Opinion
No. 77-B-1513
December 27, 1978
Real Property Arrangements — Rejection of Executry Contracts — Time for Filing Amended Proof of Claim
A creditor's motion to amend his timely pre-confirmation proofs of claim arising out of the debtor's rejection of an executory contract was denied pursuant to Bankruptcy Rule 11-33(b)(2)(B) and Section 355 of the Bankruptcy Act, when the motion was made past the deadline set by the court for filing the original proofs of claim, and post-confirmation.
Prior to the confirmation of its plan, the debtor rejected an executory contract and the creditor was given 60 days from service of a copy of the rejection order within which to file his claim for damages flowing from the rejection. Two claims were timely presented: one claim was an administration claim, allegedly arising after the filing of the Chapter XI petitions, and entitled under the scheme of Chapter XI to payment in full at confirmation; the second claim was filed as a general, unsecured claim, and entitled to be paid, on an equal basis, with similarly postured creditors in accordance with the promises made in the plan. More than six months after the deadline set by the court for the filing of the claims for damages, and one month following the confirmation of the plan, the creditor moved to amend his claims, attempting to recharacterize most of the second claim so that it would be entitled to administration status.
The court held that Bankruptcy Rule 11-33(b)(2)(B), the rule which implements Section 355 of the Bankruptcy Act, bars the amendment of pre-confirmation timely filed claims after confirmation of a debtor's plan. This rule is appropriate in this instance because it speaks to claims arising from the rejection of a debtor's executory contract. The Advisory Committee's Note relating to Bankruptcy Rule 11-33(b)(2) states that "[u]nder this rule an amendment must be filed within the same time as the original proof of claim and it is not possible to obtain an extension of time based upon the amending process." Because the amendment was filed more than six months after the deadline set by the court as the time for filing the original proof of claim, and filed after confirmation of the debtor's plan, the creditor's motion to amend was denied. See Sec. 355 at ¶ 9199 and Bankruptcy Rule 11-33(b)(2)(B) at ¶ 20,733.