In Re Gurst

70 B.R. 467, 1987 Bankr. LEXIS 221
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedFebruary 25, 1987
Docket14-13396
StatusPublished
Cited by8 cases

This text of 70 B.R. 467 (In Re Gurst) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Gurst, 70 B.R. 467, 1987 Bankr. LEXIS 221 (Pa. 1987).

Opinion

OPINION

DAVID A. SCHOLL, Bankruptcy Judge.

At this juncture in the tortuous procedural history of this case, we are called on to decide one relatively simple legal issue, i.e., whether the Debtor’s Proof of Claim was timely filed, pursuant to 11 U.S.C. § 501(c), on November 18, 1986, at least seven (7), and possibly over ten (10), months subsequent to the bar date for filing claims. 1 Although we choose to follow that line of cases holding that a Debtor filing a claim pursuant to § 501(c) may do so in timely fashion within a reasonable period after the bar date, we hold that, in the factual circumstances presented in this case, the Debtor is not entitled to the lengthy time dispensation sought. Hence, the Objection of the creditor to the untimeliness of the Debtor’s § 501(c) claim on its behalf will be sustained.

The Debtor, a married woman, filed this Chapter 13 bankruptcy case individually on February 8, 1985. We learned from the Debtor’s Brief that her husband, Sheldon Gurst, also has a separate Chapter 13 case pending. 2 The creditor in issue, PHILADELPHIA CONSUMER DISCOUNT COMPANY (hereinafter referred to as “the Creditor”), argues, not without some logical support, that the general strategy of the Debtors is to whipsaw the Creditor by manipulation of proceedings in two (2) simultaneously-pending bankruptcies. While this may be true, it is our duty to simply decide whether the Debtor and her husband are proceeding properly under the Code, without regard for proceedings in other cases. 3

On her schedules, the Debtor listed separate loan obligations to the Creditor and *468 one NORWEST CONSUMER DISCOUNT COMPANY (hereinafter referred to as “Norwest”). The parties apparently agree that the Creditor is the successor in interest to the Norwest Claim and is asserting that Claim as well as a separate Claim on its own behalf.

On July 25, 1985, this Court, per our predecessor, the Honorable William A. King, Jr., entered an Order granting the Creditor’s Motion for Relief from the Stay. The Order notes that this was “upon agreement of the parties” and that it was “without prejudice of Debtor to seek reinstitution of stay.” On August 12, 1985, a similar Order was entered as a resolution of a similar Motion by Norwest.

The Meeting pursuant to 11 U.S.C. § 841 was originally scheduled on October 24, 1985. It would therefore appear, pursuant to the indication of same on the face of the Notice scheduling the Meeting, as well as Bankruptcy Rule 3002(c), that the last day for filing of Proofs of Claim, at least by creditors, was January 22, 1986. However, the docket entries indicate that, on March 11, 1986, the Trustee sent a notice to all parties establishing April 3, 1986, as the last day for filing claims. We note that we are unable to comprehend how the Trustee would have the power to extend the claim bar date. Therefore, we must hold that January 22, 1986, is the bar date, at least as to any party who is not able to establish that (s)he was misled by the Trustee’s notice.

On March 25, 1985, and April 1, 1986, respectively, Norwest and the Creditor filed Proofs of Claim. On February 13, 1986, the Debtor filed an Objection to Nor-west’s Proof of Claim, contending that it was entitled to a claim for recoupment under the federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. On September 19, 1986, the Debtor filed an Adversarial Proceeding, at Adv. No. 86-1121S, against the Creditor, attacking its Proof of Claim on several grounds. Ironically, in Count One, the Debtor averred that the Claim should be denied because it was averred that the bar date was January 22, 1986, and the Proof of Claim was tardily filed on April 1, 1986. 4 Given this fact, we are clearly unable to conclude that the Trustee’s notice misled the Debtor here, and January 22, 1986, therefore must be found to be the bar date, at least qua the Debtor.

Meanwhile, the Standing Chapter 13 Trustee filed the first of a series of Motions to Dismiss this Case on April 1, 1985, and April 11, 1985. On December 4, 1985, the last of these was filed, on the ground that the Debtor’s Plan was not feasible. This Motion had been continued six times due to the contentions of the Debtor that certain claims were in dispute and needed to be resolved prior to our taking the bench to succeed Judge King on August 27, 1986.

This case first came to our attention on September 17, 1986, when the continued Trustee’s Motion to Dismiss was listed for a hearing for the sixth time. In order to get the case moving or remove it from the system, we entered an Order on the next day directing that Counsel for the Debtor submit a list of all Creditors whose claims were disputed on or before September 22, 1986; indicating that Objections to all Claims would be heard on October 16,1986; and continuing the Trustee’s Motion to Dismiss for, hopefully, the last time, until November 19, 1986.

*469 On October 16, 1986, Counsel for the Debtor, the Creditor here, on behalf of the two (2) Claims in its possession, and Counsel representing the United States Department of Housing and Urban Development (hereafter referred to as “HUD”), concerning whose Claims the Debtor had also objected, appeared. HUD withdrew its Claims. The Debtor reported that a Stipulation would be filed effecting a resolution with another Creditor whose Claim was in dispute, General Motors Acceptance Corporation (hereinafter referred to as “GMAC”). After a colloquy during which Counsel for the Creditor reiterated a desire to pursue the Debtor in state court per its relief from stay rather than in this Court, the Creditor agreed to withdraw both the Norwest Claim and its own Claim. On October 17,1986, we entered an Order relative to the Creditor’s own Claim stating that the Proof of Claim was withdrawn and the Adversarial Complaint was withdrawn as moot “without prejudice to either party to raise any claims or defenses against the other in any other proceeding in this or any other court.”

We believed that the way was now paved for confirmation of the Debtor’s Plan, as all four (4) of the claims concerning which there were disputes had been resolved. Little did we know, much less suspect, that on November 18, 1986, the day before the continued hearing on the Trustee’s Motion to Dismiss was scheduled, the seeds of this controversy were replanted by the Debtor’s filing of a Proof of Claim pursuant to § 501(c) on behalf of the Creditor, referencing both its own Claim and that of Nor-west, in the munificent sum of one ($.01) cent. On November 20, 1986, the Debtor amended the Proof of Claim filed on November 18, 1986, but not the amount set forth therein.

At the hearing on November 19, 1986, the Trustee indicated that the removal of all of the disputed Claims would justify withdrawal of his Motion to Dismiss, but that the reported Stipulation with GMAC had not yet been filed of record.

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Related

In Re Kimber
84 B.R. 462 (W.D. Michigan, 1988)
Matter of Gurst
80 B.R. 27 (E.D. Pennsylvania, 1987)
Blakey v. Pierce (In Re Blakey)
78 B.R. 435 (E.D. Pennsylvania, 1987)
In Re Eckols
77 B.R. 345 (D. New Hampshire, 1987)
In Re Gurst
76 B.R. 985 (E.D. Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
70 B.R. 467, 1987 Bankr. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gurst-paeb-1987.