In re Egan

526 B.R. 111, 73 Collier Bankr. Cas. 2d 356, 2015 Bankr. LEXIS 640, 2015 WL 869328
CourtUnited States Bankruptcy Court, S.D. New York
DecidedMarch 2, 2015
DocketCase No. 14-36831 (CGM)
StatusPublished
Cited by11 cases

This text of 526 B.R. 111 (In re Egan) 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 Egan, 526 B.R. 111, 73 Collier Bankr. Cas. 2d 356, 2015 Bankr. LEXIS 640, 2015 WL 869328 (N.Y. 2015).

Opinion

MEMORANDUM DECISION DENYING MOTION TO ALLOW LATE FILED CLAIM

CECELIA G. MORRIS, CHIEF UNITED STATES BANKRUPTCY JUDGE

Ocwen seeks allowance of its late filed claim. As late claims are not allowed in chapter 13 and Ocwen has not met its burden of establishing that its objection to confirmation should be treated as an informal proof of claim, the Court denies Ocwen’s request.

Jurisdiction

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a) and the 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)(B) (allowance or disallowance of claims against the estate).

Background

Debtor filed for chapter 13 relief on September 8, 2014. Yol. Pet., ECF No. 1. The last date to object to confirmation was November 10, 2014 and the last date to file proofs of claim was December 30, 2014. 341 Ntc., ECF No. 7. On September 29, 2014, Ocwen, as servicer of Deutsche Bank, filed an objection to confirmation. Obj., ECF No. 14. On January 6, 2015, Debtor filed a proof of claim on behalf of Ocwen in the amount of $1. Claim No. 5. On January 12, 2015, Ocwen filed a proof of claim in the amount of $134,416.38. Claim No. 6 (filed by Deutsche Bank National Trust Company c/o Ocwen Loan Servicing, LLC).

On January 26, 2015, Ocwen filed a motion to allow its late filed claim. Mot., ECF No. 25. Ocwen argues that its objection to confirmation should be considered an informal proof of claim and that its claim is not late under an excusable neglect analysis. Id. ¶¶ 7,10.

The chapter 13 trustee filed opposition to the motion. Opp., ECF No. 30. He argues that the excusable neglect standard does not apply in a chapter 13 case. Id. ¶ 3. He argues that Ocwen cannot modify a proof of claim filed by the Debtor. Id. ¶ 11. He argues that the objection to confirmation should not be considered to be an informal proof of claim because the creditor was aware of the need to file a claim and never intended the objection to be an informal proof of claim. Id. ¶ 17. On February 19, 2015, Debtors filed opposition to the motion, in which they make similar arguments to those made by the chapter 13 trustee. D’s Opp., ECF No. 31.

Discussion

In its motion to allow its late filed claim, Ocwen makes two main arguments: 1) that its objection to confirmation should be considered an informal proof of claim; 2) that its late claim be allowed pursuant to the test set forth in Pioneer Investment Services. Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The [113]*113Court will consider whether to permit Ocwen’s late filed claim first, since the history of disallowing late claims in chapter 13 bears on whether to allow Ocwen’s objection to confirmation as an informal proof of claim.

Late claims are not allowed in chapter 13

Ocwen’s argument that its late filed claim should be permitted under the doctrine of excusable neglect as outlined in Pioneer is misplaced. See Aboody v. United States (In re Aboody), 223 B.R. 36, 38 (1st Cir. BAP 1998) (holding that the excusable neglect standard for allowing untimely proofs of claim does not apply in chapter 13 cases). Claims filed in chapter 13 cases are governed by Bankruptcy Rule 3002(c), which states that “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....” Fed. R. Bankr.P. 3002(c); see also In re Daniels, 466 B.R. 214, 217 (Bankr.S.D.N.Y.2011) (stating that Rule 3002(c) sets the standard for proofs of claim in chapter 13 cases). Rule 3002(c) goes on to provide six exceptions to the 90 day deadline, excusable neglect is not one of them. Id. Bankruptcy Rule 9006(b)(3) states: “[t]he court may enlarge the time for taking action under Rule[ ] ... 3002(c) ... only to the extent and under the conditions stated in th[at] rule[].” Fed. R. Bankr.P. 9006(b)(3). There is no excusable neglect basis for enlarging the claims bar date included in Rule 3002(c). Accordingly, the excusable neglect standard found in Rule 9006(b)(1) does not authorize extensions of the claims deadline imposed in chapter 13 cases. In re Oscar, 2005 WL 6522763 (Bankr.E.D.Pa. Apr. 14, 2005).

“[S]ince 1994, the courts have almost uniformly ruled that proofs of claim that are untimely filed in a Chapter 13 case may not be deemed timely filed, and that the claimants thereunder should not take from, or be permitted to recover from, the debtor’s estate under the Chapter 13 plan.” Daniels, 466 B.R. at 217 (listing examples). This Court has consistently held that late claims are not permitted in chapter 13 cases. In re Dumain, 492 B.R. 140, 148 (Bankr.S.D.N.Y.2013) (holding that secured creditors must comply with the bar date imposed by Bankruptcy Rule 3002(c)).

As such, the Court will not allow Ocwen’s late claim.

The test for allowing informal proofs of claim should take into account the facts of the case

The doctrine of informal proof of claim derives from the Second Circuit’s holding that “it is not essential that a document be styled a ‘proof of claim,’ or that it be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required.” In re Lipman, 65 F.2d 366, 368 (2d Cir.1933); Dumain, 492 B.R. at 149 (citing Lipman). The party seeking to use the informal proof of claim doctrine bears the burden of proof. Dumain, 492 B.R. at 149. While the Second Circuit has not provided a specific test, bankruptcy courts in this Circuit generally follow the following four-part test: To be an informal proof of claim, a document “must have been 1) timely filed with the bankruptcy court and become part of the judicial record; 2) state the existence and the nature of the debt; 3) state the amount of the claim against the estate; and 4) evidence the creditor’s intent to hold the debtor liable with the debt.” Dumain, 492 B.R. at 149; accord In re St. James Mech., Inc., 434 B.R. 54, 63 (Bankr.E.D.N.Y. 2010); In re Enron Creditors Recovery Corp., 370 B.R. 90, 99 (Bankr.S.D.N.Y.2007); Houbigant, Inc. v. ACB Mercantile, Inc. (In re Houbigant, Inc.), 190 B.R. 185, 187 (Bankr.S.D.N.Y.1995).

[114]*114Ocwen’s objection to confirmation was timely filed; states the nature of the debt to be “pre-petition mortgage arrears;” states the total amount of mortgage arrears as $63,806.90; and states that it intends to hold the debtor liable by indicating that a claim will be filed for this amount and objecting to the plan. Obj. ¶¶2, 4.

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Cite This Page — Counsel Stack

Bluebook (online)
526 B.R. 111, 73 Collier Bankr. Cas. 2d 356, 2015 Bankr. LEXIS 640, 2015 WL 869328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-egan-nysb-2015.