UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: CLOCK TOWER PLACE

INVESTMENTS, LIMITED, a California

corporation; LANDMARK LAND

COMPANY OF CAROLINA, INCORPORATED, a

Delaware corporation; LANDMARK LAND

COMPANY OF OKLAHOMA, INCORPORATED,

an Oklahoma corporation; LANDMARK

LAND COMPANY OF FLORIDA,

INCORPORATED, a Delaware corporation;

LANDMARK LAND COMPANY OF

LOUISIANA, INCORPORATED, a Louisiana

corporation; LANDMARK LAND

COMPANY OF CALIFORNIA, INCORPORATED,

a Delaware corporation,

Debtors.

No. 98-2061

GLORIA ROBINSON, as Plan

Administrator of the Landmark

Insurance Group Plan and Landmark

501(c)(9) Trust Agreement for the

Landmark GroupAND as a participant

of the Landmark Group Insurance

Program and the 501(c)(9) Trust

Agreement for the Landmark Group;

MICHAEL WELCH, Trustee of the

501(c)(9) Trust Agreement for the

Landmark GroupAND as a Participant

of the Landmark Group Insurance

Program and the 501(c)(9) Trust

Agreement for the Landmark Group;
V. JACKSON CARNEY, as Trustee for the

Landmark GroupAND as a participant

of the Landmark Group Insurance

Program 501(c)(9) Trust Agreement

for the Landmark GroupAND as

persons entitled to receive benefits

under the Landmark 501(c)(9) Trust,

Plaintiffs-Appellants,

v.

CLOCK TOWER PLACE INVESTMENTS,

LIMITED; RESOLUTION TRUST

CORPORATION, as Conservator for Oak

Tree Federal Savings Bank in

Receivership and its successor the

FEDERAL DEPOSIT INSURANCE

CORPORATION; LANDMARK LAND

COMPANY OF FLORIDA, INCORPORATED;

LANDMARK LAND COMPANY OF

OKLAHOMA, INCORPORATED; LANDMARK

LAND COMPANY OF CAROLINA,

INCORPORATED; LANDMARK LAND

COMPANY OF LOUISIANA, INCORPORATED;

LANDMARK LAND COMPANY OF

CALIFORNIA, INCORPORATED; NORTHERN

CALIFORNIA RANCH, INCORPORATED,

formerly known as Carmel Valley

Ranch,

Defendants-Appellees,

v.

TRUST AGREEMENT FOR THE LANDMARK

GROUP, V. Jackson Carney, Gloria

Robinson and Michael Welch are

trustees/administrators of the "Trust",

Third Party Defendant.

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Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Falcon B. Hawkins, Chief District Judge.

(CA-95-4005-2-1, CA-91-3286-2-1, CA-91-3291-2-1,

CA-91-3290-2-1, CA-91-3289-2-1, CA-91-3288-2-1,

CA-96-3522-2-1, BK-91-5814, BK-91-5815, BK-91-5816,

BK-91-5817, BK-91-5819, BK-91-5818)

Argued: January 29, 1999

Decided: March 29, 1999

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Henry Blanton Brown, H. BLANTON BROWN &

ASSOCIATES, Oklahoma City, Oklahoma, for Appellants. Daniel

Glann Lonergan, FEDERAL DEPOSIT INSURANCE CORPORATION, Washington, D.C., for Appellees. ON BRIEF: Thomas S. Tisdale, Jr., Stephen P. Groves, Sr., YOUNG, CLEMENT, RIVERS &

TISDALE, L.L.P., Charleston, South Carolina; Gerald P. Green, Paul

G. Summars, PIERCE, COUCH, HENDRICKSON, BAYSINGER &

GREEN, Oklahoma City, Oklahoma, for Appellants. Ann S. DuRoss,

Assistant General Counsel, Lawrence H. Richmond, Acting Senior

Counsel, FEDERAL DEPOSIT INSURANCE CORPORATION,

Washington, D.C.; Rex Veal, G. Patrick Watson, POWELL, GOLDSTEIN, FRAZER & MURPHY, Atlanta, Georgia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The plaintiffs-appellants (the "Claimants") in this case sought to

file an untimely administrative claim and proof of claim against a

bankruptcy estate. The district court denied the motion to file these

claims, finding the claims to be time barred. The court rejected the

Claimants' contention that the late filing was due to excusable

neglect. The court also held that the Claimants failed to set forth a

valid administrative claim under § 503(b) of the Bankruptcy Code, 11

U.S.C. § 503(b) (1994). We affirm because the claims were time

barred and the district court did not abuse its discretion in refusing to

accept the late filing. We therefore do not reach the question of

whether the Claimants stated a valid administrative claim.

I.

The Claimants, Gloria Robinson, V. Jackson Carney, and Michael

Welch, were participants in an employee welfare benefit plan (the

"Plan") established by the Landmark companies. The Landmark companies developed, owned, and managed a large portfolio of residential

resort communities. Clock Tower Place Investments, Ltd. ("Clock

Tower") was a holding company for the Landmark companies, and

Oak Tree Savings Bank ("Oak Tree") was the sole owner of Clock

Tower.

