* District Judge of the Southern District of Texas, sitting

by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-1894.

In the Matter of Charles Simpson CHRISTOPHER, Debtor.

SEQUA CORPORATION, et al., Appellants,

v.

Charles Simpson CHRISTOPHER, Appellee.

Aug. 15, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before KING and SMITH, Circuit Judges, and KAZEN, * District Judge.

KING, Circuit Judge:

Charles Simpson Christopher was sued by Sequa Corporation and

Chromalloy American Corpora tion in New York state court in early

1989. At the time the suit was filed, the plaintiffs had actual

knowledge that Chr istopher had earlier filed for Chapter 11

bankruptcy. His plan of reorganization was confirmed in August

1989. Christopher later brought an adversary proceeding against

Sequa Corporation and Chrom alloy American Corporation, and the

bankruptcy court he ld that those parties' claims against

Christopher had been discharged upon confirmation of Christopher's

plan of reorganization. Sequa Corporation and Chromalloy American

Corporation now appeal, arguing princi p ally that their claims

against Christopher, which accrued postpetition, cannot be

discharged consistently with the requir ements of the Due Process1 According to Sequa, CAIGI later changed its name to

American Universal Insurance Group.

2 Cla use because they received inadequate notice of Christopher's

bankruptcy proceedings.

I. BACKGROUND

A. F ACTS

Charles Simpson Christopher filed for reorganization under

Chapter 11 of the United States Bankruptcy Code in September 1987.

After Christopher filed his petition, but prior to confirmation of

his plan of reorganization, he joined a group of investors known as

Resolute Holdings, Inc. ("RHI"). This investment group was in the

business of acquiring insurance companies. Among the companies

that RHI was interested in acquiring were Chromalloy American

Insurance Group, Inc. and its insurance subsidiaries (collectively

"CAIGI"). 1 It appears that CAIGI was owned by Sequa Corporation

("Sequa"). The acquisition of CAIGI by RHI was effectuated on May

15, 1988. Sequa concedes that, during the course of the

negotiations concerning CAIGI, Sequa was "made aware" that

Christopher had at some prior date petitioned for bankruptcy relief

under Chapter 11.

RHI's dealings quickly spawned litigation, including a lawsuit

filed by Sequa in New York state court against RHI, Christopher,

and other entities in 1989. According to Sequa's pleadings in that

lawsuit , the following sequence of events took place. The

Commissioner of the Rhode Island Department of Business Regulation

and Insurance ("the Commissioner") issued a Condition al Order on3

May 27, 1988, approving RHI's acquisition of CAIGI on certain

conditions. Sequa received $7,000,000 from RHI on July 15, 1988;

unbeknownst to Sequa, however, RHI had violated the Commissioner's

Conditional Order by extracting the $7,000,000 from certain of the

subsidiar y insurance companies within CAIGI. In September 1988,

the Commissioner was appointed temporary receiver of those same

CAIGI companies, and in a series of meetings soon thereafter the

Commissioner threatened to void the transaction and force the

parties to unwind the dea l unless Sequa immediately restored the

$ 7,000,000 to the source companies. Sequa complied and returned

the money. Sequa and its wholly-owned subsidiary Chromalloy

American Corporation (collectively, the "Sequa Group" or the

"Group") then filed the lawsuit in New York against RHI,

Christopher, and related entities and persons; the record contains

an amended complaint from that lawsuit dated January 18, 1989,

which includes counts for breach of contract, unjust enrichment,

tortious interference with contractual relations, and fraudulent

misrepresentation.

Christopher's reorganization plan was confirmed on August 24,

1989, in the midst of the New York litigation instigated by the

Sequa Group. Because the claims of Sequa and Chromalloy American

Corporation arose after commencement of Christopher's bankruptcy

case, neither entity was li sted or required to be listed as a

creditor in Christopher's bankruptcy proceedings, and they never

filed any papers or otherwise participated in those proceedings.

B. P ROCEDURAL H ISTORY4

On July 24, 1991, Christopher filed an adversary proceeding in

the United States Bankruptcy Court for t he Northern District of

T exas seeking a declaratory judgment that certain claims against

him had been discharged by the confirmation of his plan of

reorganiz ation. Those claims included the claims that the Sequa

Group was pursuing in its New York litigation, as well as numerous

other claims agai nst Christopher by other parties not now before

this court. On September 23, 1992, the bankruptcy court presided

over trial on the merits of Christopher's complaint and the Group's

defenses. The bankruptcy court held that the Group's claims had

been discharged. C hristopher v. American Universal Ins. G roup,

Inc. (In re Christopher), 148 B.R. 832 (Bankr.N.D.Tex.1992). The

Group appealed to the district court, which affirmed the bankruptcy

court's judgment without additional findings of fact or conclusions

of law. This appeal ensued.

