PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: APEX EXPRESS CORPORATION;

HUMBOLDT EXPRESS, INCORPORATED,

Debtors.

HUMBOLDT EXPRESS, INCORPORATED,

No. 98-2204

Plaintiff-Appellee,

v.

THE WISE COMPANY, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA-97-357-3-P, BK-96-3548, BK-96-30221)

Argued: May 3, 1999

Decided: September 22, 1999

Before MURNAGHAN, LUTTIG, and KING, Circuit Judges.

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Affirmed in part, reversed in part, and remanded by published opinion. Judge Murnaghan wrote the opinion, in which Judge Luttig and

Judge King joined.

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COUNSEL

ARGUED: Raymond Andrew Selvaggio, Sr., AUGELLO, PEZOLD

& HIRSCHMANN, P.C., Huntington, New York, for Appellant.
Joseph L. Steinfeld, Jr., A.S.K. FINANCIAL, Washington, D.C., for

Appellee. ON BRIEF: George Carl Pezold, AUGELLO, PEZOLD &

HIRSCHMANN, P.C., Huntington, New York; Howard M. Widis,

Charlotte, North Carolina, for Appellant. John T. Siegler, Joseph A.

Hess, A.S.K. FINANCIAL, Washington, D.C.; A.S.K. FINANCIAL,

Eagan, Minnesota, for Appellee.

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OPINION

MURNAGHAN, Circuit Judge:

Plaintiff Humboldt Express, Inc. ("Humboldt"), a freight trucking

corporation in bankruptcy, seeks to recover amounts allegedly owed

by Defendant The Wise Co., Inc. ("Wise"), as penalties for late payment of freight charges. This case is one of hundreds of similar suits

brought by the bankruptcy estate. After Humboldt went bankrupt, it

paid an outside firm to "mine" its computer billing records to find

long-settled accounts for which Humboldt could technically invoke

the late payment penalty provisions of its tariffs.

The bankruptcy court granted summary judgment in favor of Humboldt; the district court affirmed. Both of these courts found that

Humboldt had made a prima facie showing that Wise owed the late

payment penalties and that Wise had not presented any evidence creating a genuine issue of material fact. Wise now appeals, claiming,

inter alia, that the district court used the wrong standard of review;

that a genuine issue of material fact existed; that the late payment

penalties are unreasonable; that Humboldt's claim is subject to various equitable defenses; that the bankruptcy court should have referred

various issues to the Surface Transportation Board ("STB"); and that

Wise enjoys various statutory defenses. We affirm in part, reverse in

part, and remand for proceedings consistent with this disposition.

I.

Humboldt was a trucking company which held dual authority from

the Interstate Commerce Commission ("ICC") 1 to operate as a com-

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1 Under the Interstate Commerce Commission Termination Act, Pub. L.

No. 104-88, 109 Stat. 803 ("ICCTA"), effective January 1, 1996, the ICC

 2
mon and contract carrier. Wise manufactures seats for vehicles such

as trucks, tractors, boats and forklifts. From 1985 through the end of

1995, Wise used the services of Humboldt to transport its products.

During its relationship with Humboldt, Wise asserts that it tendered

approximately 15 to 24 shipments per month, or about 240 per year.

The rates at which Humboldt transported this freight were

expressed in terms of discounts taken off of what are commonly called "class" or "bureau" rates. These"class" rates are collectively-made

rates utilized by trucking companies as a benchmark. Wise asserts,

however, that full class rates are seldom charged to a regular customer. Instead, each trucking company establishes discounted rates,

which are the rates that are set to meet the prevailing market rate

offered by competitors. These assertions are supported by the record,

as Humboldt generally charged Wise a rate which was enumerated as

a discount off of the class rate. During the period at issue Wise was

initially receiving a 50 percent discount off the class rates. In early

1995, Wise's discount level was increased to 55 percent.

Humboldt's governing tariff provided that if a customer failed to

pay its freight charges within thirty days, the customer would be

penalized by losing its discount:

PENALTY FOR NONPAYMENT OR

LATE PAYMENT

1. Failure to make payment of freight charges to[Humboldt] for service performed as a common carrier within

thirty (30) calendar days of presentation of the Freight Bill

will result in the forfeiture of all discounts, allowances,

commodity rates, brokerage agreements, incentives or any

other reductions to which the debtor may otherwise be entitled.

(J.A. at 67.) The rule goes on to provide that if no discounts are applicable, Humboldt will assess a thirty percent (30%) late charge subject

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was abolished and replaced in part by the Surface Transportation Board

("STB").

 3
to a $25.00 minimum. (Collectively, the loss of discount provision

and the late payment assessment will be referred to as the "late payment penalties.")

On February 7, 1996, Humboldt filed a voluntary petition for liquidation under Chapter 11 in the U.S. Bankruptcy Court for the Western

District of North Carolina. At some point, Humboldt contracted with

Trans Allied Audit Company ("Trans Allied") to collect its so-called

"accounts receivable." Trans Allied specializes in auditing freight

bills of bankrupt or otherwise defunct trucking companies. Trans

Allied has audited the books of about 100 bankrupt or otherwise

defunct carriers. Wise asserts the following about Trans Allied's practices:

Trans Allied reviews the carrier's past billing practices

looking for errors to support undercharge claims and to

"create" so-called "receivables". In other words, Trans

Allied scours the books and records of a defunct carrier . . .

looking for errors or technicalities in the trucking company's tariffs that can be used to seek additional charges on

invoices that have long since been paid by the trucking company's former customers. Then, Trans Allied issues a bill to

the former customers of the trucking company indicating

that at the time of shipment ([often] some two or three years

ago), the trucking company failed to either charge or collect

the correct amount. This type of bill is typically referred to

as a bill for "undercharges".2

(Appellant's Br. at 9.) The facts seem to bear out Wise's description

of Trans Allied's practices. The case at bar is only one of hundreds

of cases brought by Humboldt against its former customers in the

wake of Trans Allied's audit of its accounts. Trans Allied apparently

found about $15 million in potentially collectible late payment penalties and other amounts due. After Trans Allied uncovered these

amounts, Humboldt sent out dunning notices to the customers who

allegedly owed for past services. Fourteen of the fifteen late payment

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2 Whether Humboldt's attempts to collect the late payment penalties is

an attempt to collect "undercharges" is discussed at greater length at note

23, infra.

 4
penalties Humboldt attributes to Wise were well over one year old

when Humboldt began this post-bankruptcy dunning campaign in the

summer of 1996. For most of the bills sent to Wise, Wise submitted

evidence indicating that this campaign was the first attempt by Humboldt to impose the late charges. When the recipients of the dunning

notices refused to pay, Humboldt began filing lawsuits in the bankruptcy court. The present case was filed November 8, 1996.

In order to be able to collect late payment penalties, Humboldt had

to prove that it complied with the credit regulations at 49 C.F.R. part

1320.2(g) (1996).3 See section III, infra. To establish compliance,

Humboldt needed to show: (1) that Humboldt warned shippers of its

late payment terms when it sent out the original freight bills; (2) the

date on which original freight bills were mailed by Humboldt; (3) that

payment was not received within thirty days of presentation of the

original bill; and (4) that Humboldt mailed out a "Past Due" bill

within 90 days after the expiration of its credit period, (5) which

imposed the late payment penalty.

The first element -- whether Humboldt's freight bills warned shippers of late payment penalties -- was undisputed. Wise admits that

Humboldt's freight bills contained a warning on the back which called for the possibility of a penalty for late payments.

To satisfy the remaining four elements of its prima facie case of

compliance, Humboldt relied solely on information gleaned from

Trans Allied's post hoc reconstruction of its computer billing records.