In October 1991 Clock Tower and its subsidiaries (collectively, the

"Debtors") petitioned for Chapter 11 relief. Immediately following the

bankruptcy of the Debtors, the Office of Thrift Supervision placed

Oak Tree in receivership and appointed the Resolution Trust Corporation ("RTC") as its receiver. Upon the dissolution of the RTC, the

FDIC took its place. Thus the FDIC now controls Oak Tree and all

its subsidiaries, including Clock Tower.

In order to ensure adequate funding after bankruptcy for the (benefits) Plan, a voluntary employees' beneficiary association trust (the

"Trust") was created in accordance with 26 U.S.C. § 501(c)(9) (1994).

The Trust Agreement provides that no funds may "be used for, or

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diverted to, purposes other than to provide the benefits contemplated

under the Plan for the exclusive benefit of covered employees and

their dependents, except [taxes and administrative expenses]." However, between 1988 and 1994 the Plan paid more than $900,000 of

medical benefits to certain non-employees, including independent

contractor golf pros. The benefits were paid because of misrepresentations by former Landmark corporate officers and Plan fiduciaries. The

Claimants assert that counsel for Clock Tower told them that unless

the Trust was reimbursed for these improper payments, it could lose

its tax-exempt status.

In December 1995 the Claimants commenced an adversary proceeding against Clock Tower, the Landmark companies, the RTC, and

the FDIC. They alleged breaches of fiduciary duties under ERISA and

sought reimbursement for payments improperly made from the Plan.

The district court dismissed that action for lack of subject matter

jurisdiction.

On April 5, 1996, the Claimants moved to file an administrative

claim and proof of claim with the district court, seeking $2,100,000

from the Debtors. The court denied these claims, finding them to be

time barred. The bar date for filing a proof of claim was March 16,

1992. The bar date for administrative claims was May 22, 1993. The

court rejected the Claimants' assertion that their failure to file a

timely claim was the result of "excusable neglect." The district court

also ruled on the merits on one issue, finding that the Claimants failed

to present a valid administrative claim under § 503(b) of the Bankruptcy Code. The Claimants appeal.1

II.

It is undisputed that the Claimants sought to file their claims long

after the bar dates established by the district court. Claimants nonetheless contend that they were denied due process because they were

not given notice of the bankruptcy. Alternatively, they argue that the

late filing was the result of excusable neglect.

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1 The Claimants have moved to supplement the Joint Appendix. We

grant this motion.

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Due process requires notice that is "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."

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

(1950); Spartan Mills v. Bank of America Illinois, 112 F.3d 1251,

1257 (4th Cir.), cert. denied, 118 S. Ct. 417 (1997). The district court

found that "[w]hile [the Claimants] may not have received actual

notice, they certainly had constructive notice of the bankruptcy and

bar date." It explained that each of the Claimants was either employed

by or affiliated with the Debtors. Furthermore, claimant Robinson had

stated that she knew of the potential claims even before the bankruptcies. We agree that the Claimants had adequate notice.

As to excusable neglect, Bankruptcy Rule 9006(b)(1) permits a

court to allow untimely claims if the failure to file was the result of

"excusable neglect."2 We review the district court's refusal to find

excusable neglect for abuse of discretion. Heyman v. M.L. Marketing

Co., 116 F.3d 91, 96 (4th Cir. 1997).

The determination of excusable neglect "is at bottom an equitable

one, taking account of all relevant circumstances surrounding the

party's omission. These include . . . the danger of prejudice to the

debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the

reasonable control of the movant, and whether the movant acted in

good faith." Pioneer Investment Services Co. v. Brunswick Assocs.

Ltd. Partnership, 507 U.S. 380, 395 (1993).

The district court applied this analytical framework and concluded

that there was no excusable neglect. It explained that allowing the late

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2 Bankruptcy Rule 9006(b)(1) states:

[W]hen an act is required or allowed to be done at or within a

specified period by these rules or by a notice given thereunder

or by order of court, the court for cause shown may at any time

in its discretion . . . on motion made after the expiration of the

specified period permit the act to be done where the failure to act

was the result of excusable neglect.

Fed. R. Bankr. Proc. 9006(b)(1).

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claim would hinder the administration of the bankruptcy estate and

would prejudice the Debtors and their last remaining creditor, the

FDIC. It noted that this case had been before the court for many years

and that the Debtors had already sold all but one of their assets and

made distributions (under the reorganization plan) to most creditors.

It also suggested that the Claimants "have not acted entirely in good

faith." It explained that instead of initially filing a proof of claim, the

Claimants commenced an adversary proceeding. They only sought to

file a proof of claim after their identical claims in the adversary proceeding were dismissed for lack of jurisdiction. Based on this reasoning, the district court did not abuse its discretion in refusing to find

excusable neglect.

Because we agree that the claims were time barred, we do not reach

the question of whether the Claimants presented a valid administrative claim under § 503(b) of the Bankruptcy Code.

The judgment of the district court is therefore

AFFIRMED.

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