C. I SSUES

The Sequa Group raises severa l arguments for reversal. It

contends that the discharge of its claims against Christopher was

erroneous because (1) the discharge of its claims would violate due

process as a result of the insufficient notice it received, (2)

Christoph er suffers from "unclean hands," (3) Christopher should

have been equitably estopped from claiming discharge, and (4)

Christopher waived his right to claim discharge.

II. STANDARD OF REVIEW

This court reviews findings of facts by the bankruptcy court

under the clearly erroneous standard and decides issues of law de5

novo. Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307

(5th Cir.1994); H aber Oil Co. v. Swinehart (In re Haber Oil Co.),

12 F.3d 426, 434 (5th Cir.1 994). A finding of fact is clearly

erroneous when, although there is eno ugh evidence to support it,

the reviewing court is left with a firm and definite conviction

that a mistake has been committed. U nited States v. United States

Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746

(1948); I n re Henderson, 18 F.3d at 1307. If the lower court's

account of the evidence is plausible in light of the record viewed

in its e ntirety, the court of appeals may not reverse it even

though convinced that, had it been sitting as the trier of fact, it

would have weighed the evidence differently. Anderson v. City of

Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84

L.Ed.2d 518 (1985).

III. ANALYSIS

A. D UE P ROCESS

The Sequa Group's first due process argument is t hat the

bankruptcy cour t erred in discharging its postpetition claims

against Christopher because the Group was not given formal notice

of the bankru ptcy proceedings involving Christopher. In the

alternative, the Sequa Group argues that, even if it was not

entitled to formal notice, the actual notice of the bankruptcy

proceedings received by the Group was insufficient to satisfy due

process and so the confirmed plan cannot be res judicata as to the

Group. We address the Group's second argument first, after a brief

review of the law of bankruptcy applicable to the instant case.6 1. Legal Background

Christopher recei ved a discharge of indebtedness under

Chapter 11 of the Bankruptcy Code, 11 U. S.C. § 1141(d). This

discharge is broader than that obtained in a Chapter 7 bankruptcy;

while a Chapter 7 discharge deals only with debts incurred prior to

the filing of the petition, § 1141(d) discharges the debtor from

any debt (with certain exceptions) that arose before the date of

confirmation. 3 D AVID G. E PSTEIN ET AL

., B ANKRUPTCY § 10-30 (1992).

Under § 1141(d)(2), confirmation of a plan of reorganization

does not discharge an individual debtor from any debt excepted from

discharge under § 523 of the Code. The provision of § 523 that has

been the focus of all attention in the instant case is § 523(a)(3),

which excepts from the discharge of an individual debtor any debt

(3) neither listed nor scheduled under section 521(1) of

this title, with the nam e, if known to the debtor, of the

creditor to whom such debt is owed, in time to permit—

(A) if such debt is not of a kind specified in

paragraph (2), (4) or (6) of this subse ction, timely

filing of a proof of claim, unless such creditor had

notice or actual knowledge of the case in time for such

timely filing; or

(B) if such debt is of a kind specified in paragraph

(2), (4) or (6) of this subsection, timely filing of a

proof of claim and timely request for a determination of

dischargeability of such debt under one of such

paragraphs, unless such creditor had notice or actual

knowledge of the case in time for such timely filing and

request[.]

The bankruptcy court relied on § 523(a)(3) in concluding that the

Sequa Group's claims were discharged despite the Group's omission

from the schedule of creditors because the Group had actual

knowle dge of Christopher's bankruptcy. It is not, however,7

ent irely clear that this is a correct reading of § 523; as the

Group points out, § 523(a)(3) appears to be limited to debts owed

to "creditors," which is a defined term including only prepetition

claimants. 11 U.S.C. § 101(10). This is not critical to our

decision in t he instant case; even if § 523(a)(3) is wholly

inapplicable to the Group's claims, § 1141(d) continues to mandate

that those claims are discharged if they existed prior to the date

of confirmation of the plan unless some other provisi on of § 523

applies to except those claims from discharge. The Group makes no

argument based on § 523, premising its entire argument on due

process.

