Cite as: Keith M. Lundin, Lundin On Chapter 13, § 131.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
Any creditor that hopes to be paid through a Chapter 13 plan must file a proof of claim.1 The Bankruptcy Code has always required the filing of a proof of claim as predicate to receipt of payments through a Chapter 13 plan.2 Prior to 2017, for no obvious good reason, the Bankruptcy Rules and Forms were ambiguous with respect to whether secured creditors must file proofs of claim in Chapter 13 cases.3 There is now alignment between the Code and Rules: all creditors—including secured creditors—must file a proof of claim in a Chapter 13 case else the creditor risks being bound by the confirmed plan but will not receive distributions during the Chapter 13 case.4
Bankruptcy Rule 3001(a) requires that a proof of claim conform substantially to “the appropriate Official Bankruptcy Form.” At this writing, the appropriate form is Official Form 410, together with one Attachment for a mortgage proof of claim—Official Form 410A—and two Supplements, one for mortgage payment changes—Official Form 410S-1—and another for postpetition mortgage fees, expenses and charges—Official Form 410S-2. There may be additional attachments to a proof of claim required by local rules.5 Prior to 2015, the appropriate form for the proof of claim was Official Form 10. Beginning with the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),6 Official Form 10 and its successor, Official Form 410, went through many amendments and modifications—in 2007, 2008, 2011, 2012, 2015 and 2016. Reading cases about the trials and tribulations of filing proofs of claim is maddeningly difficult because the forms keep changing and outcomes in the cases are sometimes driven by differences in the forms.7 Reader beware.
Official Form 410 was developed for use in bankruptcy generally and is not ideally suited for the special needs of Chapter 13. As a result, there are dozens if not hundreds of variations on Official Form 410 in use in Chapter 13 cases. At this writing, Official Form 410 includes revisions through April 2016.
By local rule or practice, many jurisdictions have a preferred form for the proof of claim in Chapter 13 cases. In some jurisdictions, especially where the trustee has been assigned the responsibility for mailing notices in Chapter 13 cases, the notice of the meeting of creditors will have attached or enclosed a special form for the proof of claim. The form is provided by the trustee to simplify the filing of claims and the processing of claims by the trustee’s office. The form provided by the trustee is easily digested by the trustee’s data processing equipment. Although variation from the trustee’s form is permitted so long as a creditor’s form substantially conforms to Official Form 410,8 using a different form slows down processing and increases the potential for errors in coding and translation. If creditors have a choice, they should always use the form provided by or preferred by the Chapter 13 trustee.
Some creditors that do business all over the country have centralized their claims filing and have developed standard in-house forms for use in all Chapter 13 cases. Although these standard forms generally conform to Official Form 410, they are usually drafted to satisfy the creditors’ in-house needs rather than those of the Chapter 13 trustees. The better practice is to use the form supplied by the Chapter 13 trustee or, if no form is supplied, to call or write the trustee and ask for the trustee’s preferred form.
The number of copies of a proof of claim that must be filed in Chapter 13 cases varies from jurisdiction to jurisdiction. When paper filing is allowed or required for claims, in most courts, at least two copies are required; in some, it is as many as four. The purpose of multiple copies is that one copy will go to the clerk’s office and a second copy to the office of the Chapter 13 trustee. Sometimes a third copy goes into the court file. Filing too many or too few copies can have consequences out of proportion to the severity of the mistake. Clerks’ offices have been known to refuse to file a proof of claim that is offered in an incorrect number.9
Consistent with Bankruptcy Rule 5005(a), proofs of claim are usually filed with the bankruptcy court clerk for the district in which the case is pending. In some jurisdictions, proofs of claim are filed with the Chapter 13 trustee. There is some logic to filing with the trustee, though it is not obviously consistent with Bankruptcy Rule 5005(a). In many jurisdictions, the Chapter 13 trustee maintains the only accurate ledger of all filed proofs of claim; the trustee codes proofs of claim to a computer; and the trustee is responsible for all payments to creditors. The clerk of the bankruptcy court may keep a redundant claims register, but the trustee is really the bookkeeper, and the records of the clerk’s office may not be as accurate or current as the trustee’s. Creditors have to know the local practice to know where to file the claim and where to go for information about a claim. When in doubt, file with the clerk of the bankruptcy court.
Prior to 2018, Bankruptcy Rule 5005(a)(2) authorized bankruptcy courts to permit or require electronic filing of proofs of claim. As Electronic Case Filing spread across the country, some courts required electronic filing of proofs of claim, other courts did not. In some courts, the proof of claim itself was filed electronically, but attachments had to be filed in some other manner, particularly if they were scanned. Local rules dominated this area of bankruptcy practice, and counsel had to know local practice to get the electronic filing of a proof of claim right.
After the 2018 amendments to Bankruptcy Rule 5005(a)(2), any entity represented by an attorney—including creditors—is mandated to file electronically unless excused by local rule or court order.10 Bankruptcy Rule 5005(a)(2)(B) has different rules for filing by “an unrepresented individual,” which could include an individual creditor filing a proof of claim. Local rules and court orders will control whether an unrepresented individual files a proof of claim electronically or on paper.
Bankruptcy Rule 5005 does not directly address electronic filing by an entity that is not an individual and is not represented by an attorney. Agents who are not attorneys routinely file proofs of claim for entities that are not individuals and that are not represented by an attorney. Bankruptcy Rule 9010 states that an “authorized agent”—not necessarily an attorney—can file a proof of claim so long as that act is not “the practice of law” and an authorized agent need not also supply a power of attorney to file a proof of claim.11 An agent of a creditor that is not an individual can certainly file a proof of claim for the creditor, but that entity’s access to the Electronic Case Filing system is not addressed by Rule 5005 and presumably would be determined by local rules and practice. There is a statute that directly enables creditors to appear at the meeting of creditors and to question the debtor through agents who are not necessarily attorneys even when the creditor is not an individual.12 There is no analogous statute with respect to use of the electronic filing system to file proofs of claim by creditors that are not individuals and not represented by an attorney.