It is not clear whether Humboldt maintained contemporaneous hardcopy records and, if so, what happened to all of such records. Trans

Allied hired James Edward Cook in May 1996 to explore Humboldt's

computer records to find the date on which original freight bills were

allegedly generated by Humboldt, the date on which Humboldt allegedly received payment, and the date on which the Past Due bills were

allegedly generated by the computer. Humboldt then generated duplicates of the Past Due freight bills which Humboldt had allegedly sent

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3 Although the credit regulations also allow for service charges (i.e.,

interest) in addition to liquidated damages for late payment, see 49

C.F.R. part 1320.2(e), Humboldt has never asserted that the fees at issue

were, in whole or in part, service charges.

 5
out to each of its delinquent customers. Additionally, Humboldt created a post-hoc statement of account recreating all of the necessary

data mined from its computers. The statement of account pertinent to

the case at bar is reprinted in part below:

Past Due Chart

 Billdate PD Date Billed Paiddate Paid Total Due

 1 04/06/94 05/11/94 165.98 01/30/95 127.66 38.30

 2 04/19/94 05/25/94 175.80 01/30/95 79.11 96.69

 3 05/06/94 06/15/94 161.09 01/30/95 80.54 80.55

 4 06/17/94 07/27/94 415.89 01/30/95 207.94 207.95

 5 06/20/94 08/03/94 325.25 01/30/95 146.36 178.89

 6 08/08/94 09/14/94 6,056.50 01/30/95 2,725.40 3,331.10

 7 10/10/94 11/16/94 794.70 01/30/95 611.31 183.39

 8 10/20/95 11/30/94 227.57 01/30/95 175.05 52.52

 9 01/10/95 02/15/95 496.27 03/13/95 248.13 248.14

10 01/20/95 03/01/95 358.02 03/13/95 161.11 196.91

11 01/25/95 03/01/95 710.98 03/13/95 355.49 355.49

12 01/26/95 03/08/95 503.00 03/20/95 251.50 251.50

13 01/28/95 03/08/95 2,085.60 03/20/95 896.79 1,188.80

14 02/08/95 03/17/95 198.70 03/20/95 89.41 109.29

15 09/26/95 11/02/95 94.07 11/13/95 69.07 25.00

 _______ _______

 6244.89 6544.52

In the case at bar, Humboldt seeks to collect the $6,544.52 in

"Total Due" penalty charges for the above fifteen freight bills, which

were allegedly paid late. Humboldt alleged that it mailed fifteen original freight bills to Wise on or about the "Billdate" dates in 1994 and

1995 identified above. These fifteen freight bills were allegedly not

paid within thirty days. Humboldt allegedly sent another, "Past Due,"

freight bill, on or about the dates in 1994 and 1995 which are identified above as the "PD Date." It is undisputed that Wise paid only the

"Paid" amount on the "Paiddate" enumerated above. Therefore, Humboldt sought to collect the "Total Due" for each bill.

In response to Humboldt's claims, Wise introduced copies of the

freight bills that it allegedly actually received in connection with the

shipments at issue. Of the fifteen freight bills at issue, twelve

 6
(invoices 1-8 and 12-14) are denoted in the upper right-hand corner

as "REPRINT." Wise was not able to substantiate the exact date on

which it received each freight bill, but the fax date on some of the

REPRINT bills indicates that Wise received these bills several

months after Humboldt contends they were sent.

Wise also submitted evidence that since 1988, Wise retained Allen

Traffic Service ("ATS") to pre-audit freight bills from the carriers

used by Wise. As a customary and routine business practice, Wise

accumulated all carrier freight bills received during the course of a

week and sent them to ATS on the Friday of that week or the following Monday. ATS audited the bills to determine if the freight charges

were correct and returned them to Wise for payment within five days

from when ATS received them. A representative of ATS stated that

"[t]he only freight bills received for these[fifteen] shipments are

those [fifteen] freight bills" submitted by Wise. (J.A. at 192.) Significantly, in only three (invoices 10, 11, and 15) of the freight bills had

Humboldt added the late payment penalty to the amount due, even

though all of the freight bills except one (invoice 14) were sent to

Wise after Humboldt's asserted "PD Date." 4

On May 28, 1997, the bankruptcy judge held a hearing on motions

for summary judgment by Humboldt and Wise and a motion by Wise

for stay and referral to the Surface Transportation Board. On June 10,

1997, the bankruptcy court granted Humboldt's motion for summary

judgment and denied Wise's motions. The bankruptcy court denied

Wise's motion for reconsideration on June 13, 1997. Wise timely

filed a notice of appeal of this decision.

The district court affirmed the bankruptcy court's order on June 17,

1998. The district court held that Humboldt had fulfilled its prima

facie case and Wise had presented no evidence competent to create

a genuine issue of material fact. The district court also agreed that

referral to the Surface Transportation Board was not necessary. Wise

timely filed a notice of appeal of this decision.

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4 It is unclear when invoice 9 was sent to Wise.

 7
II.5

A.

The district court followed the bankruptcy court in holding that the

present proceeding was in the nature of an attempt to collect accounts

receivable and so is a "core" proceeding within the meaning of 28

U.S.C.A. §§ 157(b)(2)(A), (E), and (O) (West 1993).6 What is at stake

is the proper standard of review applicable to the bankruptcy court's

factual determinations. If the proceeding is a core proceeding, the district court correctly reviewed the bankruptcy court's factual determinations for clear error and its legal conclusions de novo. Fed. R.

Bankr. P. 8013. See also In re Johnson, 960 F.2d 396, 399 (4th Cir.

1992). If the proceeding is non-core, the district court should have

undertaken a de novo analysis of both the factual findings to which

Wise objected and the law. See 28 U.S.C.A.§ 157(c)(1) (West 1993).

See also In re Johnson, 960 F.2d at 399.

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5 Wise has not urged in its briefs before this Court several arguments

that it raised before the bankruptcy and district courts including, inter

alia, that Humboldt was required to establish the postmark date on which

it sent out the various bills under 49 C.F.R. part 1320.4(c) (1996); that

Humboldt's late payment penalties are void as against public policy; that

Humboldt's record keeping did not comply with ICC regulations; that

Humboldt aggregated its late payment bills in violation of 49 C.F.R.

part 1320.2(g)(2)(iii); that the Federal Aviation Administration Authorization Act of 1994 preempts Humboldt's attempts to enforce its late payment penalties; that Humboldt's late payment provisions did not apply to

the shipments at issue; and that Wise was entitled to summary judgment

on the intrastate claims. Therefore, we do not address those issues. See

Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir.

1997) (issues raised in notice of appeal but not briefed on appeal deemed

waived).

6 Core proceedings include, but are not limited to: "(A) matters concerning the administration of the estate; . . . (E) orders to turn over the

property of the estate; . . . (O) other proceedings affecting the liquidation

of the assets of the estate or the adjustment of the debtor-creditor . . .

relationship, except personal injury tort or wrongful death claims." 28

U.S.C.A. § 157(b)(2) (West 1993).

 8
We disagree with the district court and the bankruptcy court that

Humboldt's claim is a core proceeding. In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the

Supreme Court struck down portions of the Bankruptcy Act of 1978

as violative of Article III of the Constitution. See Northern Pipeline,

458 U.S. at 87. The chief basis for the plurality opinion was that the

Bankruptcy Act of 1978 allowed non-article III courts (i.e., bankruptcy courts) to hear claims based upon state-created private rights

that arose independent from and antecedent to the bankruptcy proceedings and involved strangers to the bankruptcy action. See id. at

84 (plurality opinion). In the wake of Northern Pipeline, Congress

enacted the core/non-core distinction to try and remedy the defects in

the bankruptcy system. See Bankruptcy Amendments and Federal

Judgeship Act of 1984 (1984 Act), Pub. L. No. 98-353, 98 Stat. 333

(1984).