The focus of the Group's due process argument is the Code's

failure to require any specific f orm of notice of bankruptcy

proceedings to persons holding claims that arise postpetition. All

parties agree with the bankruptcy court's holding that nothing in

the Bankruptcy Code or Bankruptcy Rules requires a Chapter 11

petitioner to serve notice of the Chapter 11 proceedings on parties

with whom the petitioner deals postpetition. 148 B.R. at 835.

Contrary to the Group's suggestion at oral argument, we concur with

the bankruptcy judge's view that the lack of such a notice

requirement in the Code was probably not the result of

congressional oversight. The simple fact is that parties who deal

with a bankrupt p ostpetition are frequently entitled to priority

under §§ 503 and 507 of the Code, g iving them an added level of

protection as compared to the prepetition claimants. Additionally,

t he plan of reorganization cannot be confirmed under §8

1129(a)(9)(A) unless the plan provides for the payment in cash and

in full of persons holding "claims" for administrative expenses

under §§ 503 a nd 507. Thus, persons holding claims against the

debtor that arise postpetition are in some respects better able to

protect their interests than are prepetition claimants. Although

the Group makes some attempt to characterize itsel f as an

administrative "creditor," it does not make any argument based on

the plan's failure to treat it as such, nor does it seek to unravel

the plan almost five years after confirmation. The Group seeks

only to be allowed to proceed with its lawsuit against

Christopher's postconfirmation assets—in other words, to avoid the

discharge of its claim s against Christopher arising between

petition and confirmation.

2. Actual Notice

The Sequa Group argues that the bankruptcy court erred in

determining that it received sufficient notice of Chri stopher's

Chapter 11 bankruptcy proceeding to satisfy the requirements of due

process. The general rule is that due process requires

notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections. The

notice must be of such nature as reasonably to convey the

required information, and it must afford a reasonable time for

those interested to make their appearance.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70

S.Ct. 652, 657, 94 L.Ed. 865 (1950) (citations omitted). The Court

applied Mullane in the bankruptcy context in Bank of Marin v.

England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966), and we

recently did so in the case of Grossie v. Sam (In re Sam), 894 F.2d9

778, 781 (5th Cir.1990). S ee generally 5 C OLLIE R ON B ANKRUPTCY ¶

1141.01[4][b] (Lawrence P. King ed., 15th ed. 1994); Nicholas A.

Franke, The Code and the Constitution: Fifth Amendment Limits on

the Debtor's Discharge in Bankruptcy, 17 P EPP .L.R EV . 853 (1990).

We briefly recount the bankruptcy court's findi ngs of fact

indicating that the Sequa Group had actual notice of Christopher's

ongoing bankruptcy proceedings when its claims arose. First,

Christopher's bankruptcy was discussed at a meeting d uring early

RHI-Sequa negotiations regarding the purchase of CAIGI by RHI, and

the court found that the parties specifically discussed the

propriety of Christop her's participation in RHI because of his

bankruptcy. 148 B.R. at 834. The vice-president of Chromalloy

American Insurance Group, Inc. also wrote a letter to RHI

concerning th e prospective purchase; the letter referred to the

fact that Christopher's bankruptcy had been discu ssed with the

Rhode Island Insurance Commissioner and requested RHI to amend its

filings regarding its purchase offer to include formal disclosure

of Christopher's bankruptcy. I d. In addition to the facts

regarding notice cited by the bankruptcy court, Christopher directs

our attention to a document in the re cord which is a letter from

the Group's attorneys to the judge presiding over the New York

lawsuit dated April 1989 in which Christopher's Chapter 11

bankruptcy is specifically referred to.

The Sequa Group does not c hallenge the bankruptcy court's

factual findings, but contends only that the court erred in holding

t hat the notice given to the Group was constitutionally adequ ate10

under Mullane. The Group highlights the facts that it had no

claims agains t Christopher at the time it received notice of

C hristopher's bankruptcy and that once the Group's claims arose,

Christopher never notified the Group of important dates such as the

deadline for filing objections to the plan of reorganization or the

date of the hearing on confirmation of the plan.