With an exception discussed below,13 Bankruptcy Rule 3001 and Official Form 410 require that the proof of claim be accompanied by any writing that evidences the claim or evidences the claim holder’s interest in property securing the claim. If the claim holder asserts a security interest, the proof of claim “shall be accompanied by evidence that the security interest has been perfected.”14 The number of copies of security instruments, deeds of trust, mortgages and UCC filing statements that must be filed with the proof of claim varies from jurisdiction to jurisdiction. In some jurisdictions, the court requires that each copy of a creditor’s proof of claim include all the supporting documents. In other jurisdictions, creditors are required to file one or two copies of the proof of claim with all necessary attachments and one or more other copies without attachments. Creditors simply have to know the local turf to avoid potentially costly problems. For example, if local practice requires two copies of all supporting security instruments and a creditor files only one, the proof of claim that is transmitted from the clerk of the court to the Chapter 13 trustee may well be the copy without attachments. When it is received by the Chapter 13 trustee, the trustee will have no evidence of a security interest, and an objection to secured status results.
The importance of the attachments to a proof of claim cannot be overemphasized. As discussed in detail elsewhere,15 a proof of claim executed in accordance with Bankruptcy Rule 3001 “shall constitute prima facie evidence of the validity and amount of the claim.”16 Execution of a proof of claim in accordance with Bankruptcy Rule 3001 includes attaching documents that prove the debt, that prove any security interest held by the creditor and that prove the perfection of any security interest.17 The importance of the attachments and the valuable evidentiary effect that results from careful attention to the details were explained this way by the Bankruptcy Appellate Panel for the Eighth Circuit:
Federal Rule of Bankruptcy Procedure 3001 requires that when a proof of claim is based on a writing, the documents must be filed with the proof of claim. . . . If a security interest in property of the debtor is claimed, the claim must be accompanied by evidence that the security interest has been perfected. . . . Furthermore, a proof of claim executed and filed in accordance with the rules “shall constitute prima facie evidence of the validity and amount of the claim.” . . . “The purpose of the rule [Rule 3001(c)] is to allow a creditor who attaches documents to his proof of claim to then refrain from presenting any other evidence because the documents establish sufficient evidence to sustain the claim.” . . . “The presumption of the validity of the proof of claim is a procedural device that places the burden of producing evidence to rebut the presumption on the debtors.”18
Detailed below,19 much litigation has occurred over the sufficiency of documentation and the extent to which lack of documentation supports an objection to a claim. The general rule is that failure to document a claim may deprive it of prima facie validity but does not alone result in disallowance.20 However, the line between losing prima facie validity and disallowance is not always a clear one.21 The caution here is to fully document claims to avoid objections and the risk of disallowance.
The Bankruptcy Rules prescribe only one form for all claims in Chapter 13 cases: secured, unsecured and priority claims can all be filed on a form that substantially conforms to Official Form 410. Consistent with the 1994 amendments to § 503(a), there is a note on the face of Official Form 410, “Do not use this form to make a request for payment of an administrative expense.” Administrative expenses are asserted by filing a “request” (motion), and the mistaken use of a proof of claim form can create all kinds of problems, particularly when the administrative expense involved is attorneys’ fees.22
In contrast to earlier versions, the basic format of Official Form 410 is that all creditors fill out the entire form, checking “No” for sections or questions that do not apply.
One of the least appreciated but most important aspects of Official Form 410 is Question 3, “Where should notices and payments to the creditor be sent?” Especially after extensive changes by BAPCPA to the general notice provisions in § 342,23 the designation of a name and address for notices on a proof of claim can be very significant.24
The Bankruptcy Rules make the address a creditor puts on a proof of claim important. For example, Bankruptcy Rule 2002(g)(1)(A) provides that designating a mailing address on a proof of claim constitutes a request to mail notices to that address whenever notice is required by Bankruptcy Rule 2002. The notices required by Bankruptcy Rule 2002 include notice of the hearing on confirmation of a Chapter 13 plan.25 Under Bankruptcy Rule 3015(d), the Chapter 13 plan or a summary of the plan must be included with the notice of the hearing on confirmation mailed pursuant to Rule 2002. When a creditor files a proof of claim that lists an address, that address must be used thereafter for all notices with respect to confirmation, including amendments or modifications of a plan. The failure to use the address designated by the creditor on a proof of claim can be a ground for relief from any confirmation order that might be entered.26 Too many creditors routinely put a servicing location or lockbox as the notice address on proofs of claim. This address may be quite different from the address for service of process and legal notices. Not helping the issue, Official Form 410 provides for the creditor to give two addresses, one for where notices should be sent and one, if different, for where payments should be sent. Although Bankruptcy Rules 3007 and 9014 contemplate that an objection to a claim is a contested matter that requires service consistent with Rule 7004, it has been held that the address on a proof of claim is proper for service of an objection to the claim.27
This conclusion has been complicated by the BAPCPA amendments to § 342. Detailed elsewhere,28 § 342(e)(1), as amended by BAPCPA, contains this important new notice provision:
(e)(1) In a case under chapter 7 or 13 of this title of a debtor who is an individual, a creditor at any time may both file with the court and serve on the debtor a notice of address to be used to provide notice in such case to such creditor.
(2) Any notice in such case required to be provided to such creditor by the debtor or the court later than 5 days after the court and the debtor receive such creditor’s notice of address, shall be provided to such address.29
New § 342(e) is one of the ways specified by BAPCPA for the debtor or the court in a Chapter 13 case to give “effective notice” in a Chapter 13 case.
The issue is likely to arise whether the designation of a name and address where notices should be sent on the face of a proof of claim constitutes the filing of a notice of address for purposes of § 342(e).30 The proof of claim is certainly filed with the court as required by § 342(e). But the new section requires that a notice of address must be both “filed with the court” and “serve[d] on the debtor” to have the effect described in § 342(e).