The distinction between what is "core" and what is "non-core" is

far from clear. On the one hand, a broad reading of the literal terms

of the statutory text could lead to the result that courts treat just about

every dispute as "core." See, e.g. , 28 U.S.C.A. § 157(b)(2)(A)

("matters concerning the administration of the estate"); § 157(b)-

(2)(O) ("Other proceedings affecting the liquidation of the assets of

the estate"). But, the statute must be interpreted keeping in mind (1)

that Congress passed it in response to the defects revealed by

Northern Pipeline, and (2) that Northern Pipeline remains good law,

even if perhaps narrowed by subsequent decisions, see Thomas v.

Union Carbide Agric. Products Co., 473 U.S. 568 (1985); Commodity

Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986).

Courts are split on whether "accounts receivable" claims against

strangers to the bankruptcy proceeding and other litigation based on

pre-petition contract-based rights are core or non-core. The bankruptcy court followed In re Wilson Feed Co., Inc., 142 B.R. 123

(Bankr. E.D. Va. 1992); In re Leco Enterprises, Inc., 125 B.R. 385

(S.D.N.Y. 1991); In re Allegheny, Inc., 68 B.R. 183 (Bankr. W.D. Pa.

1986); In re National Equipment & Mold Corp., 60 B.R. 133 (Bankr.

N.D. Ohio 1986), in holding that Humboldt's claim was a core proceeding. See also In re American Freight System, Inc., 164 B.R. 341

(D. Kan. 1994); In re Bingham Systems, Inc., 139 B.R. 809 (Bankr.

N.D. Miss. 1991); In re Total Transp., Inc., 87 B.R. 568 (D. Minn.

 9
1988). These courts reason that "accounts receivable" actions are core

because they represent estate assets, often a substantial portion of

such assets, and therefore their prompt resolution concerns the administration of the estate under § 157(b)(2)(A), and affects liquidation of

the estate under § 157(b)(2)(O). See, e.g., In re Leco Enterprises, 125

B.R. at 389-90; In re Franklin Computer Corp. , 60 B.R. 795, 802

(Bankr. E.D. Pa. 1986). Further, requiring the bankruptcy trustee to

litigate such claims in state court would impose an administrative burden on the bankruptcy estate. See, e.g. , In re Wilson Feed Co., 142

B.R. at 126. The courts also view accounts receivable claims to be

"turnover" claims under § 157(b)(2)(E), because they believe that

accounts receivable are property of the estate which is due, payable

on demand, and for a sum certain within the meaning of a "turnover"

proceeding under 11 U.S.C.A. § 542(b) (West 1993). These courts

view the § 542(b) rights of trustees to pursue mature debts to be "a

traditional type of proceeding which is at the core of a bankruptcy."

In re Best Refrigerated Express, Inc., 132 B.R. 420, 421 (Bankr. D.

Neb. 1991).

We think the better approach is that such claims, at least when

grounded in state law and arising pre-petition, must be treated as noncore.7 A majority of courts have taken this approach. See, e.g., Beard

v. Braunstein, 914 F.2d 434, 444-445 (3rd Cir. 1990); In re Orion

Pictures Corp., 4 F.3d 1095, 1102 (2nd Cir. 1993); In re Pisgah Contractors, Inc., 215 B.R. 679 (W.D.N.C. 1995); In re National Enterprises, Inc., 128 B.R. 956, 960 (E.D. Va. 1991); In re Maislin Indus.,

U.S., Inc., 50 B.R. 943, 948-950 (Bankr. E.D. Mich. 1985)); In re

Mec Steel Buildings, Inc., 136 B.R. 606, 610 (Bankr. D.P.R. 1992);

In re United Security & Communications, Inc., 93 B.R. 945, 957

(Bankr. S.D. Ohio 1988) ("clear majority, and better-reasoned, view"

is to treat pre-petition accounts receivable as non-core); In re Tobler

Transfer, Inc., 74 B.R. 373, 375 (Bankr. C.D. Ill. 1987). We also note

that without analysis this Court has referred to similar claims as noncore proceedings. See In re Bulldog Trucking, Inc., 66 F.3d 1390,

1392-93 (4th Cir. 1995). The primary reason for our holding is that

such claims fall squarely under the dictates of Northern Pipeline.

Congress may not force non-consenting claimants whose claims are

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7 When a creditor files a claim with the bankruptcy court, though, she

has consented to its jurisdiction.

 10
based on state-created private rights into non-Article III courts. See

Northern Pipeline, 468 U.S. at 70-72, 77, 81-84.

Further, the logic used by the courts which would treat "accounts

receivable" and other basically contract claims as "core" proves too

much. The main justification supplied by these courts is that because

the accounts receivable are in some sense the property of the bankruptcy estate, and because the outcome of the claim will affect the

bankruptcy estate (by altering its size), then the claims are "core."

See, e.g., In re Leco Enterprises , 125 B.R. at 389-90; In re Franklin

Computer Corp., 60 B.R. at 802. But, under this logic any claim

involving a potential money judgment would be considered core, even

the precise contract claim at issue in Northern Pipeline. Thus, the

rationale used by these courts would swallow the rule established by

Northern Pipeline. See In re Orion Pictures , 4 F.3d at 1102 (to treat

pre-petition contract claims as core proceedings under §§ 157(b)-

(2)(A) or (O) "creates an exception to Northern Pipeline that would

swallow the rule.").

Finally, we believe that the courts treating pre-petition contractbased claims as "core" proceedings pay insufficient attention to the

public rights/private rights distinction which was a key aspect of

Northern Pipeline. See Northern Pipeline, 458 U.S. at 69-72, 77 (plurality opinion). Cf. also Granfinanceria, S.A. v. Nordberg, 492 U.S.

33, 53-55 (1989) (dealing with Seventh Amendment jury trial right;

stating analysis is the same for Article III and Seventh Amendment

jury trial rights and re-affirming importance of public rights/private

rights distinction in the analysis). But cf. Thomas, 473 U.S. at 585-86

(public rights/private rights distinction not determinative for Article

III purposes). The Court in Northern Pipeline observed that "the

restructuring of debtor-creditor relations, which is at the core of the

federal bankruptcy power" is a public right. Northern Pipeline, 458

U.S. at 71 (plurality opinion). Because the public right nature of bankruptcy proceedings gives Congress the power to assign judicial functions to non-Article III bankruptcy courts, the core/non-core

distinction should depend upon the connection the claim has to this

public right. The type of dispute at issue only has some theoretical

and indirect impact on the public act of debt restructuring. But, the

dispute itself is entirely separate and entirely private -- the contractbased liability between two private parties. See id. at 69-70 (plurality

 11
opinion) (citing Crowell v. Benson, 285 U.S. 22, 51 (1932)). The resolution of the present private right dispute is hardly at the core of

restructuring debtor-creditor relationships. To be faithful to Northern

Pipeline, we must treat such a private rights dispute as a non-core

matter.

