
USCA1 Opinion

	




          June 18, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1007                                    ROGER S. DAVIS,                                      Appellant,                                          v.                     HAROLD BROWN, D/B/A HAMILTON REALTY COMPANY,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Roger S. Davis and Davis & Rubin, on brief pro se.            ______________     _____________            Robert  Somma, David J.  Reier and  Goldstein &  Manello, P.C., on            _____________  _______________      __________________________        brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Appellant-claimant Roger S. Davis  appeals                 __________            pro se from the district court's affirmance of the bankruptcy            ___ __            court's denial  of his  motion to reconsider  disallowance of            his claim against  the appellee-debtor, Harold  Brown, D/B/A/            Hamilton Realty Co. ("Brown").   "We independently review the            bankruptcy court's  decision, applying the  clearly erroneous            standard to its findings  of fact and  de novo review to  its                                                   __ ____            conclusions  of law." Jeffrey  v. Desmond,  70 F.3d  183, 185                                  _______     _______            (1st Cir. 1995).                 "A  denial  of  receipt   is  insufficient  to  rebut  a            presumption that proper notice was given, but it does raise a            factual issue." In re Eagle Bus Mfg., Inc., 62  F.3d 730, 735                            __________________________            (5th Cir.  1995); see also In  re Bucknum, 951  F.2d 204, 207                              ___ ____ ______________            (9th Cir. 1991); In  re Longardner & Assocs., Inc.,  855 F.2d                             _________________________________            455, 459 (7th Cir. 1988), cert. denied, 489 U.S. 1015 (1989);                                      ____________            In  re Northeast  Office &  Commercial Properties,  Inc., 178            ________________________________________________________            B.R. 915, 918 n.1 (Bankr. D. Mass. 1995); but see In re Yoder                                                      ___ ___ ___________            Co.,  758  F.2d  1114,  1118  (6th  Cir.  1985)(holding  that            ___            testimony of nonreceipt standing alone is sufficient to rebut            the presumption of receipt).                 In response to Davis'  denial of receipt, the bankruptcy            court properly addressed the  factual question of whether the            notices  were properly  mailed.   The  court  found that  "an            independent  mailing agency was used, using  the matrix.  The            address is correct.  . . .  I assure you  that lots of  other                                         -2-            people  got those  notices.  . .  ."  On the  basis of  those            findings, which are not disputed by Davis, it was not clearly            erroneous for the district court to conclude that the notices            were properly mailed.  See Eagle Bus Mfg., 62 F.3d  at 735-36                                   ___ ______________            ("To determine if  a mailing was accomplished  the courts may            consider whether the notice  was correctly addressed, whether            proper postage  was affixed, whether it  was properly mailed,            and  whether a  proper  certificate of  service was  filed").            Accordingly, the  bankruptcy court did not err in ruling that            Davis failed to rebut the presumption that he received notice            of  the  objections  to his  claim  and  the  hearing on  the            objections.  There was no due process violation.                   The  bankruptcy  court's  denial of  Davis'  motion  for            reconsideration is affirmed.                               ________                                         -3-