It is not routine for creditors to “serve” a proof of claim on the debtor when a proof of claim is filed with the bankruptcy court.31 Service on the debtor is a term of art under Bankruptcy Rule 7004(b)(9), which requires, for example, mailing by first-class mail to the debtor at the address shown in the petition or statement of affairs and to the debtor’s attorney if the debtor is represented by an attorney.32 If a proof of claim is both filed with the court and served on the debtor (and the debtor’s attorney), designation of a name and address where notices should be sent on the face of Official Form 410 might be interpreted to satisfy the requirements for designation of a notice of address under § 342(e)(1). If so interpreted, notices thereafter by the debtor or by the court would be effective if provided to the name and address the creditor designated on the proof of claim form.
Similar issues could arise under new § 342(f). An entity can file a notice of address with any bankruptcy court to be used by all bankruptcy courts to provide notice in pending Chapter 13 (and Chapter 7) cases.33 Thirty days after filing such a notice, the specified address must be used for all required notices to the entity in all courts or in the courts specified by the entity. Although a proof of claim is not routinely handled by most bankruptcy courts the same as a notice of address, a proof of claim filed with a bankruptcy court that designates a name and address in the box provided on the Official Form could be (mis?)interpreted as the notice of address permitted by new § 342(f). More likely, which address controls for notice purposes: a § 342(f) address filed by a creditor or the address by that creditor on a proof of claim?
Under new § 342(g)(1), notice provided to a creditor by the debtor or the court other than in accordance with § 342 “shall not be effective notice” until that notice is “brought to the attention” of the creditor.34 The new phrase “brought to the attention” is not defined by BAPCPA, but § 342(g)(1) states that if a creditor designates a person or organizational subdivision to be responsible for receiving bankruptcy notices and if the creditor establishes reasonable procedures so that bankruptcy notices receivable by the creditor are delivered to that person or subdivision, then a notice provided to the creditor other than in accordance with § 342(g) is not brought to the attention of the creditor until the notice is received by the designated person or subdivision.35
Section 342(g)(1) implicates the proof of claim form. When a creditor supplies the name and address where notices should be sent on the face of an Official Form 410, does that constitute the designation of a person or organizational subdivision responsible for receiving bankruptcy notices? If a bankruptcy notice is sent by the court or by the debtor to the name and address designated on the face of a proof of claim, will the creditor be estopped to assert that a different person or organizational subdivision was responsible for receiving bankruptcy notices for § 342(g)(1) purposes? From a creditor’s perspective, is the designation of a name and address where notices should be sent on Official Form 410 a trap with respect to effective notice and § 342(g)(1)? Section 342(g) does not reveal how a creditor should designate a person or organizational subdivision to receive bankruptcy notices. Until that process is fleshed out by the courts or rules, creditors should think twice as they fill in the name and address where notices should be sent on Official Form 410.
There are issues here for debtors and trustees as well. It is not a universal practice for debtors and Chapter 13 trustees to cull names and addresses from proofs of claim filed by creditors in Chapter 13 cases. In some districts, Chapter 13 trustees attempt to collect names and addresses of creditors from proofs of claim, but the process can be confused when a creditor, for example, makes a separate appearance in the Chapter 13 case either directly or through an attorney. Courts, debtors and trustees cannot always tell which address given by a creditor is the “correct” address for notice purposes in the Chapter 13 case.
After BAPCPA, debtors and trustees (and courts) must pay closer attention to the names and addresses supplied by creditors on proofs of claim. Even if the proof of claim is filed but not served on the debtor, the name and address designated by the creditor on Official Form 410 could be determinative of “effective notice” under § 342(g). Debtors’ attorneys not routinely keeping track of names and addresses designated by creditors on proofs of claim should consider whether new procedures are necessary in light of § 342(g).
These issues need further attention from the rules and forms drafters. There shouldn’t be any confusion about how a creditor files and serves the notice contemplated by new § 342(e) or (f). Designating a person or organizational subdivision for § 342(g) purposes should be a unitary, clearly identified procedure easily accessed by all bankruptcy players. The possibility of confusion when a creditor designates the name and address where notices should be sent on a proof of claim should be clarified so that everyone knows whether Official Form 410 has any function in determining effective notice under § 342. In the meantime, debtors and trustees should consider the name and address designated by a creditor for notice on a proof of claim as a name and address used for notice purposes in the Chapter 13 case.
Part 2 of Official Form 410 is where the filing of proofs of claim by creditors becomes especially tricky and dangerous. Creditors that routinely file proofs of claim must be aware that Bankruptcy Rule 3001(c) requires information that is not clearly required by Official Form 410 and failure to comply with Bankruptcy Rule 3001(c) will forfeit the prima facie effect of the proof of claim.
Part 2 begins innocently enough with a request that the creditor list the “last four digits of the debtor’s account or any number you use to identify the debtor.” The devil is in the limitation that only the last four digits be supplied. An account number or similar identifier is extremely important in Chapter 13 practice. These last four digits will be used by the Chapter 13 trustee to identify duplicate proofs of claim—a huge problem in Chapter 13 practice given the high likelihood that claims have been transferred or purchased. Also, when trustees issue distribution checks to creditors, the identifying information to allow the receiving creditor to properly apply the distribution often includes the last four digits of an account number supplied at Question 6 on Official Form 410.