The Group cites a number of cases in support of its position,

beginning with City of New York v. New York, New Haven & Hartford

R.R., 344 U.S. 293, 73 S. Ct. 299, 97 L.Ed. 333 (1953), which was

decided under the Bankruptcy Act of 1898. In that case, the City

of New York owned liens on real estate owned by the railroad, and

the railroad subsequently went through reorganization under § 77 of

the Bankruptcy Act. I d. at 294, 73 S.Ct. at 300. The court set a

deadline for the filing of claims, but only the railroad's mortgage

trustees and creditors who had already appeared in court received

notice of this order by mail. I d. Other creditors, such as the

City of New York, were served by newspaper publication. Id. The

Court considered whether the City's liens were discharged by the

final decree in the reorganization and concluded that they were not

because the judge who presided over the bankruptcy did not comply

with § 77(c)(8) of the Bankruptcy Act, which required the judge to

"cause reasonable notice of the period in which claims may be

filed, ... by publication or otherwise." Id. at 296, 73 S.Ct. at

301. The Court held that publication was not "reasonable notice"

to the City of New York under the circumstances of the case and

that the City's knowledge of the reorganization did not impose a11

duty of inquiry on the City in order to protect its rights. I d. at

296-97, 73 S.Ct. at 301. As the Court remarked, "even creditors

who have knowledge of a reorganization have a right to assume that

the statutory "reasonable notice' will be given them before their

claims are forever barred." Id. at 297, 73 S.Ct. at 301.

Although City of New York is plainly similar to the instant

case, it may be distinguished by the fact, which we observed in In

re Sam, 894 F.2d at 781, that the Court apparently decided the case

on statutory rather than constitutional grounds. S ee In re Intaco

Puerto Rico, 494 F.2d 94 (1st Cir.1974) (applying City of New York

to a similar case arising under Chapter X of the Bankruptcy Act as

a matter of statutory interpretation); In re Harbor Tank Storage

Co., 385 F.2d 111 (3d Cir.1967) (same). The Tenth Circuit,

however, has relied in part on City of New York in holding that a

due process violation had occurred on facts similar to the instant

case. In R eliable El ec. Co. v. Olson Constr. Co., 726 F.2d 620,

621 (10th Cir.1984), a construction subcontractor ("Reliable")

withdrew from a project and filed a petition under Chapter 11

shortly thereafter. The general contractor ("Olson") was told in

a telephone conversation with Reliable's attorney that the

reorganization proceedings had been instituted, but he received no

further information about the bankruptcy proceedings. I d.

Reliable then sued Olson in state court, and Olson removed to

federal bankruptcy court and counterclaimed against Reliable. I d.

Olson ult imately prevailed on both Reliable's claim and its own

claim, but not until after Reliable's plan was confirmed. The12

bankruptcy court denied Reliable's motion requesting the court to

find that Olson's claim had been discharged when the plan was

confirmed. I d. at 621-22. The Tenth Circuit affirmed, holding

that "the discharge of a [prepetition] claim withou t reasonable

notice of the confirmation hearing is violative of the fifth

amendment to the United States Constitution." Id. at 623.

The Tenth Circuit extended its holding in Reliable Elec. Co.

to cases i nvolving creditors whose claims arise postpetition in

Dalton Dev. Project #1 v. Unsecured Creditors Comm. (In re Unioil),

948 F.2d 678 (10th Cir.1991). In that case, the debtor engaged in

unauthorized postpetition transfe rs of interests in some oil and

gas properties to several partnerships, including Dalton

Development Project # 1 ("Dalton"). I d. at 679-80. The transfers

were not discovered until two years after the plan of

reorganization was confirmed, and the bankruptcy court granted the

motion of the creditors committee to set aside the transfers. I d.

at 680. The court also held that any claim against the debtor held

by Dalton was barred by the confirmation of the reorganization

plan. I d. at 681. The Tenth Circuit reversed this holding,

concluding that Reliable Elec. Co. places the burden on the debtor

to provide formal notice of the confirmation hearing to a known

credito r if that creditor's claims are to be discharged in

bankruptcy. Id. at 683.

We have concluded that it does not offend due process to view

actual notice of a debtor's bankruptcy to a prepetition creditor as

placing a burden on the creditor to come forward with his claim.13

In In re Sam, we considered a case in which the claimant filed a §

1983 lawsuit against a police officer several months after the

officer had filed for bankruptcy. I n re Sam, 894 F.2d at 778. The

claimant was not listed as a creditor, and the first time he heard

of the de btor's bankruptcy was eighteen days before the deadline

for filing claims in the bankruptcy court, when the claimant's

attorney received a notice of the automatic stay identifying the

bankruptcy court, case number, and the names of the debtor and his

attorney. I d. at 778-79. Although the claimant did not receive

notice of the actual bar date until after it had passed, we

affirmed the lower courts' holdings that the claim was time-barred.

Id. Rejecting the claimant's due process argument, we stated that

when the claimant received the notice of the automatic stay "he was

on notice that his section 1983 claim against Sam was affected by

Sam's bankruptcy, and he had eighteen days to inquire as to the bar

date and file his com plaint or a motion to extend the bar date."

Id. at 781. "[B]ecause that notice apprised him of the pendency of

the action and was timely eno ugh to afford him an opportunity to

present his objections, it satisfies constitutional procedural due

process requirements." Id. at 782.

The Sequa Group argues that In re Sam is distinguishable from

the instant case and that dicta in In re Sam actually supports the

Group's position. As we have already noted, the I n re Sam court

did not find City of New York controlling because that case

"apparent ly was decided on statutory rather than constitutional

grounds." Id. at 781. The In re Sam court went on, as the Group14

points out, to distinguish City of New York on the facts; the In

re Sam court opined that the Court in City of New York required

that creditors receive actual notice of the specific bar date

because under the Bankruptcy Act the setting of this date was

discretionary with the judge. Under modern Bankruptcy Rule

4007(c), the In re Sam court observed, the bar date is established

as sixty days fro m the first date set for a meeting of creditors

under § 341(a). I d. at 781. The Sequa Group argues that the I n re

Sam court thus implicitly recognized that actual notice of

bankruptcy proceedings in general is not constitutionally

sufficien t if the pertinent date is one that is set at the

discretion of the debtor or the court, such as the date of the

hearing on confirmation of the plan of reorganization.

Although the court's opinion in In re Sam does contain dicta

that arguably support the Sequa Group's position, it is the holding

of the case upon whic h we must focus our attention. The precise

question in that case was whether the notice received by the

claimant—a notice of automatic stay, received eighteen days before

the bar date, that did not even recite the bar date—was sufficient

to satisfy due process. We concluded that it was constitutionally

sufficient for two reasons: (1) the notice apprised the claimant

of the pendency of the action, and (2) it was sufficiently timely

to permit the claimant to present his objec tions. I d. at 782.

This seems to us to be consistent with language in Bank of Marin,

in which the Court considered whether a trustee in bankruptcy could

hold a bank liable for honoring checks drawn by a depositor before15

the depositor filed for bankruptcy but presented for payment after

the filing for bankruptcy if the bank had no notice of the filing.

Bank of Marin, 385 U.S. at 100, 87 S.Ct. at 275-76. The Court

concluded that the bank could not be held liable consistently with

due process, and stated that "[t]he kind of notice required is one

"reasonably calculated, under all the circumstances, to apprise the

interested parties of the pendency of the action.' " Id. at 102,

87 S.Ct. at 277 (quoting Mullan e, 339 U.S. at 314, 70 S.Ct. at

657).

The In re Sam analysis is also consistent with that used b y

the Eleventh Circuit in Alton v. Byrd (In re Alton), 837 F.2d 457

(11th Cir.1988) (per curiam). In that case, Alton filed under

Chapter 11 after Byrd had filed suit against Alton in federal

court. Id. at 458. Although Byrd was never listed as a creditor

in the bankruptcy proceedings, Byrd's counsel did promptly receive

a copy of the notice of Alton's Chapter 11 proceeding and automatic

stay. I d. The notice did not indicate the date of the Chapter 11

filing or the date set for the creditors' meeting, i d.;

