In re Dumain

492 B.R. 140, 69 Collier Bankr. Cas. 2d 1076, 2013 WL 1890256, 2013 Bankr. LEXIS 1906
CourtUnited States Bankruptcy Court, S.D. New York
DecidedMay 8, 2013
DocketNo. 11-37183 (cgm)
StatusPublished
Cited by19 cases

This text of 492 B.R. 140 (In re Dumain) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dumain, 492 B.R. 140, 69 Collier Bankr. Cas. 2d 1076, 2013 WL 1890256, 2013 Bankr. LEXIS 1906 (N.Y. 2013).

Opinion

MEMORANDUM DECISION DISALLOWING CLAIM AS LATE-FILED

CECELIA G. MORRIS, Chief Judge.

Debtor objects to the secured claim of Bank of America, N.A., alleging that the claim should be disallowed as late-filed. The Court holds that the Creditor was required to comply with the claims bar date1 imposed by Federal Rule of Bankruptcy Procedure 3002(c) and disallows the claim for failure to do so.

Jurisdiction

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a) and the Amended Standing Order of Reference signed by Chief Judge Loretta A. Preska dated January 31, 2012. This is a “core proceeding” under 28 U.S.C. § 157(b)(2)(A) (matters concerning the administration of the estate).

[142]*142 Background

The Debtor objects to claim number 12-1, a secured claim filed by Bank of America, N.A. (“Creditor”). Dr’s Obj. 1, ECF No. 57. Debtor asserts that the claim should be disallowed as a consequence of Creditor’s failure to file its claim prior to the claims bar date. Id. Creditor’s proof of claim was filed on April 19, 2012 in the amount of $357,751.50, and included mortgage arrears of $4,093.45. Id. The first section 341 meeting of creditors was scheduled for August 24, 2011. Notice of 341(a) 1, ECF No. 7. The claims bar date was November 22, 2011 pursuant to Bankruptcy Rule 3002(c),2 which states that “[i]n a chapter 7 liquidation, chapter 12 family farmer’s debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.... ” Debtor argues that the claim should be disallowed pursuant to section 502(b)(9),3 which provides for the disallowance of untimely claims.

Creditor opposes the objection, arguing that secured creditors need not file proofs of claim in chapter 13 cases pursuant to Bankruptcy Rule 3002(a). Cr’s Opposition 2, ECF No. 59. Bankruptcy Rule 3002(a) states that “[a]n unsecured creditor or an equity holder must file a proof of claim or interest for the claim to be allowed except as provided in Rules 1019(3), 3003, 3004, and 3005.” Id. Creditor argues that Bankruptcy Rule 3002(a) only mentions unsecured creditors and equity holders; therefore, secured creditors need not file proofs of claim in chapter 13 cases. Id. Creditor also argues that the omission of secured creditors from Bankruptcy Rule 3002(a) means that secured creditors need not comply with the bar date imposed by Bankruptcy Rule 3002(c). Id.

Creditor argues that disallowance of the largest secured claim will defeat the rehabilitative purposes of chapter 13. Cr’s Opposition 3, ECF No. 59. Creditor points out that its lien will survive the bankruptcy whether the secured claim is allowed or not. Id. Creditor believes it would be at odds with the purpose of chapter 13 to leave the Debtor with a large unresolved debt upon completion of the case. Id.

In the alternative, Creditor argues that the Debtor acquiesced to the existence of the claim by listing it in her schedules and chapter 13 plan. Cr’s Opp. 4, ECF No. 59. Debtor has filed three proposed plans in this case. The first was filed contemporaneously with the petition on July 29, 2011 and did not list any prepetition debt owed to Creditor. Plan 3, ECF No. 4. An amended plan was filed July 17, 2012, and proposed to treat prepetition arrears to Creditor in the amount of $4,093.45. Amend. Plan 3, ECF No. 35. A second amended plan was filed on September 27, 2012 and did not list any prepetition debt to Creditor. Sec. Amend. Plan 3, ECF No. 42.

Discussion

I. The Creditor must obtain an allowed claim to receive distributions from the chapter 13 plan.

Creditor argues that “[i]n a chapter 13 case, a proof of claim need not be filed by a creditor which is asserting a secured claim.” Cr’s Opp. 2, ECF No. 59. Credi[143]*143tor cites to Bankruptcy Rule 3002(a) in support of its argument, which states:

(a) Necessity FOR Filing. An unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005.

Fed. R. Bankr.P. 3002(a). Bankruptcy Rule 3002(a) mentions only unsecured creditors and equity holders, not secured creditors. On its face, Bankruptcy Rule 3002(a) seems to suggest that secured creditors need not, file proofs of claim. This reading of Bankruptcy Rule 3002(a) is inconsistent with sections 501, 502, 1326(c), and with Bankruptcy Rule 3021. In re Hogan, 346 B.R. 715, 719 (Bankr.N.D.Tex.2006).

Section 501 provides that “[a] creditor or an indenture trustee may file a proof of claim.” Section 502 states that “[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.” Therefore, a proof of claim creates a claim that is presumptively allowed unless a party in interest objects.

Section 1326(c) requires the chapter 13 trustee to make plan distributions to creditors under the plan. The trustee can only make those distributions on account of allowed claims. Fed. R. Bankr.P. 3021 (“after a plan is confirmed, distribution shall be made to creditors whose clams have been allowed.”).

Combined, these provisions indicate that the creditor must file a proof of claim to be entitled to plan distributions. Hogan, 346 B.R. at 719. Distributions are made to creditors who hold allowed claims under Bankruptcy Rule 3021, and the filing of a proof of claim initiates the allowance process under sections 501 and 502. Id. “In sum, if a creditor elects not to file a claim, then it also elects not to be paid under the plan.” Id. at 720 (citing In re Macias, 195 B.R. 659, 660-61 (Bankr.W.D.Tex.1996); In re Baldridge, 232 B.R. 394, 396 (Bankr.N.D.Ind.1999)); see also In re Minbatiwalla, 424 B.R. 104, 118 n. 8 (Bankr.S.D.N.Y.2010) (“[I]f the secured creditor wants to receive payments under a confirmed plan, the creditor must file a proof of claim.”).

This does not mean that Creditor is entirely incorrect in arguing that it need not file a proof of claim. “As a general rule, a secured creditor in a chapter 13 case is not required to file a proof of claim [and] may choose to ignore the bankruptcy proceeding and look to its lien for satisfaction of the debt.” Hogan, 346 B.R. at 719 n. 7 (citations omitted). It is a “well-established principle of bankruptcy law that liens pass through bankruptcy proceedings unaffected.” Federal Deposit Insurance Corporation v. Union Entities (In re Be-Mac Transport Company, Inc.),

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Cite This Page — Counsel Stack

Bluebook (online)
492 B.R. 140, 69 Collier Bankr. Cas. 2d 1076, 2013 WL 1890256, 2013 Bankr. LEXIS 1906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dumain-nysb-2013.