do

not represent the typical “client being penalized for counsel’s

mistake” scenario, but instead show a situation where Bank of

America received multiple notices of the bar date for filing its proof

of claim, and failed to inform counsel of this bar date at the time

that it engaged it to monitor this case. Bank of America had notice

of the bar date well in advance of the deadline; and therefore, there

is inadvertence on the part of the bank, not counsel, which acted

promptly in filing a proof of claim once it discovered the error. As

stated in the objection filed by the Unsecured Creditors’ Committee,

Pioneer would suggest that mere inadvertence is not enough to

meet the excusable neglect standard. Bank of America did not meet

its burden of proof and its motion must be denied.

On February 22, 2011, BOA appealed to the district court. See 28 U.S.C.

§ 158(a)(1). The only issue on appeal to the district court was whether the

bankruptcy court abused its discretion in denying BOA’s motion to permit late

filing of proof of claim. After reviewing the evidence, the district court entered

its order affirming the bankruptcy court’s denial of BOA’s motion.

DISCUSSION

On appeal, BOA claims that the district court erred in affirming the

bankruptcy court’s finding that BOA’s inadvertence did not constitute

“excusable neglect.”

The district court, sitting as an appellate court, reviews a bankruptcy

court’s denial of a motion to permit late filing of proof of claim for an abuse of

discretion. Pioneer Inv. Serv. Co. v. Brunswick Assoc., L.P., 507 U.S. 380, 395

(1993). “We review the decision of a district court, sitting as an appellate court,

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by applying the same standard of review to the bankruptcy court’s findings of

fact and conclusions of law as applied by the district court.” In re Entringer

Bakeries, Inc., 584 F.3d 344, 348 (5th Cir. 2008). 

In order to obtain permission to file a proof of claim after the Bar Date,

the movant has the burden of establishing “excusable neglect” under Federal

Rule of Bankruptcy Procedure 90006(b)(1). When determining whether the

movant has met its burden, we are to consider “all relevant circumstances

surrounding the party’s omission.” Pioneer Inv. Serv. Co., 507 U.S. at 395.

When considering the relevant circumstances surrounding the party’s omission,

the court should look to: (1) the danger of prejudice to the debtor; (2) the length

of the delay and its potential impact on judicial proceedings; (3) the reason for

the delay, including whether it was within the reasonable control of the movant;

and (4) whether the movant acted in good faith. Id. (“Pioneer Test”). In order

to reverse the bankruptcy court’s denial of BOA’s motion to permit late filing of

proof of claim, the bankruptcy court must have based its findings on a clearly

erroneous view of the evidence or the law. Id.

Under the Pioneer test, the bankruptcy court found that BOA’s

inadvertence did not rise to the level of “excusable neglect.” While the

bankruptcy court did not provide a detailed or lengthy analysis, it is evident

that BOA did not meet its burden. The district court made this clear in its

August 2, 2011, order affirming the bankruptcy court. 

Because the district court correctly found that BOA failed to show that the

bankruptcy court abused its discretion in denying its motion to permit late filing

of proof of claim BOA is not entitled to relief. Therefore, the district court’s order

affirming the bankruptcy court’s denial of BOA’s motion to permit late filing is

AFFIRMED.

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