It is the limitation to the last four digits that gets creditors in trouble. This is the first mention of “personally identifiable information” (PII) on Official Form 410. In 2002, in § 205(c)(3) of the E-Government Act of 200236 Congress instructed the Supreme Court to make rules to protect the privacy and security of personal information in electronically filed documents. In 2007, the Judicial Conference responded with Bankruptcy Rule 9037, which perhaps goes farther than the 2002 legislation to regulate the redaction of personal information from documents filed in the bankruptcy courts. Bankruptcy Rule 9037(a) requires redaction of personal information as follows:
Unless the court orders otherwise, in an electronic or paper filing made with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual, other than the debtor, known to be and identified as a minor, or a financial-account number, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual’s birth;
(3) the minor’s initials; and
(4) the last four digits of the financial-account number.37
Proofs of claim, and the attachments to proofs of claim (discussed below), are the place where creditors are most likely to transgress Bankruptcy Rule 9037 by filing documents that contain unredacted PII. To say the least, in the years immediately following the 2007 effective date of Bankruptcy Rule 9037, litigation exploded in the bankruptcy courts as creditors struggled—some with more or less enthusiasm—to comply with the new redaction requirements. Many courts enacted local rules to deal with redacted and unredacted filings. Many reported decisions address whether debtors have private rights of action under either the E-Government Act of 2002, Bankruptcy Rule 9037, or some other rule or statute when a creditor files a proof of claim that contains unredacted personal information.38
After more smoke than fire, the general rule has emerged that Chapter 13 debtors can require creditors to clean up proofs of claim and attachments that contain PII and in a few circumstances debtors have recovered at least their attorneys’ fees to fix a filing in violation of Bankruptcy Rule 9037, but few debtors have succeeded at recovering additional or consequential damages for unredacted PII in a proof of claim. An exception has been found when a creditor evidences a pattern of misconduct involving dozens or hundreds of cases in which proofs of claim are filed in violation of Bankruptcy Rule 9037.39 Suffice it to say, creditors must have protocols in place to catch and redact PII before a proof of claim is filed. If a proof of claim is mistakenly filed without the proper redactions, the creditor should act quickly to ask the clerk of the court to block public access to the filing and the creditors should then immediately file an amended proof of claim that is correctly redacted. The trick here is to make the correction without calling attention to the mistake.
Question 7 on Official Form 410 asks, “How much is the claim?” Unstated on the form is, “at the date of the petition.” The actual preparation and filing of a proof of claim in a Chapter 13 case may take place weeks or months after the filing of the petition. Creditors must adjust what otherwise appears on internal records to determine the amount of debt at the petition date.
The form then asks, “Does this amount include interest or other charges?” Here again, Bankruptcy Rule 3001(c)(2)(A) takes over: “If, in addition to its principal amount, a claim includes interest, fees, expenses, or other charges incurred before the petition was filed, an itemized statement of the interest, fees, expenses, or charges shall be filed with the proof of claim.”40 There is no official form for the “itemized statement” required by the Rule and by Official Form 410. Identifying and separately calculating these items can be difficult for creditors. For example, some creditors “capitalize” interest or other charges every month—adding those amounts to principal, which then accrues interest in subsequent months. Failing to itemize interest, fees, expenses or other charges in a statement attached to Official Form 410 forfeits the prima facie effect of the proof of claim and can draw the creditor into complicated and expensive litigation.41
Paragraph 8 of Official Form 410 wants to know the “basis of the claim.” The form instructs, “attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).” Once again, “redacted” is a signal that creditors must be careful not to attach PII. Once again, the cross-reference to Bankruptcy Rule 3001(c) is the devil in the details. Bankruptcy Rule 3001(c)(1) states:
(1) Claim based on a writing
Except for a claim governed by paragraph (3) of this subdivision, when a claim, or an interest in property of the debtor securing the claim, is based on a writing, a copy of the writing shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim.42
The cross-reference to “paragraph (3) of this subdivision” in Bankruptcy Rule 3001(c)(1) captures this nugget:
(3) Claim based on an open-end or revolving consumer credit agreement
(A) When a claim is based on an open-end or revolving consumer credit agreement—except one for which a security interest is claimed in the debtor’s real property—a statement shall be filed with the proof of claim, including all of the following information that applies to the account:
(i) the name of the entity from whom the creditor purchased the account;
(ii) the name of the entity to whom the debt was owed at the time of an account holder’s last transaction on the account;
(iii) the date of an account holder’s last transaction;
(iv) the date of the last payment on the account; and
(v) the date on which the account was charged to profit and loss.
(B) On written request by a party in interest, the holder of a claim based on an open-end or revolving consumer credit agreement shall, within 30 days after the request is sent, provide the requesting party a copy of the writing specified in paragraph (1) of this subdivision.43
The gist of all of this is that Question 8 requires the creditor to attach a contract or any other writing that supports its claim, unless the claim is an open-end or revolving consumer credit agreement that is not secured by real property—typically a credit card. If the claim is a credit card or similar debt, then the more specific and different information identified in Bankruptcy Rule 3001(c)(3)(A) must be contained in a statement filed with the proof of claim. Don’t look for this information on Official Form 410 itself. All of this is captured by the cross-reference to Bankruptcy Rule 3001(c) and be aware there is no official form for providing the credit card information required by Bankruptcy Rule 3001(c)(3)(A). Information such as the date of the last transaction, the date of the last payment and the date on which an account was charged off by a creditor can be difficult to capture. There is evidence in reported cases that creditors—especially credit card purchasers—must make the effort in Chapter 13 cases to accurately comply with the specific requirements of Bankruptcy Rule 3001(c)(3)(A).44 The filing of a statement under Bankruptcy Rule 3001(c)(3)(A) rather than the “writing” otherwise required of creditors by Bankruptcy Rule 3001(c)(1) was apparently intended to relieve credit card lenders and purchasers from the (onerous?) burden of finding and reproducing credit card contracts.45 The substitution of the specific data points in Bankruptcy Rule 3001(c)(3) creates its own set of problems for credit card lenders and the purchasers of credit card debt.
Question 9 on Official Form 410 addresses secured claims; accurately answering all parts of this question is a task not for the faint of heart. If a creditor believes it has a lien on property, it must say so in answer to Question 9 and then provide once again “redacted” copies of documents that evidence perfection of a security interest.46 Proof of perfection might be a copy of a mortgage, a certificate of title, a financing statement or a recorded judgment lien.