The present case is complicated because while Humboldt's claim

is fundamentally contractual in nature, the governing law is federal

not state. Northern Pipeline indicated that Congress has greater leeway in assigning resolution of federally-created rights, even private

rights, to non-Article III tribunals. See Northern Pipeline, 458 U.S. at

81-84 (plurality opinion). We believe, however, that the federal nature

of the dispute involved is only incidental to the question being discussed. First, the Supreme Court stated in Schor that "there is no reason inherent in separation of powers principles to accord the state law

character of a claim talismanic power in Article III inquiries." Schor,

478 U.S. at 852. See also 28 U.S.C.A. § 157(b)(3). We think the same

can be said for the federal law character of a claim. Second, the issue

here is not whether Congress could assign a dispute over interstate

freight billing to a non-Article III tribunal; the question is whether

Congress assigned such a dispute to a non-Article III tribunal under

the language of 28 U.S.C.A. § 157(b)(2). We conclude that the

answer to the latter question is clear. Section 157(b)(2) defines "core"

and "non-core" without reference to the federal or state nature of the

right. A pre-petition state-based contract claim and a pre-petition

federal-based contract claim stand in the same position vis-a-vis the

statutory language of § 157(b)(2) and vis-a-vis the core public rights

function of bankruptcy courts. There is thus no reason to treat the

claim at issue any different than a pre-petition state-based contract

claim.

B.8

Thus, the bankruptcy and district courts erred in holding that the

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8 Because we conclude that the bankruptcy court's factual findings

were clearly erroneous, our disposition of the above issue is not crucial

to the remainder of our decision. It will, however, affect the district

court's review on remand.

 12
proceeding was a core proceeding, and the district court therefore

erred in applying the incorrect standard of review.

Because this was a motion for summary judgment and we have

before us all of the facts developed below, rather than remanding to

the district court so that it can conduct a de novo factual analysis, we

undertake that de novo analysis in the first instance.

III.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a

court should grant a motion for summary judgment only if there is no

genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986). In deciding the motion, the court must consider whether a reasonable jury could find in favor of the non-moving

party, taking all inferences to be drawn from the underlying facts in

the light most favorable to the non-movant, in this case Wise. See,

e.g., Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.

1988); Anderson, 477 U.S. at 255.

Wise must set forth specific facts showing a genuine issue, and it

may do so by reference to the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if

any." See Fed. R. Civ. P. 56(c). Wise cannot satisfy its burden by simply showing a mere metaphysical doubt about the facts. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

The bankruptcy court9 held that there were no genuine issues of

material fact. First, the court found that Humboldt had fulfilled its

prima facie case against Wise. This holding by the bankruptcy court

is reasonable: Wise's discovery responses admitted receipt of the

freight bills, notice of the credit terms including the late payment pen-

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9 The district court merely adopted the factual findings and legal conclusions of the bankruptcy court. Therefore, although we formally are

reviewing the district court's decision, we will frequently refer to the

bankruptcy court's decision.

 13
alty, receipt of Past Due bills,10 and failure to pay the late payment

charges.

Second, the bankruptcy court held that the various affidavits and

other evidence provided by Wise were insufficient to demonstrate a

genuine issue of material fact. The bankruptcy court deemed the affidavit of Wise's president, James Freudenberg, to be irrelevant

because it did not indicate that Freudenberg had any personal knowledge or basis for his statements and thus must have been based on

conjecture or hearsay.11 See Fed. R. Civ. P. 56(e). The court rejected

the affidavit of the contractor in charge of handling Wise's freight

billing, Bob Allen, because it allegedly "simply misse[d] the point."

The court thought that Allen's statement that Humboldt did not send

Allen the original invoices did not address whether such invoices had

been sent to Wise. Finally, the court noted that"conspicuously

absent" from Wise's submissions were any contemporaneous business

records or other evidence to support its assertions. Therefore, the

court made all of its findings in favor of Humboldt and accepted

Humboldt's re-created computer records as conclusive evidence that

Humboldt sent out the required original invoices and Past Due

invoices with late payment penalties.

We find error in the bankruptcy court's conclusion that there were

no genuine issues of material fact. We first reiterate Humboldt's burden. At the time of facts giving rise to this case, carriers were allowed

to extend credit only pursuant to regulations established by the ICC.

See 49 U.S.C.A. § 10743(a), (b) (West 1995). Under the regulations

established by the ICC, Humboldt had to show (1) that it gave notice

to Wise of its late payment penalty provisions; (2) that it sent out the

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10 Wise did admit that it had received Past Due bills. Crucially, however, Wise never admitted that these bills contained revised rates reflecting that Humboldt was imposing a late payment penalty. Wise maintains

that most of the Past Due bills it received contained the original, discounted rate.

11 It is worth noting that two of the three affiants for Humboldt based

the majority of their relevant statements on hearsay, not personal knowledge. See Affidavit of Rodney A. Johnson, J.A. at 86-90; Affidavit of

James Edward Cook, J.A. at 92-95. The bankruptcy court never

addressed this point.

 14
original freight bill; (3) that payment was not received within thirty

days of presentation of this bill; (4) that it sent out a Past Due freight

bill within 90 days after the original thirty day period had elapsed

(i.e., within 120 days of original billing); and (5) that the Past Due bill

was revised in that it imposed a late payment penalty. See 49 C.F.R.

part 1320.2(g) (1996); Interstate Commerce Commission v. Transcon

Lines, 513 U.S. 138, 148-49 (1995).12 See also, e.g., Dillard Depart-

_________________________________________________________________

12 Although both parties have assumed the applicability of Transcon to

the case at bar, we note Transcon does not dictate that Wise may raise

49 C.F.R. part 1320.2(g)(2) as a defense. See Transcon, 144-147 (declining to address "whether or not we would allow shippers to defend against

a carrier's collection action by relying on the carrier's violation of credit

regulations"). We hold, however, that a carrier must show compliance

with the regulations formerly in 49 C.F.R. part 1320.2 before it can collect late payment penalties. The case which gave the Supreme Court

pause in Transcon was Southern Pacific Transp. Co. v. Commercial Metals Co., 456 U.S. 336 (1982). That case is distinguishable on several

bases. First, as recognized by the Supreme Court in Transcon, 513 U.S.

at 146, the defendant in Commercial Metals was seeking to enforce a

regulation which was intended to benefit the carrier. Here, Wise seeks to

enforce regulations which were intended to benefit shippers such as

Wise. Second, in Commercial Metals, to the extent that the ICC had spoken on the topic, it had indicated that a defendant of the type involved

could not raise as an affirmative defense a violation of the regulation at

issue. See Commercial Metals, 456 U.S. at 345. No such pronouncements exist to limit the regulations invoked by Wise. In fact, the governing law indicates that shippers should be able to challenge charges

subsequently billed by carriers. See 49 U.S.C.A. § 13710(a)(3)(B) (West

1997). And, the ICC/STB has indicated that shippers should be able to

invoke the credit regulations at issue. See, e.g., Dillard Department

Stores, Inc.--Petition for Declaratory Order--Certain Rates and Practices of P*I*E Nationwide, Fed. Carr. Cas. (CCH)¶ 38,188, 1995 WL

277124 (I.C.C. May 12, 1995) [hereinafter Dillards]. Third, regardless of

whether Wise could raise an affirmative defense, Humboldt must show

as part of its prima facie case compliance with the applicable credit regulations because absent such compliance, Humboldt may not impose late

payment penalties. See 49 C.F.R. part 1320.2(g)(2)(vi) (using the mandatory "shall"); Transcon, 513 U.S. at 141 ("Before collecting liquidated

damages by tariff rule, however, a carrier must follow specified procedural requirements." (emphasis added)); Dillards, Fed. Carr. Cas.

¶ 38,188, 1995 WL 277124.

