* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 14 2004 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

IN RE: MICHAEL CHARLES SCHICKE, Debtor.

__________________________ CHANUTE PRODUCTION CREDIT ASSOCIATION, Appellant,

v. MICHAEL CHARLES SCHICKE, Appellee. No. 03-3114 (BAP No. KS-01-089) (U.S. Bankr. App. Panel)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRYand McCONNELL , Circuit Judges.
In April 1984, a Kansas state district court found Michael Schicke liable to Chanute Production Credit Association (CPCA) in the amount of $583,186.39 for fraudulent receipt of loans. Twelve years later, M r. Schicke filed a petition for relief under Chapter 7 of the Bankruptcy Code, list ing CPCA as a creditor holding-2-

an unsecured, nonpriority claim in the amount of th e judgment. CPCA neither filed a proof of claim nor objected to discharge of the debt owed it by Mr. Schicke. In November 1996, the bankruptcy court entered a Discharge of Debtor and Final Decree. Nearly four years later, CPCA fi led a Motion to Reopen in the bankruptcy court claiming it received no Notice of Commencement of Case. The bankruptcy court denied the motion. The bankruptc y appellate panel upheld the denial. Chanute Prod. Credit Assoc. v. Schicke (In re Schic ke) , 290 B.R. 729 (2003). We affirm. CPCA contends that Mr. Schicke’s attempt to provide CPCA with notice of his bankruptcy petition via CPCA’s attorney of reco rd in the Kansas state court fraud action failed to comport with the minimum req uirements of due process. The Supreme Court has held that the “practicalities and peculiarities” of each case must be considered in assessing a due process chall enge, Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950), so the facts surroundin g notice to CPCA, as found by the bankruptcy court, are essential to resolution of this case. We must accept that court’s findings as true unless they are clearly

erroneous. Yukon Self Storage Fund v. Green (In re Green) , 876 F.2d 854, 856 (10th Cir. 1989). CPCA bears the burden of provingclear error. Id. We therefore begin by summarizing the bankruptcy court ’s factual findings as to notice.-3-

In the 1984 state court action against Mr. Schicke, attorney William Coombs of Chanute, Kansas represented CPCA. In 198 9, Mr. Coombs developed cancer and CPCA retained attorney Frank Beyerl to m aintain its judgment against Mr. Schicke. In July 1991, Mr. Beyerl filed a prae cipe of execution so as to sustain the vitality of the judgment, and Mr. Coomb s entered a similar praecipe later that year. Both Mr. Coombs and Mr. Beyerl co ntinued to represent CPCA in the Schicke matter until November 1995, when Mr. Be yerl was suspended from the practice of law. At that time, CPCA retained the services of attorney Kent Pringle, formerly a partner of Mr. Coombs but by th at time practicing independently. Mr. Pringle never entered an appear ance on CPCA’s behalf in the Kansas state court proceeding. CPCA’s last attorne y of record in the fraud matter was Mr. Coombs. According to the bankruptcy court, Mr. Coombs’ law practice, Coombs & Hull, “essentially served as [CPCA’s] gen eral counsel.” Aplt. App. at
99. In the years between CPCA’s fraud action and Mr. Sc hicke’s March 1996 filing for Chapter 7 relief, CPCA was known by seve ral names. The entity referred to itself variously as Chanute Production Credit Association, Farm Credit Services, Federal Land Bank Association, and Fronti er Farm Credit. Mr. Schicke, however, knew the bank only as Chanute Production C redit Association. At the time Mr. Schicke filed his bankruptcy proceeding, the name Chanute Production-4-

Credit Association did not appear in the Chanute, K ansas phonebook, nor was the bank registered as a corporation with the Kansas Se cretary of State. The only address provided by CPCA in the 1984 fraud proceedi ngs was that of its attorney, Mr. Coombs, at a Chanute, Kansas post office box he ld by the firm of Coombs & Hull. Mr. Schicke therefore listed CPCA in Schedul e F of his Chapter 7 petition

as: Chanute Production Credit Association

c/o Coombs & Hull P.O. Box 306 Chanute, KS 66720 The bankruptcy court’s file contained a certificate of service of the Notice of Commencement to the above address. While CPCA d enied receiving actual notice of the commencement of bankruptcy proceeding s, it admitted receiving the discharge notice sent to the same address. After an evidentiary hearing, the bankruptcy court found that the law office of Coomb s & Hull had received the commencement notice as well. Although the burden o f proof was on CPCA to show it did not receive sufficient notice, see In re Cloninger , 209 B.R. 125, 126 (Bankr. E.D. Ark. 1997), CPCA did not call any atto rney from Mr. Coombs’ firm to testify that the firm did not receive notice of the bankruptcy proceedings. The bankruptcy court drew an adverse inference from CPC A’s failure to present such evidence, and concluded that CPCA had received actu al notice of Mr. Schicke’s bankruptcy proceedings. Specifically, the court fo und:-5-

That the bankruptcy of a notorious borrower whose l iability exceeded $1.0 million at the time of his filing and who list ed the [CPCA] in care of the lawyers who had acted to collect the ju dgment for several years and still represented the [CPCA] on other matters never came to the [CPCA’s] attention is not likely. In the ab sence of any affirmative testimony by Hull that the law firm didnot receive the notice, the Court is forced to conclude that [CPCA’ s] regular attorneys were aware of the filing and that notice to them was reasonably calculated to give knowledge of this cas e to the [CPCA]. Aplt. App. at 106. See also Walker v. Wilde (In re Walker) , 927 F.2d 1138, 1145 (10th Cir. 1991) (actual notice of chapter 7 suffic ient notwithstanding failure to receive formal notice); In re Green , 876 F.2d at 857 (same). “An elementary and fundamental requirement of due p rocess in any proceeding which is to be accorded finality is noti ce reasonably calculated, under all the circumstances, to apprise interested partie s of the pendency of the action and afford them an opportunity to present their obj ections.” Mullane , 339 U.S. at 314. CPCA admits it changed its name several times between the time it obtained a judgment against Mr. Schicke and the date of Mr. Schicke’s petition for relief under Chapter 7. Aplt. App. at 149. CPCA’s name d id not appear in the Chanute, Kansas phonebook. Id. at 155-56. However, the law office of Coombs & Hu ll, which the bankruptcy court concluded received Mr. S chicke’s commencement notice, represented CPCA in a host of legal matters including, at least so far as the state court record showed, CPCA’s fraud suit ag ainst Mr. Schicke. “[N]otice to a creditor’s attorney . . . is ordinarily consid ered sufficient if the attorney-6-

received knowledge of the case while representing the creditor in enforcing the creditor’s claim against the debtor.” 4 C OLLIER ON B ANKRUPTCY§ 523.09[4][a] (15th ed. 2003); see also Hecht v. Hatch (In re Hatch) , 175 B.R. 429, 433 (Bankr. D. Mass. 1994) (notice to attorney representing cre ditor in claims against debtor is sufficient to bind creditor); Linder v. Trump’s Castle Assocs. , 155 B.R. 102, 104-05 (Bankr. D.N.J. 1993) (same). Under the facts of this case, we are persuaded thatMr. Schicke’s serving notice on CPCA via its counsel at the only address CPCA had provided in the earlier fraud action was “reasonably calculated” un der Mullane , 339 U.S. at 314, to provide CPCA with notice of Mr. Schicke’s bankruptcy proceedings. Contrary to CPCA’s assertion, the bankruptcy court’s refusal to reopen Mr. Schicke’s bankruptcy case was not an abuse of discretion.
We AFFIRM

. ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge