Opinion
Chapter 13 Case No. 7-01-02648
July 2, 2002
ORDER
At Roanoke in said District this ___ day of June 2002:
Before the court is a motion by EquiCredit Corporation (hereinafter Creditor) for leave to file late proof of claim. On June 13, 2001, Craig and Kathy Guidry (hereinafter Debtors) filed a voluntary petition under Chapter 13 of the Bankruptcy Code. On the same day the Debtors filed a plan which proposed to pay pre-petition arrears in the amount of $8,000.00 due to the Creditor in connection with a secured debt. The Debtors' plan was confirmed on September 19, 2001.
The bar date for filing proofs of claims was October 11, 2001. The Creditor did not file a proof of claim for the pre-petition arrears before the applicable bar date. The Creditor seeks leave to file a late proof of claim based on its assertion that the actual amount of pre-petition arrears is $9, 442.02. Neither the Chapter 13 trustee nor the Debtors formally opposed the motion to file a late proof of claim.
The Debtor did, however, timely file a proof of claim on behalf of the Creditor for the underlying secured debt in the amount of $79,015.09.
Presently, the Chapter 13 trustee is not making distributions to the Creditor because it did not timely file a proof of claim.
Section 501 of the Bankruptcy Code permits creditors to file a proof of claim. 11 U.S.C. § 502 provides 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." A party in interest may object if "proof of such claim is not timely filed." 11 U.S.C. § 502(b)(9).
Per Bankruptcy Rule 3002, both secured and unsecured creditors must file their proofs of claim within ninety days after the first date set for the § 341 meeting of creditors. The court, however, may enlarge the time to file proofs of claim under one of the five grounds set forth in Bankr. R. 3002(c)(1)-(5). If a creditor does not request an enlargement of time before the claims bar date, the creditor must satisfy the requirements of Bankr. R. 9006(b)(2) ("[T]he court for cause shown may at any time in its discretion . . . on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.").
Untimeliness, therefore, may be asserted as a defense to tardily filed proofs of claim. The mere fact of tardiness does not appear to axiomatically render the proof of claim disallowed: a filed proof of claim is allowed until an objection is interposed and ruled on by the court. See 11 U.S.C. § 502(b).
The conclusion reached here is in line with In re Jensen, 232 B.R. 118 (Bankr. N.D. hid. 1999), cited by the Creditor in support of its motion. The court finds that there is no justiciable issue to address at this time. Nothing in the Bankruptcy Code prohibits the Creditor from filing of a late proof of claim and no party has objected to the motion. A filed claim is allowed until an objection is raised; at which time, the court will adjudicate the issue. Accordingly, it is
ORDERED:
That the Motion for Leave to File Late Proof of Claim is DENIED as unjusticiable.
Copies of this order are directed to be sent to Phillip Brown, Esq., Counsel for the Debtor, P.O. Box 12256, Roanoke, Virginia 24024; to Melvin Zimm, Esq., Counsel for EquiCredit, 580 East Main Street, Norfolk, Virginia 23510-2212; and to Rebecca Connelly, Trustee, P.O. Box 1001, Roanoke, Virginia 24005.