 15
ment Stores, Inc.--Petition for Declaratory Order--Certain Rates

and Practices of P*I*E Nationwide, Fed. Carr. Cas. (CCH) ¶ 38,188,

1995 WL 277124 (I.C.C. May 12, 1995).

Wise submitted evidence sufficient to create genuine issues of

material fact as to each of the last four required showings in the above

paragraph. First, Wise presented evidence tending to show that it

never received the original invoices. Freudenberg's affidavit states

outright that the original freight bills were never received by Wise.

The bankruptcy court dismissed Freudenberg's statements on the

basis of lack of foundation. See Fed. R. Civ. P. 56(e). Freudenberg,

however, was the president of a small business for 30 years. We have

held in the Rule 56(e) context that "ordinarily, officers would have

personal knowledge of the acts of their corporations." Catawba

Indian Tribe of South Carolina v. South Carolina, 978 F.2d 1334,

1342 (4th Cir. 1992). Therefore, in the absence of evidence from

Humboldt that Freudenberg was not competent to testify, we assume

that he was. See id.

We need not rely solely on Freudenberg's statement that Wise did

not receive the original invoices from Humboldt, however. Even if we

had some doubts about whether Freudenberg was competent to testify

about the receipt of fifteen specific invoices, we have no trouble

under Catawba finding Freudenberg competent to testify as to Wise's

regular invoice payment business practices. Freudenberg stated that

Wise's regular business practice since 1988 was to forward all freight

invoices received to Allen Traffic Service ("ATS"). Bob Allen, president of ATS, submitted an affidavit confirming that Wise's routine

was to forward all freight invoices to Allen. Allen's affidavit states

that the original bills at issue were not received. The bankruptcy

court's assertion that Allen's affidavit "misses the mark" because it

deals with whether ATS received the bills rather than whether Wise

received them is itself off-target. Wise presented evidence that, in the

regular course of its business every freight invoice received by Wise

was forwarded to Allen. Thus, in the normal course of business, Allen

was the custodian of Wise's freight bills (i.e., business records)

received in its regularly conducted business activities.13 The absence

_________________________________________________________________

13 Humboldt argues that Wise's interrogatory answers, in which Wise

identified one Wilma Fulghum as "the person(s)" at Wise who served as

 16
of business records can be used as evidence to prove the nonexistence of such a record. See Fed. R. Evid. 803(7). It was error,

then, for the bankruptcy court to reject Allen's testimony, especially

given that all inferences were to be drawn in Wise's favor. We think

that these two affidavits combined create a genuine issue of material

fact as to whether Humboldt actually sent Wise the original bills for

the fifteen invoices at issue.

Second, the above evidence also creates genuine issues of material

fact as to whether some of the Past Due bills were sent out within the

required 120 days. The evidence tends to show that the only bills for

invoices one through eight, see Past Due chart, supra, were sent on

January 20, 1995. Therefore, for invoices one through six, the bill,

even assuming it was a valid revised Past Due invoice, was sent after

the 120 day period had expired.

Third, Wise presented evidence indicating that Humboldt's recreated statement of account is generally inaccurate. Wise submitted

copies of actual freight bills received by Wise from Humboldt regarding each specific freight charge at issue.14 Twelve of the fifteen bills

at issue (invoices 1-9, 12-14), were identified as"REPRINTs." Ten

of these REPRINTs (invoices 1-8, 12-13) contain facsimile headers

indicating that they were sent to Wise by Humboldt some time after

the PD Date shown on the statement of account submitted by Humboldt. This creates a genuine issue of material fact whether Humboldt's post hoc computer recreations can be relied upon at all.

Humboldt seeks to explain the discrepancy in the dates by stating

that faxing of REPRINT bills was done for various purposes and was

not necessarily recorded in its computer systems. This explanation,

_________________________________________________________________

the custodian and individual responsible for freight invoice payment,

showed that neither Freudenberg nor Allen was competent to testify on

the matters in their affidavits. These interrogatory answers, however, do

not establish that no one other than Ms. Fulghum had the requisite

knowledge to testify about Wise's freight invoice practices.

14 Thus, the bankruptcy court was in error when it stated that Wise had

not submitted any contemporaneous business records. In fact, the only

contemporaneous business records submitted below came from Wise.

 17
while potentially persuasive, proves the point, however -- there is a

genuine factual dispute as to the implications of the REPRINT bills.

Fourth, and most importantly, Wise submitted evidence which

tended to show that for most of the invoices at issue, Humboldt's Past

Due bills did not include the late payment penalties. Ten of the

REPRINT bills (invoices 1-8, 12-13) were sent to Wise after the date

when these bills became past due, and these bills still reflect discounted freight charges (i.e., no late payment penalty was included).

Given all inferences in Wise's favor, we hold that this documentary

evidence itself creates a genuine issue of material fact at least as to

these ten bills.15

In addition to the above issues of material fact, we also note that

Wise presented evidence sufficient to create a genuine issue of material fact with regard to whether Wise may raise equitable defenses

against Humboldt's collection of the late payment penalties.16 Both

Freudenberg and Allen's affidavits state that Wise routinely ignored

late fees and that Humboldt acquiesced in this practice. This testimony was inconsistent with affidavits submitted by Humboldt's witness Baird.17

We therefore reverse the district court's grant of summary judgment. The Freudenberg and Allen affidavits and Wise's copies of the

_________________________________________________________________

15 Wise also notes that the bankruptcy judge who handled the case

below has since ruled in a companion case that Humboldt was not entitled to recover when the defendant produces REPRINT bills which continue to show the discounted amounts. See Humboldt v. Smith

Fiberglass, Adv. Pro. No. 96-3886, slip op. at 9-10 (Bankr. W.D.N.C.

1997). We do not pass on that issue.

16 Other aspects of such equitable defenses are discussed at section V,

infra.

17 It is worth noting that Baird's testimony was specious on the record.

Baird stated that "Wise was habitually late in paying its bills and refused

to cooperate with our demands for timely payment." (J.A. at 55.) The

record shows that, on average Wise would have tendered approximately

720 shipments during the time frame audited. Humboldt found unpaid

late payment penalties on only 15 of these -- only 2% of Wise's business with Humboldt.

 18
REPRINT bills create genuine issues of material fact as to whether

Humboldt's post hoc recreation of its billing practices was accurate.

Summary judgment is inappropriate in the face of such disputed

issues of material fact.

IV.

A.

Wise argues that, even if Humboldt had fulfilled all of the procedural requirements to be able to charge Wise late payment fees, such

late payment fees would be unreasonable and unenforceable as penalties rather than as liquidated damages. For support, Wise cites to the

only published case that squarely addressed the issue, Robins Motor

Transportation, Inc. v. Associated Rigging & Hauling Corp., 944 F.

Supp. 409 (E.D. Pa. 1996):

In accordance with general principles of contract law, any

award of liquidated damages [for a late payment fee] must

be reasonable. 49 U.S.C. § 13701(a)(1) (1996) ("A rate,

classification, rule, or practice related to transportation or

service . . . must be reasonable."); 49 U.S.C. § 10701 (1995)

("A rate . . . classification, rule, or practice related to transportation or service related to transportation or service provided by a carrier subject to the jurisdiction of the Interstate

Commerce Commission . . . must be reasonable."); 49

C.F.R. part 1320.2(g)(1) (1995) ("Carriers may, by tariff

rule, assess reasonable and certain liquidated damages for

all costs incurred in the collection of overdue freight

charges."); Regulations for Payment of Rates and Charges--

Penalty Charges for Nonpayment, 1988 WL 224678, n.2

(Feb. 17, 1988) ("Penalty") ("The level of the [liquidated

damages] charge would, of course, be subject to review on

reasonableness grounds under 49 U.S.C. § 10701.").

