New Bar Date After December 1, 2017 – Have You Remembered to File Claims?

As of December 1, 2017, nongovernmental creditors have 70 days from the date the petition is filed within which to file claims.  The bar date applies to secured claims also.

If the debtor filed a petition between Dec. 1 and Dec. 10, 2017, then as of the date of this post, the creditors’ bar date has passed.  Creditors, if you didn’t file your proof of claim in those cases, it’s too late.

It’s not too late for debtors to file claims on behalf of those creditors they really want to be paid through the chapter 13 plan (car claims, mortgage arrearages, property tax claims, past due child support, etc.).

Debtors (through their attorneys) have 30 days after expiration of the creditors’ bar date within which to file claims on behalf of creditors.  (Rule 3004 also allows trustees to file claims, but don’t expect me to file any).

Debtors’ attorneys:  You cannot file a “placeholder” claim prior to the creditors’ bar date.  The Advisory Committee Note to the 2005 amendment to Bankruptcy Rule 3004 provides:

 “Under the amended rule, the debtor and trustee must wait until the creditor’s opportunity to file a claim has expired. . . .

Since the debtor and trustee cannot file a proof of claim until after the creditor’s time to file has expired, the rule no longer permits the creditor to file a proof of claim that will supersede the claim filed by the debtor or trustee.  The rule leaves to the courts the issue of whether to permit subsequent amendment of such proof of claim.”

Creditors’ attorneys:  in the EDKY, late is late.  It doesn’t matter if the debtor did not schedule the creditor, and it doesn’t matter if the claim was late due to excusable neglect.

Debtors’ attorneys:  make sure you tickle the creditors’ bar date in every case, and within 30 days after that date determine whether there are any claims your client wants you to file.

 

 

 

3 comments

  1. Assume a secured creditor did not file a secured POC on a car and the debtor timely filed a claim for an amount substantially less than the actual amount owed, can the debtor ‘get away’ with paying off his car early, forcing the release of the lien and possibly finishing his bankruptcy early as well?

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    1. Good question. My thoughts:
      1) the good faith test for confirmation of plan.
      2) signature on POC is declaration (under penalty of perjury) that you have a reasonable belief that the information in the POC is true and correct.
      3) combining those 2 principles, can you file a claim in an amount that is substantially different from what you’ve put on the schedules and in the plan (especially for valuation of collateral).
      4) plan controls as to the amount of an arrearage or 910 claim if the creditor does not timely file a POC, so even if you file a POC for $1., I pay per the amount you listed in the plan. If you amend the plan to change the estimated amount of the debt, that takes you back to #1, good faith.
      I think there is room for strategy, but not gamesmanship.
      Thanks for making me think about it!

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