IN RE BERRY GOOD, LLC (Bankr.D.Ariz. 10-8-2009)

JAMES MARLAR, Bankruptcy Judge

The issue before the court today is whether to approve an "informal claim" asserted by creditor Steven Roddy against the estates of Beaudry RV Company and Beaudry RV Mesa, Inc.

Mr. Roddy relies exclusively on one case from the Ninth Circuit, which he maintains supports his argument. In re Pizza of Hawaii, Inc., 761 F.2d 1374 (9th Cir. 1985).

The difficulty with Mr. Roddy's argument, and the critical distinction is that Mr. Roddy never filed, prior to the instant motion, any document nor pointed to any pleading or other claim filed in the bankruptcy proceedings. Nor was there any civil action pending, even in the District Court. Mr. Roddy's only argument is that he had filed a state court civil action for damages prior to the bankruptcy case. Mr. Roddy never appeared in bankruptcy court, nor participated in any manner. In the Pizza case, creditor Shakey's filed numerous documents with the bankruptcy court, participated in several legal matters within that case, and made its claims generally known, through such participation. And, Shakey's had previously filed an action in the federal U.S. District Court.

When the issues in the Pizza case reached the Ninth Circuit, the court held that it applied a liberal standard to such "informal proofs of claim," and allowed it because of all the actual notice given to the debtor of the existence of the claim — in the bankruptcy itself — by the creditor Shakey's.

Mr. Roddy points to no fact which shows any appearance in the bankruptcy court which would support such an argument.

This, then, raises a fact issue as to whether Mr. Roddy had actual notice of the bankruptcy case in time to file a claim. If he had, he would have a duty to file a claim — formal or informal — with the bankruptcy court. All that Mr. Roddy points to, to allege "no knowledge," is a wrong address and the affidavit of his attorney that the attorney did not receive notice. No party, Mr. Roddy nor his attorney, states under oath that they were unaware of the filing of the bankruptcy case on November 17, 2008.

Nor does Mr. Roddy and his attorney argue or assert that they never had actual notice of the case prior to the expiration of the claims deadline of March 4, 2009 (DN 181, entered January 27, 2009). See FED. R. BANKR. P. 3003. The issue of actual knowledge is critical to the legal consequence of whether the Roddy claim is dischargeable in the case. See 11 U.S.C. § 523(a)(3).

For all of these reasons, then, Steven Roddy's "Motion to Recognize Proof of Claim as Timely Filed" will be DENIED.