Id. at 410-11 (emphases added). Wise also cites to the ICC's statement made when promulgating the credit regulations allowing the

loss of discount provision that "[t]he [late payment fee] . . . should be

reasonably tied to the carrier's anticipated collection expenses." Regulations for Payment of Rates and Charges--Penalty Charges for

 19
Nonpayment, 4 I.C.C.2d 340, 344, 1988 WL 224678 (April 3, 1988).

Based on the above authority, Wise argues that in order to be reasonable and enforceable, a late penalty provision must not be a "penalty,"

but must qualify as "liquidated damages," as that term is defined in

the general common law.

Humboldt argues that Wise's arguments here are unfounded

because the general common law concepts cited by Wise are preempted by federal law. See 49 U.S.C.A. § 14501(c)(1) (West 1997)

(state may not "enact or enforce a law, regulation, or other provision"

related to a price, route, or service of any motor carrier).

Humboldt misconstrues Wise's argument, however. Wise bases its

penalty-versus-liquidated damages arguments on federal common

law, not state law.18 We find Wise's arguments persuasive and adopt

the approach in Robins. In addition to the sources cited by Wise, we

also note the following support for Wise's position: The regulation

allowing for the imposition of late payment penalties refers to them

as "liquidated damages," see 49 C.F.R. part 1320.2(g)(1), thus

impliedly referencing the federal common law on liquidated damages.

The Supreme Court has also recognized that the late payment penalties allowed in 49 C.F.R. part 1320.2(g) are to be treated as liquidated

damages. See Transcon, 513 U.S. at 141. Finally, the ICC/STB has

reiterated that late payment penalties must be reasonably tied to collection costs. See Delta Traffic Service, Inc. v. Mennen Co., 730 F.

Supp. 1309, 1313 (D.N.J. 1990) (stating on referral that 35% loss of

discount late payment penalty was unreasonable because, inter alia,

it was not related to the carriers costs).

_________________________________________________________________

18 Wise also rejects the argument that state common law of contract

was preempted by § 14501. Cf. American Airlines, Inc. v. Wolens, 513

U.S. 219 (1995) (rejecting preemption of state common law of contract

by federal law almost identical to 49 U.S.C.A. § 14501(c)(1)). Noting

that the logic of Wolens would not necessarily apply to "binding standards of conduct that operate irrespective of any private agreement," see

id. at 229 n.5, like the anti-penalty doctrine, we decline to address this

issue.

 20
B.

The courts below dismissed Wise's reasonableness/penalty claim

on the basis that Wise had presented no evidence that the late payment fees sought to be charged by Humboldt were unreasonable.

Wise submitted no evidence indicating what other carriers charged as

late payment fees. The bankruptcy court observed that "[i]t appears

from the record here (and in related cases) that discounts -- and discounts of the magnitude of Humboldt's -- were common in the trucking industry; that loss of discount penalties were common in the

industry; and that this was accepted practice in the industry." (J.A. at

38.)

Wise, for its part, notes the general rule that liquidated damages are

not a penalty only if such damages are "reasonable in the light of the

anticipated or actual loss caused by the breach and the difficulties of

proof of loss." Restatement (Second) of Contracts§ 356 (1981). See

also Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413 (1947).

Wise asserts that it cannot seriously be questioned that the amount of

liquidated damages sought herein is grossly disproportionate to Humboldt's actual damages and collection costs. The original freight

charges were $6,224, while the "late payment" charges now sought to

be collected are $6,544 -- some 105% of the cost of the service itself.

At this preliminary stage, we pay attention to what Wise contends.

The test of "reasonableness" must be evaluated through the liquidated

damages/penalty lens. Given the size of the late payment fees at issue

in relation to the original charges, we find that, without further evidence, Wise has made a prima facie showing of unreasonableness.19

_________________________________________________________________

19 We agree that having comparative figures would be useful, but disagree that such figures are necessary. First, we note that cases indicating

that a shipper should provide comparative rates in order to show unreasonableness of the rate as a whole, see, e.g., Miller v. WD-40 Co., 29 F.

Supp.2d 1040, 1045 (D. Minn. 1998); Lewis v. Shepard's/McGraw-Hill,

Inc., 829 F. Supp. 348, 351 (D. Colo. 1993), are inapposite. We deal here

only with the reasonableness of the liquidated damages charges, not the

rate as a whole. The latter inquiry is a fairly technical one which generally requires some comparative information. The former inquiry, however does not. The penalty/liquidated damages analysis is based on the

reasonableness of the fee in light of the costs incurred by the carrier, not

in light of the costs incurred by its competitors.

 21
The court's reliance on the fact that "everyone else is doing it" is

misleading. The court noted that all other carriers provide steep discounts and include on their tariffs loss of discount provisions. While

everyone agrees that large discounts are routinely given, see also

Delta Traffic Service, 730 F. Supp. at 1313 (observing that since 1980

few shipments have moved at the full tariff rate), the key issue here

is whether the penalty provisions are routinely ignored. We think that

taking all inferences in Wise's favor the record indicates that it was

rare that a carrier, at least a solvent one, would actually seek to

enforce its late payment provisions.

The few cases that we could find on the subject also support Wise

at the summary judgment stage. In Robins, the court sua sponte found

that a 50% late payment collection charge was an unreasonable penalty "that bears no relationship to the[ ] actual or reasonably estimated

collections costs." See Robins, 944 F. Supp. at 412. Similarly, the ICC

found in Delta Traffic Service that the loss of a 35% discount is "a

severe penalty that is not related to the cost of credit." Delta Traffic

Service, 730 F. Supp. at 1313. The case at bar involved loss of discounts of between 50% and 55% (i.e., collection costs of between

100% and 122%). Collection costs of such magnitude seem to us to

be prima facie unreasonable.20

The district court and bankruptcy court also reasoned that Humboldt's loss of discount provision must be presumed valid, reasonable

and enforceable as a mandate of the ICC/STB because 49 C.F.R.

part 1320.2(g)(1)(ii) allows carriers to eliminate discounts as a

method of calculating liquidated damages. This argument is questionbegging and proves too much, however. The regulation which allows

loss of discount as liquidated damages does not at all indicate whether

the amount of any particular loss of discount provision is reasonable

and enforceable. In fact, 49 C.F.R. part 1320.2(g) specifically requires

that late payment fees be "reasonable." Under the above reasoning,

absolutely any loss of discount provision would be per se reasonable.

_________________________________________________________________

20 If Humboldt's liquidated damages of 50% were stated in terms of the

annualized cost of credit, which is essentially what they are in this case,

the rate would be approximately 400% (assuming payment after 120

days).

 22
That approach would read the "reasonableness" requirement out of the

regulation.

Therefore, we conclude that summary judgment was erroneously

granted against Wise's unreasonableness claim. We do not go so far

as to hold that Humboldt's late payment penalties are unreasonable,

but remand the issue to the district court for further development.

V.

Wise argues that, even if Humboldt had fulfilled the requisite procedural requirements to charge a late fee, such fees would not be

recoverable because of various equitable defenses, including waiver,

estoppel, and laches. Wise bases its claim on an unpublished case,

Moore's Trucking Co. v. National Starch & Chemical , 1994 WL

741081 (D.N.J. Sept. 27, 1994). In Moore's, the plaintiff motor carrier sought loss of discount late payment fees of over $216,000 on

2,025 bills. The court dismissed the claim in its entirety on waiver,

estoppel, and laches grounds based on the following facts: (1) the

motor carrier had accepted payment of the discounted amount on the

bills in question without protest; (2) the motor carrier had continued

to do regular business with the customer during the relevant time

period without indicating an intent to actually enforce the loss of discount provision; (3) the motor carrier had waited between two and

four years to pursue the loss of discount provisions; and (4) the customer had relied upon this non-enforcement insofar as the customer

could have sought out a new carrier if it had known that the motor

carrier intended to enforce the loss of discount provisions after all.