nevertheless, the court held that due process was not offended by

the bankruptcy court's denial of Byrd's late-filed application to

extend time to file a complaint with the bankruptcy court, id. at

460. As the court succinctly stated, "[a]t a time when he could

have protected himself, cre d itor Byrd received actual written

notice of the bankruptcy proceeding, a notice adequate "to apprise

[him] of the pendency of the action and afford [him] an opportunity

to present [his] objections.' " I d. at 460-61 (quoting Mullane,16

399 U.S. at 314, 70 S.Ct. at 2142-43).

From the foregoing, we conclude that the first prong of the

due process analysis from In re Sam —notice apprising the claimant

of the pendency of the action affecting his rights—has been

satisfied in the instant case. Proceeding to the second prong of

the analysis, which is whether the notice was sufficiently timely,

we conclude that this question must also be answered in the

affirmative. As we have seen, the Group had notice of

Christopher's bankruptcy even before its claims against Christopher

arose. As we have already explained in part III.A.1, s upra,

claimants whose claims arise post petition are amply protected by

several features of the Bankruptcy Code. As even the Group

recognizes, a strict requirement of forma l notice to all

postpetition claimants could be extremely onerous, especially for

large debtors. Thus, given the actual notice of Christopher's

bankruptcy proceeding possessed by the Group, we conclude that due

process is not offended in this case by requiring postpetition

claimants in the Group's position to come forward and protect their

enhanced rights under the Code or else lose their rights through

the sweeping discharge of Chapter 11. This is not a case like

Pettibone Corp. v. Payne (In re Pettibone Corp.), 151 B.R. 166

(Bankr.N.D.Ill.1993), in which a Chapter 11 petitioner tortiously

injures someone just prior to plan confirmation and the tort victim

does not learn of the bankruptcy until after confirmation, and we

accordingly express no op inion regarding the requirements of due

process in such a case.17

In sum, we conclude that the actual notice of Christopher's

bankruptcy possessed by the Sequa Group was sufficient to satisfy

t he dictates of due process and M ullane. We decline the Group's

invitation to use the Due Process Clause to fill what appears to us

to be an intentional and generally unproblematic gap in the Code's

notice provisions.

3. Formal Notice

This argument need not detain us in light of the foregoing.

The Sequa Group contends that due process entitled it to formal

notice of the date of the hearing on confirmation of Christopher's

plan of reorganization. We have already seen that due process

requi res only notice that is both adequate to apprise a party of

the pendency of an action affecting its rights and timely enough to

allow the party to present its objections. I n re Sam, 894 F.2d at

782. In I n re Sam we held that notice of an automatic stay

eighteen days before a deadline for filing claims was sufficient

notice to satisfy due process even though the notice of the stay

did not indicate the deadline date. I d. at 781-82. Formal notice

of the deadline was not required in In re Sam; neither was formal

notice of Christopher's confirmation hearing required by the Due

Process Clause in the instant case.

B. E QUITABLE A RGUMENTS

The Sequa Group next presents three arguments premised on the

equitable concepts of unclean hands, equitable estopp el, and

waiver.

1. Unclean Hands18

In the Group's view, "[t]here is scarcely a debtor less

worthy of the equitable discharge than C hristopher." The Group

c ontends that Christopher cannot take advantage of the equitable

remedy of discharge because he suffers from unclean hands for the

following reasons: (1) Christopher failed to serve the Group with

notice of any proceedings in his bankruptcy case; (2) Christopher

deliberately concealed the Group's claims against him f rom the

bankruptcy court and his creditors; (3) Christopher failed to

mention in the New York l itigation with the Sequa Group that the

confirmation of his plan of reorganization wo uld discharge the

Group's claims against him; (4) Christopher actively defended the

New York litigation while secretly seeking discharge of the Group's

claims; and (5) Christopher retained counsel in the New York

litigation without prior bankruptcy court approval. The bankruptcy

court rejected this argumen t, observing that nothing in the

Bankruptcy Code or Rules requires a debtor-in-possession to serve

notice of Chapter 11 proceedings upon parties with whom it deals

postpetition an d that the Sequa Group had actual knowledge of

Christopher's bankruptcy and was on notice of the ramifications of

nonparticipation. 148 B.R. at 836.

The Group relies in part on dicta in Doucette v. Pannell (In

re Pannell), 136 B.R. 430 (N.D.Tex.), aff'd, 974 F.2d 172 (5th

Cir.1992) (un published opinion). In that case, Doucette was

pursuing fraud claims in state court against the debtor, Pannell,

at the same time Pannell was going through Chapter 11 bankruptcy.

Id. at 432-33. Although Doucette somehow had notice of the Chapter19

11 proceedings, i d. at 432 n. 2, Doucette did not receive notice

when Pannell's case was converted to a Chapter 7 bankruptcy, nor

did Doucette receive notice of the new bar dates for filing claims

and dischargeabili t y complaints then established, id. at 433.

Doucette obtained a judgm ent against Pannell in the state court

after the bar dates had passed and filed a late proof of claim and

complaint for exception to discharge in the bankruptcy court, both

of which t he bankruptcy court dismissed for lateness. I d. The

district court reversed the bankruptcy court on statutory grounds,

holding that Doucette did not have "notice or actual knowledge," 11

U.S.C. § 523(a)(3)(B), of the relevant case—the Chapter 7 case—in

time to take appropriate action. In re Pannell, 136 B.R. at 436.

