In re Burns

566 B.R. 918, 2017 Bankr. LEXIS 1197
CourtUnited States Bankruptcy Court, N.D. Indiana
DecidedApril 17, 2017
DocketCASE NO. 15-12794
StatusPublished
Cited by3 cases

This text of 566 B.R. 918 (In re Burns) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Burns, 566 B.R. 918, 2017 Bankr. LEXIS 1197 (Ind. 2017).

Opinion

DECISION

Robert E. Grant, Chief Judge

On April 17, 2017.

Some years ago, this court observed:

There is just no good substitute for a proof of claim. By comparison to that clear and relatively simple demonstration that a pre-petition creditor should share in a distribution by the bankruptcy trustee, all arguments for some type of effective alternative finish, if at all, a distant second. Matter of Baldridge, 232 B.R. 394, 394 (Bankr. N.D. Ind. 1999).

In the present case, the court considers another alternative to a timely claim: whether some type of agreement or mutual desire between a debtor and a secured creditor can obviate the need for any claim whatsoever. See, In re Hrubec, 544 B.R. 397 (Bankr. N.D. Ill. 2016).

The debtors proposed, and the court confirmed, a chapter 13 plan that provides for the full payment, with interest, of secured claims held by the Fire Police City County Federal Credit Union on account [920]*920of the credit union’s liens against the debtors’ two motor vehicles. Unfortunately, the creditor failed to file a proof of claim within the time required and neither did the debtors.1 After both deadlines had comfortably expired, the trustee filed motions for post confirmation modification, proposing to take the funds the plan allocated to the credit union’s secured claims and distribute them to unsecured creditors. The debtors objected to the trustee’s motions. They also filed belated claims on the credit union’s behalf, to which the trustee objected as untimely. In the midst of this back and forth, the credit union finally became involved and filed belated objections to the motions to modify. The issues raised by the objections to the trustee’s motions to modify the plan and the objections to the claims the debtors filed on behalf of the credit union have been submitted to the court on the parties’ stipulations of fact and the briefs of counsel.

There is no dispute that all concerned received appropriate notice of the claims bar date, that the credit union failed to file a claim, or that the claims the debtors filed on its behalf were late. Despite § 502(b)(9), which states that late claims are denied, 11 U.S.C. § 502(b)(9), the debtors and the creditor argue that because they both want the credit union’s secured claims to be paid in accordance with the terms of the confirmed plan, no claim of any kind was needed in order for that to happen; so timeliness should not matter. The argument is based upon In re Hrubec, 544 B.R. 397 (Bankr. N.D. Ill. 2016), which held that “filing of a proof of claim was unnecessary and the filing deadline is therefore irrelevant” when a debtor “proposes a plan that includes payments to a secured creditor, and the creditor has no objection to its treatment under the proposed plan.” Hrubec, 544 B.R. at 401. The argument and the authority upon which it is based could not be more wrong.2 See, In re Heft, 564 B.R. 389 (Bankr. C.D. Ill. 2017).

Hrubec begins by dismissing the Seventh Circuit’s statement in Pajian — “A creditor must file a proof of claim in order to participate in Chapter 13 plan distributions,” In re Pajian, 785 F.3d 1161, 1163 (7th Cir. 2015) — as dictum and then ignores the circuit’s earlier decision in Matter of Greenig, 152 F.3d 631 (7th Cir. 1998), which severely limited the court’s authority regarding untimely claims, in order to craft an unnecessary solution to a problem the Bankruptcy Code and Rules already address — a secured creditor’s failure to file a proof of claim.

In Pajian, the court confronted the issue of whether secured creditors were required to file claims by the bar date. It concluded that they were and if objected to “the court must disallow” the untimely claim. Pajian, 785 F.3d at 1163. It began its analysis with the statement Hrubec so casually dismisses: “A creditor must file a proof of claim in order to participate, in [921]*921Chapter 13 plan distributions.” Id. Rather than being dictum, that statement was the foundation of the court’s analysis. There is no reason to consider whether a secured creditor must file a claim by the bar date if there are circumstances under which it need not file at all. The circuit also noted that the Bankruptcy Rule which establishes the claims bar date, Fed. R. Bankr. P. Rule 3002(c)(2), mentions six exceptions to that deadline (none of which applied), id., and those exceptions do not include some type of agreement between the debt- or and the creditor or the provisions of a proposed plan.3

Pajian is completely consistent with the circuit’s earlier decision in Matter of Greenig, 152 F.3d 631, 634 (7th Cir. 1998) (“§ 502(b)(9) bars untimely proofs of claims where none of the 3002(c) exceptions apply”), a decision Hrubec never mentions.4 As here, Greenig involved the impact of plan provisions upon the claims bar date. There a Chapter 12 debtor’s proposed plan recognized United Feeds as “an unsecured creditor holding an allowed claim” which would receive payments from the debtors in accordance with an attached schedule that included United. Id. at 632. Relying on the fact that it was listed in the confirmed plan as having an allowed claim, United Feeds did not file a claim within the time required. Id. at 632. In appealing the district court’s decision that its late claim should be denied, United argued that the binding effect of the confirmed plan which provided for payments on account of its claim excused the late filing. The court of appeals rejected the argument. It held that the bankruptcy court lacked equitable authority to allow a late claim and so had acted improperly when it allowed equitable considerations to circumvent the requirements of Rule 3002(c). Id., at 635. If actual reliance upon the provisions of a confirmed plan, which is binding upon both debtors and creditors, will not salvage a late claim, it is difficult to see how the provisions of a plan the debtor hopes to confirm can dispense with one altogether.

Pajian makes clear that the same rules apply to both secured and unsecured creditors when it comes to filing claims. Pajian, 785 F.3d at 1164. They are bound by the same filing deadline and the court has no equitable power to excuse untimely claims because of equitable considerations. Yet, that is precisely what Hrubec did when it concluded that a claim was unnecessary and the bar date irrelevant: it allowed equitable considerations to circumvent that deadline. Not only is that contrary to circuit precedent, but approving “side deals” that exempt some creditors from rules others must observe risks undermining confidence in the bankruptcy process. See, Matter of Barnes, 969 F.2d 526, 529-30 (7th Cir. 1992); In re Brooks, 370 B.R. 194, 203 (Bankr. C.D. Ill. 2007) (“any erosion of the strict enforcement of the claim bar date would be unfair to those creditors who follow the rules and would also tend to ... increase late claim litigation.”).

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566 B.R. 918, 2017 Bankr. LEXIS 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-burns-innb-2017.