                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                UNITED STATES COURT OF APPEALS                            APR 14 2004
                         TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


 IN RE: MICHAEL CHARLES SCHICKE,

      Debtor.
 __________________________

 CHANUTE PRODUCTION CREDIT
 ASSOCIATION,                                             No. 03-3114
                                                     (BAP No. KS-01-089)
          Appellant,                                (U.S. Bankr. App. Panel)

 v.

 MICHAEL CHARLES SCHICKE,

          Appellee.



                       ORDER AND JUDGMENT *


Before SEYMOUR, HENRY and 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, Mr. Schicke filed a petition for

relief under Chapter 7 of the Bankruptcy Code, listing CPCA as a creditor holding

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
an unsecured, nonpriority claim in the amount of the 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 filed a Motion to Reopen in the

bankruptcy court claiming it received no Notice of Commencement of Case. The

bankruptcy court denied the motion. The bankruptcy appellate panel upheld the

denial. Chanute Prod. Credit Assoc. v. Schicke (In re Schicke), 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 record in the Kansas state court

fraud action failed to comport with the minimum requirements of due process.

The Supreme Court has held that the “practicalities and peculiarities” of each case

must be considered in assessing a due process challenge, Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), so the facts surrounding

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 proving clear error. Id. We

therefore begin by summarizing the bankruptcy court’s factual findings as to

notice.


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      In the 1984 state court action against Mr. Schicke, attorney William

Coombs of Chanute, Kansas represented CPCA. In 1989, Mr. Coombs developed

cancer and CPCA retained attorney Frank Beyerl to maintain its judgment against

Mr. Schicke. In July 1991, Mr. Beyerl filed a praecipe of execution so as to

sustain the vitality of the judgment, and Mr. Coombs entered a similar praecipe

later that year. Both Mr. Coombs and Mr. Beyerl continued to represent CPCA in

the Schicke matter until November 1995, when Mr. Beyerl 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 that time practicing

independently. Mr. Pringle never entered an appearance on CPCA’s behalf in the

Kansas state court proceeding. CPCA’s last attorney 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] general counsel.” Aplt. App. at

99.

      In the years between CPCA’s fraud action and Mr. Schicke’s March 1996

filing for Chapter 7 relief, CPCA was known by several names. The entity

referred to itself variously as Chanute Production Credit Association, Farm Credit

Services, Federal Land Bank Association, and Frontier Farm Credit. Mr. Schicke,

however, knew the bank only as Chanute Production Credit Association. At the

time Mr. Schicke filed his bankruptcy proceeding, the name Chanute Production


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Credit Association did not appear in the Chanute, Kansas phonebook, nor was the

bank registered as a corporation with the Kansas Secretary of State. The only

address provided by CPCA in the 1984 fraud proceedings was that of its attorney,

Mr. Coombs, at a Chanute, Kansas post office box held by the firm of Coombs &

Hull. Mr. Schicke therefore listed CPCA in Schedule 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 denied receiving actual

notice of the commencement of bankruptcy proceedings, it admitted receiving the

discharge notice sent to the same address. After an evidentiary hearing, the

bankruptcy court found that the law office of Coombs & Hull had received the

commencement notice as well. Although the burden of 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 attorney 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 CPCA’s failure to present such

evidence, and concluded that CPCA had received actual notice of Mr. Schicke’s

bankruptcy proceedings. Specifically, the court found:

                                         -4-
      That the bankruptcy of a notorious borrower whose liability exceeded
      $1.0 million at the time of his filing and who listed the [CPCA] in
      care of the lawyers who had acted to collect the judgment for several
      years and still represented the [CPCA] on other matters never came
      to the [CPCA’s] attention is not likely. In the absence of any
      affirmative testimony by Hull that the law firm did not 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 case 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 sufficient notwithstanding failure to

receive formal notice); In re Green, 876 F.2d at 857 (same).

      “An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice 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, 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 did not appear in the Chanute,

Kansas phonebook. Id. at 155-56. However, the law office of Coombs & Hull,

which the bankruptcy court concluded received Mr. Schicke’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 against Mr. Schicke. “[N]otice

to a creditor’s attorney . . . is ordinarily considered sufficient if the attorney


                                           -5-
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 creditor 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 that Mr. Schicke’s serving

notice on CPCA via its counsel at the only address CPCA had provided in the

earlier fraud action was “reasonably calculated” under 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




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