In re Hrubec

544 B.R. 397, 2016 Bankr. LEXIS 266, 2016 WL 354843
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedJanuary 27, 2016
DocketBankruptcy No. 15 B 08079
StatusPublished
Cited by3 cases

This text of 544 B.R. 397 (In re Hrubec) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hrubec, 544 B.R. 397, 2016 Bankr. LEXIS 266, 2016 WL 354843 (Ill. 2016).

Opinion

MEMORANDUM OPINION

Donald R. Cassling, United States Bankruptcy Judge

To be assured of receiving payments under a Chapter 13 plan a creditor must hold an “allowed” claim.1 For the credi[398]*398tor’s claim to be allowed, the creditor (or the debtor on its behalf) must file a proof of claim. 11 U.S.C. § 502(a). Unsecured creditors have a window of ninety days following the first meeting of creditors in which to do this.2 Fed. R. Bankr.P. 3002(c). By case law in this Circuit, secured creditors must file their proof of claim within that same window. In re Pajian, 785 F.3d 1161 (7th Cir.2015).

But do these rules prohibit a Chapter 13 debtor from reaching an agreement with a secured creditor to pay that creditor through a plan even though the secured creditor has not filed a proof of claim? Glenn B. Stearns, the Chapter 13 Standing Trustee (the “Trustee”), has moved to dismiss the case of Jeffery S. Hrubec (the “Debtor”) for failure to propose a confirm-able plan, arguing that the following sentence from the Seventh Circuit’s decision in Pajian prohibits confirmation of the Debtor’s existing plan, because it proposes to pay a secured creditor who does not have a proof of claim on file: “A creditor must file a proof of claim in order to participate in Chapter 13 plan distributions.” Pajian, 785 F.3d at 1163.

The Debtor argues that the cited quotation is dictum and that, under the actual holding of Pajian, considered in conjunction with the applicable statutes and rules, an agreement between a debtor and a secured creditor to pay that creditor in the plan is permissible.

For the reasons that follow, the Court agrees with the Debtor.

I.JURISDICTION AND PROCEDURE

The Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This matter concerns the confirmation of a plan under Chapter 13 and is therefore a core proceeding under 28 U.S.C. § 157(b)(2)(L). The issue “stems from the bankruptcy itself’ and may constitutionally be decided by a bankruptcy court. Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 2618, 180 L.Ed.2d 475 (2011).

II. BACKGROUND

The Debtor filed his Chapter 13 bankruptcy petition on March 6, 2015. In his Schedules, he listed a debt of $25,692 owed to First Bank & Trust. This debt is secured by a lien on the Debtor’s 2013 Chevrolet Silverado. The claims bar date of June 30, 2015, passed without First Bank & Trust filing a proof of claim. The Debt- or’s plan, however, includes payments to First Bank & Trust on account of its secured debt.

Because First Bank & Trust never filed a proof of claim, the Trustee refused to recommend confirmation of the plan and is now moving to dismiss the Debtor’s case, alleging unreasonable delay in proposing a confirmable plan. The Trustee'bases his position upon the language in Pajian first quoted above: “A creditor must file a proof of claim in order to participate in Chapter 13 plan distributions.” 785 F.3d at 1163.

III. DISCUSSION

The actual holding of Pajian addresses a narrow issue involving claims, not plans: “whether Rule 3002(c)’s deadline [for filing timely proofs of claim] applies to all creditors or merely unsecured ones.” 785 F.3d [399]*399at 1163. (emphasis in original). The court held that the deadline set forth in Rule 3002(c) applies to secured and unsecured creditors alike. As discussed below, nothing in Pajian, the Bankruptcy Code, or the Rules prevents a debtor from proposing treatment of a secured creditor’s debt, whether or not that creditor has filed a proof of claim. Once the debtor has proposed a particular treatment of a secured creditor through the plan and given notice of that proposed treatment to the creditor, the burden then falls upon that creditor to object. If it fails to object, it will be bound by the plan’s provisions under 11 U.S.C. § 1327.

The particular statement from Pajian quoted by the Trustee in his motion to dismiss — “[a] creditor must file a proof of claim in order to participate in Chapter 13 plan distributions” — was dictum. Its only significance to the Pajian decision was to emphasize that a secured creditor has a choice between payment under a plan and reliance on enforcement of its lien rights outside of bankruptcy:

A creditor must file a proof of claim in order to participate in Chapter 13 plan distributions. But while all creditors— secured and unsecured — must file a proof of claim in order to receive distributions, a secured creditor who fails to do so can still enforce its lien through a foreclosure action, even after the debtor receives a discharge. See In re Penrod, 50 F.3d 459, 461-62 (7th Cir.1995). In other wards, a secured creditor’s lien is largely unaffected by the bankruptcy discharge, regardless of whether the creditor filed a proof of claim.

Id. (internal citations omitted) (emphasis added).

Further proof that the cited quotation was dictum becomes apparent when one considers the policy considerations underlying the Court’s decision. In Pajian, unlike the situation in this case, the debtor had objected to including the secured creditor’s late-filed claim in his plan, “arguing that it was barred from inclusion in his Chapter 13 plan because the [secured creditor] had missed the deadline imposed by Rule 3002(c).” Id. at 1162. As the Pajian court recognized, forcing an objecting debtor to include payments for disallowed claims in his plan would be grossly unfair and inefficient:

Principles of sound judicial administration support this result. Requiring all creditors to file claims by the same date allows the debtor to craft and finalize a Chapter 13 plan without the concern that other creditors might swoop in at the last minute and upend a carefully constructed repayment schedule. If we held otherwise, secured creditors could wreak havoc on the ability of the debtor and the bankruptcy court to assemble and approve an effective plan. Each tardy filing from a secured creditor would likely require the debtor to file a modified' plan, which would have to be served on all interested parties and considered by the court. All this would often lead to disruptive delays in plan confirmation hearings and would ultimately hinder the bankruptcy court’s ability to manage its docket.

Id. at 1164.

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Cite This Page — Counsel Stack

Bluebook (online)
544 B.R. 397, 2016 Bankr. LEXIS 266, 2016 WL 354843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hrubec-ilnb-2016.