If the claim is secured by a debtor’s principal residence, the filing requirements for the creditor are multiplied. Beginning in 2011, the Bankruptcy Rules and Forms were dramatically modified to require more information from mortgage holders and servicers in Chapter 13 cases. Detailed elsewhere,47 Bankruptcy Rule 3002.1 was added to require notices of payment changes and notices of fees, expenses and charges that occur or are incurred postpetition in Chapter 13 cases. Bankruptcy Rule 3001 was amended to require detailed information from mortgage lenders with respect to claims secured by a debtor’s principal residence in an attachment now prescribed by Official Form 410A. After further modifications in 2015, Official Form 410A requires a sort of loan history that accounts for payments, fees, charges and status of any escrow account. Official Form 410A is detailed, complicated and time consuming but if correctly filled out, it provides information necessary to manage the payment of home mortgages in Chapter 13 cases. According to the committee notes, the loan history contained in Official Form 410A should begin with “the first date on which the borrower failed to make a payment in accordance with the terms of the note and mortgage, unless the note was subsequently brought current with no principal, interest, fees, escrow payments or other charges immediately payable.”48
In addition to the detailed payment history required by Official Form 410A, if any escrow account has been established in connection with a claim secured by the debtor’s principal residence, “an escrow account statement prepared as of the date of the petition was filed and in a form consistent with applicable nonbankruptcy law shall be filed with the attachment to the proof of claim.”49 Performing an accurate escrow analysis when a mortgage has tumbled into a Chapter 13 case is beyond the ordinary abilities of most mortgage lenders and servicers.50
All secured creditors are instructed at Question 9 to value the property claimed as security. There are then lines on which the amount of the claim that is secured is separated from the amount of the claim that is not secured. If the debt is in default at the petition, creditors are instructed to supply the amount necessary to cure any default as of the date of the petition. Finally, all secured creditors must state the annual interest rate at the time the case was filed.
Prior to 1991 it was recommended practice that a partially secured claim holder file two proofs of claim—a secured claim for the value of the collateral and an unsecured claim for the balance.51 Official Form 410 instructs a partially secured claim holder to indicate on a single form that it is secured in part and unsecured in part. A partially secured creditor should answer Question 9 on Official Form 410 by breaking down the total amount owed (Question 7) into secured and unsecured portions, based on the stated value for the collateral.
Prior to the 1991 revisions to the forms, a home mortgage holder provided for under § 1322(b)(5)52 often needed to file more than one proof of claim. If there was an arrearage at the petition and if the plan proposed to cure the default and maintain payments, the trustee needed two proofs of claim—one for the principal balance of the mortgage, indicating the amount of the ongoing monthly payment, and a separate proof of claim for the arrearage, with an itemization of unpaid installments, attorneys’ fees, prepetition foreclosure costs and so forth. Official Form 10—now Official Form 410 with Attachment A, Official Form 410A—has been revised many times since 1991 to provide space for a home mortgage holder with an arrearage to indicate the amount of the arrearage and other charges on a single claim. Official Form 410 contemplates that home mortgage holders will file only one proof of claim, and arrearages for curing-default purposes will be extracted from Attachment A, Official Form 410A, to that one proof of claim.
In Chapter 13 cases involving mortgage agreements entered into before October 22, 1994, the Supreme Court’s decision in Rake v. Wade53 entitles most mortgage holders to postpetition interest on defaults cured through the plan under § 1322(b)(5).54 With respect to agreements entered into after October 22, 1994, the amount necessary to cure defaults “shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.”55 Calculating the amount of default, the interest rate and monthly payments to cure default, and allocating payments to principal and interest as defaults are cured through the confirmed plan, are complicated calculations56 much affected by how carefully the mortgage holder fills out Official Form 410A.
In jurisdictions where it is common for the ongoing monthly mortgage payment to be paid by the trustee,57 the proof of claim must clearly state the principal balance remaining on the mortgage, the amount of prepetition arrearages, if any, and the amount of the regular monthly mortgage payment. Official Form 410A contains separate spaces for each of these amounts. Jumbling or miscalculating these numbers on the face of the proof of claim will confuse the computer coding of the mortgage holder’s claim and is likely to result in inaccurate payment through the plan.
In some jurisdictions, the proof of claim form in Chapter 13 cases has always provided a space for the secured claim holder to estimate the value of its collateral. For many years, Official Form 10 did not have a space in which a secured claim holder stated the value of its collateral. An undersecured claim holder that used a single official form to file proof of both its secured and unsecured claim implicitly valued its collateral by stating the amount of its secured claim separately from the amount of its unsecured claim. Official Form 410 now requires a secured claim holder to state the “value of property.” The Official Form offers no advice on the controversial question of what basis should be used to value collateral.58
Valuing collateral on a proof of claim is difficult and can be dangerous for creditors. If the value of collateral is litigated, a creditor’s estimate of value on a proof of claim becomes evidence for or against the creditor.59 It is arguable that whoever signs the proof of claim form on behalf of the creditor must have some source of personal knowledge of the value of the collateral. Typically, the creditor has not seen the collateral, if at all, since the original transaction with the debtor. Estimating the value of a three-year-old water bed is hard enough firsthand, but it is impossible when neither the creditor nor counsel has any current information about the bed’s condition. Sometimes the only honest answer to the value of collateral on a proof of claim is “unknown.”