Wise asserts that Moore's is on all fours with the case at bar.

The bankruptcy court found that Moore's was distinguishable. In

particular, the court noted that the evidence showed that Humboldt

had routinely demanded payment of the loss of discount penalty and

had not waited two to four years to make its first demand for payment.

Insofar as waiver, estoppel, and laches are possible in the case at

bar,21 we believe that there is a genuine issue of material fact as to

_________________________________________________________________

21 We affirm the district court on this issue as regards the six bills that

were governed by the filed rate doctrine (invoices 1-6 on the Past Due

 23
whether they apply. The crucial questions for these claims are the crucial questions for the case as a whole -- did Humboldt actually send

out late payment notices and did these notices contain newly calculated charges reflecting the loss of discount. Because the bankruptcy

court's rejection of those defenses was contingent upon its erroneous

conclusion that there was no genuine issue of material fact as regards

these crucial questions, we reverse and remand, pending resolution of

the factual issues.

VI.

Wise claims that the Negotiated Rates Act of 1993, Pub. L. 103-

180, 107 Stat. 2044 ("NRA"), is applicable to the case at bar. The

NRA would provide Wise with several affirmative defenses if it were

applicable -- a small business exemption from paying Humboldt's

additional charges, see 49 U.S.C.A. § 13709(h) (West 1997); certain

statutory settlement options, see 49 U.S.C.A. § 13709(b) (West 1997);

and a per se "unreasonable practice" defense, see 49 U.S.C.A.

§ 13711(a) (West 1997 & Supp. 1999).22

Some background information on the NRA is helpful. See

generally In re Bulldog Trucking, Inc., 66 F.3d 1390 (4th Cir. 1995).

The NRA was passed in the wake of an outbreak of"undercharge"

claims filed by insolvent carriers. Under the Interstate Commerce Act

_________________________________________________________________

Chart, supra). Equitable defenses were not available to prevent collection

of a published tariff under the filed rate doctrine. See Maislin Indus. U.S.,

Inc. v. Primary Steel, Inc., 497 U.S. 116, 126-27 (1990). With the effective date of the Trucking Industry Regulatory Reform Act of 1994

("TIRRA"), the filed rate doctrine was abolished for individually determined rates. See In re Bulldog Trucking, Inc. , 66 F.3d 1390, 1393 n.4

(4th Cir. 1995) (quoting Policy Statement on the Trucking Industry Regulatory Reform Act of 1994, 10 I.C.C.2d 251 (1994)). It stands to reason

that after that time, equitable defenses became available to shippers subject to individually determined rates.

22 Because TIRRA later limited the filed rate doctrine, and the NRA

assumes the existence of the filed rate doctrine, the applicability of the

NRA is relevant only as to the claims that arose before the effective date

of TIRRA (i.e., as to invoices one through six, arising before August 26,

1994).

 24
(ICA), 49 U.S.C. § 10101 et seq., all motor common carriers were

subject to the strict filed rate doctrine. This meant they had to charge,

and shippers had to pay, the officially filed rate in all circumstances.

In the 1980s Congress began to deregulate the trucking industry,

allowing individually negotiated rates. Deregulation did not, however,

repeal the filed rate doctrine. Carriers often failed to file the individually negotiated rates. Numerous bankruptcies accompanied the

deregulation initiatives. Trustees for these bankrupt carriers began to

invoke the filed rate doctrine in suits against shippers who had paid

the individually negotiated, but unfiled rate. The ICC's attempt to

treat such "undercharge"23 claims by carriers as unreasonable practices was rebuffed by the Supreme Court's confirmation of the

supremacy of the filed rate doctrine in Maislin Industries, U.S., Inc.

v. Primary Steel, Inc., 497 U.S. 116 (1990). In response to Maislin,

Congress passed the NRA to combat the undercharge phenomenon.

_________________________________________________________________

23 There is some confusion among the courts as to what constitutes an

"undercharge" dispute. All agree that an undercharge occurs when a carrier ignores the negotiated "off-tariff" rate and seeks to charge the filed

rate. There seems to be some disagreement, however, whether the factual

scenario at bar -- when a carrier seeks to recover late payment penalties

which it allegedly had previously not enforced -- also involves "undercharges." The bankruptcy court held that it did not. This holding may

have been influenced, in part, by the court's erroneous view of the facts

(i.e., by the view that Humboldt had always sought to enforce the late

payment penalties). In any event, several courts have characterized the

situation at bar as one involving "undercharge" claims. See, e.g.,

Transcon Lines, 513 U.S. at 140; Lifschultz Fast Freight, Inc. v. Nat'l

Mfg. Co., 804 F. Supp. 1059, 1060 (N.D. Ill. 1992); Delta Traffic Service, Inc., 730 F. Supp. at 1310. The ICC also calls Humboldt's postbankruptcy late payment collection efforts "undercharges". See, e.g.,

Dillards, Fed. Carr. Cas. ¶ 38,188, 1995 WL 277124. When all is said

and done, whether the case at bar is properly characterized as an "undercharge" action is irrelevant for purposes of the NRA since that word does

not anywhere appear in the text of the statute. While it does appear in the

title section of 49 U.S.C.A. § 13711, "the title of a statute . . . cannot

limit the plain meaning of the text. For interpretive purposes, [it is] of

use only when [it] shed[s] light on some ambiguous word or phrase."

Brotherhood of R.R. Trainmen v. Baltimore & Ohio R. Co., 331 U.S.

519, 528-529 (1947) (citation omitted), quoted in Pa. Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952, 1955 (1998). There is no

ambiguity in the text of § 13711.

 25
Given this background, the courts below held that the Negotiated

Rates Act, as evident from its title and the purpose for which it was

passed, applied only to situations in which the motor carrier and the

customer negotiated a rate inconsistent with the filed tariff. All agree

that the present case does not involve "off-tariff" negotiated rates.

Humboldt is not now seeking to charge Wise a higher, filed tariff rate

in contravention of a negotiated, unfiled rate. Instead, Humboldt is

merely seeking to enforce late payment provisions that have always

been included in its filed tariff.

Although we do not agree with every aspect of the reasoning of the

courts below, we do agree that, at least as to the per se unreasonable

practice defense and the statutory settlement provisions, by its plain

terms the NRA does not apply to the factual scenario at bar. Both of

these provisions can only apply if the case involves rates which have

been specifically negotiated and which are different from the filed tariff rate. See 49 U.S.C.A. § 13709(a)(1)(B) (West 1997 & Supp. 1999)

(requiring defendant to show she was offered a rate other than that

legally on file); 49 U.S.C.A. § 13711(a) and (f) (unreasonable practice

to charge the difference between legally applicable rate and the "negotiated rate"). There are no such negotiated rates in the case at bar.

Under the simple terms of the statutory subsection, the small business exception of the NRA could still be applicable. See 49 U.S.C.A.