The Sequa Group places great stock on the court's remark that

"[t]here coul d hardly be a more blatant case of a debtor abusing

the judicial system in an attempt to defraud a cr editor," i d. at

437, but this dictum does not warrant reversal in the instant case,

in which the Group had actual knowledge of the debtor's Chapter 11

bankruptcy long before the Group's claim even arose.

The Sequa Group also attempts to rely on cases from various

bankruptcy courts discussing the fiduciary duties of a

debtor-in-possession towards his cred itors. E .g., Whyte v.

Williams (In re Williams), 152 B.R. 123, 127 (Bankr.N.D.Tex.1992).

None of the cases cited by the Group persuades us that the

bankruptcy court erre d in concluding on these facts that

Christopher did not have unclean hands. The Group had knowledge of

Christopher's bankruptcy, and Christopher apparently violated no20

statute or rule in failing to provide more information to the Group

than he did. We find no error in the bankruptcy court's

conclusion.

2. Equitable Estoppel

The Sequa Group next relies on the doctrine of equitable

estoppel to prevent Christopher from asserting his Chapter 11

discharge against the Group's claims. Equitable estoppel requires

(1) a material misrepresentation or concealment (2) made with

actual or constructive knowledge of the true facts (3) with the

intent that the misrepresentation or concealment be acted upon (4)

b y a third party without knowledge or means of knowledge o f the

true facts (5) who detrimentally relies or acts on the

misrep resentation or concealment. N eiman-Marcus Group, Inc. v.

Dworkin, 919 F.2d 368, 371 n. 4 (5th Cir.19 90). The bankruptcy

court rejected this argument because Christopher made no material

misrepresentation or concealment regarding his bankruptcy

proceeding. 148 B.R. at 837.

We reject the argument that Chri stopher "misrepresented" or

"concealed" his bankruptcy case from the Group based on a theory

that he had a duty to notify the group of such matters as the bar

date for filing proofs of claims, the time for filing acceptances

or rejections of the plan, or the hearing on confirmation of the

plan. As the parties have agreed, the Bankruptcy Code and Rules

impose no such duty on debtors with respect to parties dealt with

postpetition. The Due Process Clause does impose certain notice

obligations on debtors who file for bankruptcy, but we have already21

concluded that those obligations were met in the instant case. The

bankr uptcy court did not clearly err in determining that

Christopher was not guilty of any misrepresentation or concealment.

We thus conclude that the Group is not entitled to relief

under the equitable estoppel doctrine.

3. Waiver

Finally the Sequa Group asserts that Christopher waived his

right to clai m discharge from any debt owed the Group on its

claims. Waiver may be established by showing that a party actually

intended to relinquish a known right or privilege. H ECI

Exploration Co., Employees' Profit Sharing Plan v. Holloway (In re

HECI Exploration Co.), 862 F.2d 513, 523 (5th Cir.1988). The Group

contends that Christopher's conduct in defending the New York state

lawsuit for almost two years after confirmation of his plan of

reorganization manifests his intent to relinquish his right to rely

on his discharge in bankruptcy. The bankruptcy court concluded

that Christopher's "litigation of the state court claims against

him did not evidence an actual intent to relinquish [his] right to

discharge of the state court claims." 148 B.R. at 837.

We do not agree with the Group's cont ention that the

bankruptcy court clearly erred in finding that Christopher did not

actually intend to relinquish his right to assert against the Group

the discharge he received in his Chapter 11 proceedings.

Christopher testified at trial that he actively defen ded the New

York lawsuit even after receiving his discharge because his counsel

advised him that the litigation of the Group's postpetition claims22

was not affected by his Chapter 11 proceedings. This testimony

negates the i nference that could be drawn from Christopher's

c onduct that he intended not to rely on his discharge in the

Group's New York lawsuit. Indeed, Christopher's testimony supports

another inference that could be drawn from his conduct—that he

simply did not know he could use his discharge as a defense in the

New York lawsuit. The bankruptcy court's finding that Christopher

did not intend to relinquish a known right is plausible in light of

the record viewed in its entirety and so is not reversible.

IV. CONCLUSION

For the f oregoing reasons, we AFFIRM the judgment of the

district court.