The valuing of collateral on the face of a proof of claim could have special importance and complications when the collateral is a motor vehicle entitled to special treatment under BAPCPA. Detailed elsewhere,60 BAPCPA treats purchase-money car claims when the car was acquired within 910 days of the petition as if the claim is fully secured without regard to the value of the car for personal use. There are detailed rules for when this special treatment is available but the gist is that cars purchased within 910 days of a Chapter 13 petition typically are treated as fully secured even when the car is not worth the amount of the debt. Creditors with 910 car claims routinely file proofs of claim on which, in answer to “value of property” in Question 9, the creditor lists the total amount of its debt. There is no obvious logic to this practice. The creditor is basically stating under oath that the value of its collateral is the same as its debt without any factual foundation and with consequences if that value is then used as evidence against the creditor. In this vein, it has been argued that surrender of a car that was valued by the creditor at the full amount of its debt accomplishes full satisfaction of the debt and bars assertion of any deficiency after liquidation.61
Reported decisions suggest that creditors face jeopardy for sloppy practices in valuing collateral on proofs of claim in Chapter 13 cases. Especially with respect to cars and certain national lenders, the Chapter 13 debtors’ bar has become suspicious that lenders value collateral to be fully secured without any foundation in the facts of individual cases. Several lawsuits have been filed, some requesting class certification, alleging this practice.62 In one of these lawsuits, the bankruptcy court suggested that the 1998 revisions to (then) Official Form 10 may relieve creditors of some responsibility with respect to the accuracy of the value of collateral:
This new form may be less likely to give rise to the type of dispute at issue here. Rather than providing space for breaking down a claim, the new form asks for the full value of a claim regardless of its classification. Then, if there is collateral securing the claim, the form further instructs creditors to describe the collateral and provides a line to supply the value of the collateral. Presumably, if a creditor does not know or is unsure of the collateral’s value, the creditor can simply indicate its lack of knowledge without compromising its secured claim.63
This reasoning supports “unknown” as the right answer to the value of collateral on the face of Official Form 410 when the creditor has no case-specific information. But this logic does not support any practice of routinely valuing collateral on proofs of claims at some predetermined amount such as the amount of the overall claim or the retail value from a trade publication like the NADA used-car guide.64 The message here for creditors is that valuing collateral on a proof of claim must be taken seriously and in-house rules for filling out proofs of claim that are not case-specific invite objections to claim and lawsuits.
Developments in the United States Court of Appeals for the Seventh Circuit focused Chapter 13 practitioners on the importance of valuing collateral in a proof of claim. Discussed in more detail elsewhere,65 in Adair v. Sherman,66 the confirmed plan provided that allowed secured claims would be paid in full. A law firm filed a proof of claim on behalf of a bank, listing the value of a car at an amount greater than the car’s original purchase price. After confirmation, the debtor objected to the bank’s claim, but the objection was dismissed when the Chapter 13 case was dismissed. The debtor then filed a Fair Debt Collection Practices Act complaint in district court, alleging an unfair practice by the law firm of overvaluing collateral in proofs of claim. The Seventh Circuit held that the FDCPA action was precluded by confirmation of the (now dismissed) Chapter 13 plan after the filing of a proof of claim:
[W]hen a proof of claim is filed prior to confirmation, and the debtor does not object prior to confirmation, the debtor may not file a postconfirmation collateral action that calls into question the proof of claim. . . . The amount of the debt was determined definitively . . . in the earlier bankruptcy proceeding when a proof of claim was submitted prior to confirmation and Mr. Adair’s bankruptcy claim [sic] was later confirmed. The amount of the debt therefore cannot be relitigated in a subsequent FDCPA action by operation of the doctrine of issue preclusion.67
Although the holding of Adair is debatable,68 the Seventh Circuit’s opinion offers secured creditors a platform for the argument that the value stated on a proof of claim filed before confirmation is binding on the debtor when the plan is not specific with respect to value and the debtor does not object to the claim before confirmation. Adair signals that the value stated on a proof of claim may have more than just evidentiary effect in claims litigation with the debtor—Adair raises the evidentiary presumption in Bankruptcy Rule 3001(f)69 to issue preclusion status with respect to the value of collateral. Bankruptcy court decisions after Adair have been critical of the importance the Seventh Circuit assigned to the value listed on the proof of claim, and these courts have struggled to apply Adair to other facts.
For example, the bankruptcy court in In re Fareed70 surmises that the Seventh Circuit fell victim in Adair to confusion created by (then) Official Form 10 with respect to the claims allowance process and the collateral valuation process. Citing Dewsnup v. Timm,71 the Fareed court explained:
[C]laim allowance under § 502 is distinct from collateral valuation under § 506(a). . . . [T]he valuation of collateral under § 506(a) involves no objection to, or disallowance of, a claim under § 502. . . . [T]he distinction between motions seeking valuation of collateral under § 506(a) . . . and claim objections under § 502(b) . . . is rarely observed in the Chapter 13 practice of this district. The confusion between the two procedures originates in the Official Bankruptcy Forms . . . . Even though . . . the claim allowance process initiated by a proof of claim deals only with the total amount of a creditor’s claim, and does not involve collateral valuation, Official Form 10, for Proofs of Claim, requires both an indication that a claim is secured, and a valuation of the collateral securing the claim. Accordingly, the common method used by debtors or other parties in interest to raise the issue of collateral valuation under § 506(a) is by filing a “claim objection” asserting that collateral is overvalued in the creditor’s proof of claim. . . . There is no necessary harm in the inaccurate terminology employed in this procedure. The Official Form provides a method for creditors to state their position as to collateral valuation, and either a “Motion to Value Security” or a “Claim Objection” serves both to give notice to the creditor that this valuation is contested, and to allow for a court determination of collateral value, as required under § 506(a), to arrive at the amount of a creditor’s allowed secured claim. However, there remains a potential for confusion if the presumptions and procedures for genuine § 502(b) claim objections are read into the procedures for § 506(a) collateral valuation.72
Fareed makes the argument that no presumption is accorded the value stated on a proof of claim, but the value stated on a preconfirmation proof of claim can become binding under Adair when the plan is not specific with respect to value and the debtor does not object to value before confirmation. Other Seventh Circuit bankruptcy courts have made the same point on slightly different facts. In In re Duggins,73 the bankruptcy court distinguished Adair to hold that value stated on a preconfirmation proof of claim did not overcome the value stated in a confirmed plan that was specific with respect to value. The Duggins court explained that the proof of claim established the validity and amount of the debt but valuation was a separate process not controlled by the proof of claim.74
Secured claim holders realize significant leverage if Adair is broadly applied: confirmation of a plan that is not specific with respect to the value of collateral in combination with a preconfirmation proof of claim that is specific with respect to value will preclude valuation litigation. Adair instructs that secured claim holders should strive to file preconfirmation proofs of claim in all Chapter 13 cases and be quite specific on the face of the claim with respect to value.