§ 13709(h). That provision only requires that there be a difference

between the carrier's "applicable and effective tariff rate and the rate

originally billed and paid." Id. Arguably, this situation exists in the

case at bar. The small business exception is merely a subsection of

§ 13709, however. As a whole, § 13709 deals only with off-tariff

negotiated rates. Thus, the reference to the "originally billed and paid"

rate in 49 U.S.C.A. § 13709(h) should be read in the context of the

statute as a whole to mean the originally negotiated rate. See, e.g.,

Bennett v. Spear, 520 U.S. 154, 174 (1997) (subsection should be

interpreted in context of entire statute); Branch Banking & Trust Co.

v. Fed. Deposit Ins. Corp., 172 F.3d 317, 326 (4th Cir. 1999) (court

interprets statutory language in broader context of statute as a whole).

Wise cites to legislative history indicating, and several cases and

administrative actions in which the ICC apparently held, that the

NRA unreasonable practice defense, 49 U.S.C.A. § 13711(a), was

 26
applicable to loss of discount cases like the one at bar. These sources

do not change our holding. In general, legislative history only comes

into play where there is an ambiguity in the statutory language. See,

e.g., Connecticut National Bank v. Germain , 503 U.S. 249, 253

(1992) ("When the words of a statute are unambiguous, then, this first

canon is also the last: `judicial inquiry is complete.'"). Similarly,

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), courts engage in a two-step analysis to

evaluate agency interpretations of statutes. Under the first step, a

court must determine whether the statute is ambiguous on the issue:

"the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron , 467 U.S. at 842-43.

Here, there is no ambiguity in the text of the statute to justify the

ICC's position or a turn to legislative history.

Therefore, we affirm the district court's conclusion that the cited

portions of the NRA do not, by their terms, apply to the case at bar.

Under identical reasoning, we also affirm the district court's holding

that Wise may not seek referral to the Surface Transportation Board

based on the aforementioned provisions of the NRA.

VII.24

_________________________________________________________________

24 The bankruptcy court found that Wise had waived the right to challenge the applicability of the late payment fees for shipments moving

after August 25, 1994 (invoices 7-15 on the Past Due Chart, supra). The

court found (1) that Wise had only 180-days after receipt of the bill to

challenge these fees under 49 U.S.C.A. § 13710(a)(3)(B) (West 1997),

and (2) it was undisputed that 180 days had passed since the original bills

and subsequent Past Due bills were received by Wise at the time of the

bankruptcy hearing. Because we reject the court's view that this latter

fact is undisputed, we also reject the court's application of the 180 day

limit. There is a genuine issue of material fact whether Wise ever

received the original bills and/or Past Due bills which included the late

payment penalty. Clearly Wise could not challenge imposition of the late

payment penalties if they had never been imposed. This is an issue that

must be resolved at trial. See also National Association of Freight Transportation Consultants, Inc. -- Petition for Declaratory Order, Docket

No. 41826, 1997 Fed. Carr. Cas. (CCH) ¶ 38,308, pp. 48,130-131 (STB

April 21, 1997) (shipper may still raise defenses to action to collect damages even after 180 day period has expired; 180 day period only applies

to actions initiated by shippers).

 27
Finally, Wise contends that several of Humboldt's claims are

barred by the statute of limitations imposed by the Interstate Commerce Commission Termination Act ("ICCTA"), Pub. L. No. 104-88,

109 Stat. 803, effective January 1, 1996.

Once again, some background is helpful to resolution of this issue.

The NRA established three statutes of limitations periods relating to

claims for transportation charges. The NRA explicitly preserved the

three year limitations period for transportation services performed

prior to its effective date. NRA § 3(a), codified at former 49 U.S.C.

§ 11706(a). None of the shipments at issue occurred during that time.

It changed to two years the statute of limitations relating to transportation services provided between December 3, 1993 through December 2, 1994. NRA § 3(a)(1). Eight of fifteen shipments occurred

within this time period (invoices 1-8). The NRA also changed to 18

months the statute of limitations for claims relating to transportation

services provided after December 2, 1994. NRA § 3(a)(2).

The ICCTA once again altered the statute of limitations on all

actions relating to transportation services, making it 18 months. Wise

argues that the ICCTA's statute of limitations was immediately effective as against all claims. Thus, six of Humboldt's fifteen claims

(claims 1-6, originating prior to August 7, 1994) 25 are untimely under

49 U.S.C.A. § 14705(a) & (g) (West 1997). To make Wise's position

clear, under its theory, actions which would have been timely before

passage of the ICCTA (because of the two-year statute of limitations

preserved under the NRA) are time barred after its passage (because

of the 18 month statute of limitations under the ICCTA).

The bankruptcy and district courts rejected Wise's position. The

courts were persuaded principally by the constitutional concerns that

would be associated with a retroactive reduction in the statute of limi-

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25 Because Humboldt filed for bankruptcy, it had a two year extension

of time in which to commence an action that otherwise would have been

timely had the debtor filed suit on the date when its petition in bankruptcy was filed. 11 U.S.C.A. § 108(a) (West 1993). For purposes of calculating the statute of limitations in this matter, the date on which

Humboldt filed its petition in bankruptcy, i.e. , February 7, 1996, was the

operative date.

 28
tations. See Landgraf v. USI Film Products, 511 U.S. 244, 272

(1994); Bowen v. Georgetown University Hosp., 488 U.S. 204, 208

(1988); Chenault v. U.S. Postal Serv., 37 F.3d 535, 539 (9th Cir.

1994) ("A newly enacted statute that shortens the applicable statute

of limitations may not be applied retroactively to bar a plaintiff's

claim that might otherwise be brought under the old statutory scheme

because to do so would be manifestly unjust."). Cf. also Saint Francis

College v. Al-Khazraji, 481 U.S. 604, 608-09 (1987) (noting manifestly inequitable result of retroactive change in statute of limitations).

Under Landgraf, there is a presumption against retroactivity when a

statute would impair rights existing prior to the passage of the legislation; for such a statute to be given retroactive effect, it must contain

explicit language of retroactivity.26 Landgraf, 511 U.S. at 280. The

courts found that the ICCTA contained no express language and indicated no clear intention to retroactively alter the limitations period for

claims which would have been valid under the NRA. Therefore, the

courts concluded that the ICCTA limitations period only operates prospectively.

On that point we affirm the courts below. In the ICCTA, Congress

did not speak with the clarity required by Landgraf retroactively to

cancel previously valid claims. Accordingly, Humboldt's claims are

timely.

VIII.

To conclude this complicated case, we hold that Humboldt's suit

to collect its disputed late payment penalties is a non-core proceeding.

We hold, as well, that it was inappropriate for the district court and

the bankruptcy court to grant summary judgment when there were

genuine issues of material fact. Wise presented ample evidence creating material uncertainties with regard to Humboldt's compliance with

the requirements of 49 C.F.R. part 1320.2(g). Specifically, Wise presented evidence calling into question whether Humboldt ever presented Wise with original bills for most of the claims, whether Hum-

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26 Under Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2063-64

(1997), a court should also examine the statute to see if, under normal

rules of statutory interpretation, the possibility of retroactive effect is

removed.

 29
boldt ever presented Wise with Past Due bills for most of the claims,

and whether Humboldt ever sought to collect late payment penalties

for most of the claims. Wise's evidence was sufficient to call into

question the validity of Humboldt's post hoc virtual recreations of its

billing practices. We also find that Wise presented evidence sufficient

to create a genuine issue of material fact as to whether some of Humboldt's claims may be subject to equitable defenses and/or a defense

of unreasonableness. We reverse and remand for resolution of each of

the above issues. We affirm the district court's holding that the portions of the Negotiated Rates Act invoked by Wise are not applicable

to the case at bar. We also affirm the holding that the ICCTA's new

statute of limitations does not serve to retroactively bar Humboldt's

formerly valid claims. In all other respects we affirm the district

court. The case accordingly is

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

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