Official Form 410 was amended in 2016 to include Question 10, dealing with claims based on leases. Leases—car leases in particular—are not particularly well managed by the Bankruptcy Code in Chapter 13 cases.75 Among the less than clear issues is whether lessors must file ordinary proofs of claim when the debtor proposes to assume an unexpired lease or executory contract. The inclusion of Question 10 on Official Form 410 suggests that at least the Rules drafters believe lessors should file proofs of claim and must include the amount necessary to cure any default as of the date of the petition.
Priority claim holders use Official Form 410, checking the appropriate box in Question 12 for the source of priority. BAPCPA amended § 507(a) of the Code to add new priority claims, to reorder some existing priority claims and to redefine other priority claims.76 Domestic support obligations (DSOs) under § 507(a)(1)(A) or (B) were redefined and elevated to first priority by BAPCPA and Official Form 410 reflects this new elevated priority. This bumped down other pre-BAPCPA priorities in § 507(a) and necessitated other changes to the list of priority claims in Question 12 on Official Form 410. The amounts of some priority claims were adjusted consistent with 11 U.S.C. § 104(b) and the Form now warns of periodic changes to the dollar limits on other priority claims that occur every three years.77 The new priority enacted by BAPCPA in § 507(a)(10) for claims for death or personal injury resulting from the unlawful operation of a motor vehicle or vessel while the debtor was intoxicated did not make it into the list at Question 12 on Official Form 410 but could be specified as “other” in the unsecured priority section of the Form.
Prior to BAPCPA, a claim for alimony, maintenance or support could be both a secured and a priority claim. After October 17, 2005, the § 507(a)(1) priority is only available for “allowed unsecured claims for domestic support obligations.”78 Official Form 410 never reflected the pre-BAPCPA potential for an alimony, maintenance or support claim to be both secured and priority. Given the flow of Official Form 410, a priority claim holder that also claims a lien on property would answer “yes” to Question 9, fill in the value of property and amount of the claim that is secured and then also check “yes” to Question 12 to indicate a priority claim. This possibility is no longer available to DSOs but arises with some regularity with respect to taxes that are secured by a lien.
Official Form 410 must be signed by the person filing the proof of claim. Part 3 of Official Form 410 instructs that “the person completing this proof of claim must sign and date it.” There are cross-references to several rules and statutes that impose civil and criminal sanctions on anyone filing a fraudulent claim. The signature on a proof of claim is a declaration “under penalty of perjury” that the information on the proof of claim is true and correct based on “a reasonable belief” and that the creditor has given the debtor “credit for any payments received toward the debt.” The Form requires the creditor to print the name of the person who is completing and signing the proof of claim. Especially when this information is different from the names and addresses in Part 1 of the Form, it is important that the individual actually signing and completing the proof of claim be identified.
Signing a proof of claim is important and should not be taken casually. An unsigned proof of claim does not comply with the requirements of Bankruptcy Rule 3001 and forfeits the prima facie evidence of validity and amount of the claim.79 The person signing the proof of claim—whether an attorney or a non-attorney agent—must be the individual that actually reviews the claim and documentation before filing.80 The practice of some creditors of affixing a single signature to multiple proofs of claim without regard to whether that individual actually reviewed the proof of claim is an invitation for scrutiny and trouble. In Resurgent Capital Services, L.P. v. Harrington (In re Cushman),81 the practice was revealed that Resurgent had a single agent sign hundreds of proofs of claim that were not reviewed by the signing agent. The Bankruptcy Court determined that this practice did not comport with the instructions on Official Form 10, failed to satisfy Bankruptcy Rule 3001(a) and forfeited the prima facie validity of the proofs of claim.82
Lack of a printed name does not necessarily prevent allowance, provided the claim is signed by an authorized person; however, following the instructions is the safe course.83 Prior versions of Official Form 410 asked for a copy of any power of attorney, but this requirement is not applied to an attorney-at-law. As one court stated, “The authority of an attorney to sign such a paper on behalf of a client is universally recognized, and the Court finds no reason to doubt that the signer actually is an attorney who has authority to submit the proof of claim on behalf of the client.”84 Bankruptcy Rule 9010(c) specifically provides that “authority of any agent, attorney in fact, or proxy to represent a creditor for any purpose other than the execution and filing of a proof of claim . . . shall be evidenced by a power of attorney conforming substantially to the appropriate Official Form.”85
Standing to assert a claim in a Chapter 13 case is an issue distinct from the signing of the proof of claim or the authority of the person signing the proof of claim. Standing concerns the identity of the creditor—what entity is actually owed the debt evidenced by the proof of claim. Standing to file a proof of claim has produced much litigation, especially with respect to mortgage proofs of claim filed by agents and servicers.86
Including a creditor’s attorneys’ fees in a proof of claim can be dangerous if not done very carefully. Question 7 on Official Form 410 contains a box that is supposed to be checked if the claim includes “interest or other charges” in addition to the principal amount of the claim. The creditor is instructed to “Attach statement itemizing . . . fees . . . or other charges.” Attorneys’ fees are one example of “charges” that, if included in the amount claimed, must be itemized in an attached statement.
Creditors have found big trouble in Chapter 13 cases by adding attorneys’ fees to proofs of claim without disclosing that the amount claimed includes attorneys’ fees. Class actions have been filed in the United States District Court for the Southern District of Alabama and elsewhere challenging the failure of several major institutional lenders to disclose attorneys’ fees included in proofs of claim; multimillion-dollar judgments have been entered against some creditors for failing to adequately disclose fees included in proofs of claim.87 Some courts have concluded that disclosure of attorneys’ fees in proofs of claim if robust enough to allow evaluation of reasonableness is a permissible method for creditors to recover attorneys’ fees in Chapter 13 cases.88 Other courts have held that a creditor seeking attorneys’ fees from a Chapter 13 estate must file the more formal separate application required by Bankruptcy Rule 2016(a).89 At the very least, any creditor that includes attorneys’ fees in a proof of claim should segregate the fee amount and attach the required itemized statement that clearly explains the services rendered and amounts.
After the 2011 promulgation of Bankruptcy Rule 3002.1, postpetition attorneys’ fees for home mortgage lenders in Chapter 13 cases must be separated from prepetition attorneys’ fees and must be sought by a different form—a “supplement” to the proof of claim known as Official Form 410S-2, Notice of Postpetition Mortgage Fees, Expenses and Charges. Official Form 410S-2 and Bankruptcy Rule 3002.1 have spawned enormous litigation in Chapter 13 cases.90 No one is exactly sure what “supplement” means in Bankruptcy Rule 3002.1. It certainly suggests that the mortgage creditor must first file a formal proof of claim to have something to supplement. Perhaps a supplement is an “amended”91 claim? For current purposes, it is important that creditors separate pre- and postpetition attorneys’ fees. Prepetition attorneys’ fees are part of the prepetition claim and must be included on Official Form 410 and itemized in an attachment. Postpetition fees are not included on Official Form 410, but instead require the supplement, Official Form 410S-2, and postpetition fees must be sought consistent with Bankruptcy Rule 3002.1.92
Although Official Form 410 has no provision for accepting or rejecting the debtor’s plan, some in-house forms used by creditors and Chapter 13 trustees include a place to accept or reject. Under § 1325(a)(5), the holder of an allowed secured claim has an option to accept the plan;93 also, under § 1322(a)(2), the holder of a priority claim can accept treatment other than payment in full in deferred cash payments.94 In these two situations, acceptance or rejection has statutory significance. Because proofs of claim often do not go to the same places or come to the attention of the same people as other documents filed in bankruptcy cases, it is a bad idea for a creditor to rely on an acceptance or rejection on the face of a proof of claim. The possibility of modifications before confirmation95 and the likelihood of adjustments in the plan at the meeting of creditors or at the hearing on confirmation render any acceptance of the plan in a proof of claim dangerous for creditors. The creditor that objects to the plan is particularly advised not to use a proof of claim to deliver the objection: always file a separate written objection to confirmation and serve the required parties, paying special attention to the deadlines for objections fixed by notice or local rules.96
3 See § 132.2 In General: Filing is Required for Allowance; § 132.7 Secured Claim Holders; and § 135.5 Failure to File Proof of Claim. See, e.g., In re Herrig, No. 16-33008, 2017 WL 2729074, at *1–*4 (Bankr. N.D. Ohio June 23, 2017) (Whipple) (Deadline in Bankruptcy Rule 3002(c) applies to tax lien holder and bankruptcy court has no authority to allow a late-filed claim. Tax lien holder received notice of the Chapter 13 case and did not file a proof of claim by the deadline in Bankruptcy Rule 3002(c). Plan proposed to pay the claim in full and debtor did not file a proof of claim on behalf of the lienholder. “Movant’s lien and the debt owed to Movant (which is not a personal liability of Debtors under Ohio law in any event) would still exist to be addressed after the completion of their Amended Plan. . . . A secured creditor in a chapter 13 case may, but is not required to, file a proof of claim. . . . Instead, a secured creditor may choose not to participate in the bankruptcy case and, generally speaking, after the bankruptcy case is concluded, look to its lien for satisfaction of the debt to the extent of its in rem rights. . . . But if a secured creditor wishes to participate and receive distributions in a Chapter 13 case, a proof of claim must be filed. In re Pajian, 785 F.3d 1161, 1163 (7th Cir. [May 11, 2015) (Wood, Easterbrook, Williams)] . . . . Courts disagree on whether the Rule 3002(c) filing deadline applies to proofs of claim filed by secured creditors. . . . Rule 3004 permits a Chapter 13 debtor to file a proof of claim on a creditor’s behalf . . . . Rule 3004 makes no distinction between unsecured creditors and secured creditors. . . . Absent the Rule 3002(c) filing deadline being applicable to a secured creditor, where a secured creditor does not file a claim, a debtor would be unable to file a claim on the creditor’s behalf and utilize a Chapter 13 plan to cure a default and maintain payments on the secured claim pursuant to 11 U.S.C. § 1322(b)(5), which is often the primary reason for seeking relief under Chapter 13. . . . [T]he ninety-day filing deadline in Rule 3002(c) applies to secured as well as unsecured creditors, and because Movant does not contend that any of the conditions for enlarging time under Rule 3002(c) apply, it is not entitled to file a late proof of claim[.]”).
4 See Bankruptcy Rule 3002(a), as amended in 2017: “A secured creditor, unsecured creditor, or equity security holder must file a proof of claim or interest for the claim or interest to be allowed . . . .”
5 See, e.g., In re Armistead, No. 11-36535, 2012 WL 3202964, at *1–*4 (Bankr. S.D. Tex. Aug. 3, 2012) (Isgur) (Failure to comply with local rule requirement that mortgage creditor’s proof of claim include a detailed loan history does not disallow claim or defeat prima facie validity if claim complies with Bankruptcy Rule 3001. “Bankruptcy Rule 3001 requires Flagstar to attach a ‘Mortgage Proof of Claim Attachment’ in the form published as ‘Attachment A’ to Official Form 10. . . . Flagstar’s failure to comply with Local Rule 3001-1 is not a basis for a valid objection to Flagstar’s claim. . . . A failure to comply with a local rule cannot result in a disallowance of the claim under § 502(b) and cannot upset the prima facie validity of the proof of claim. The proof of claim’s prima facie validity is established by Bankruptcy Rule 3001(f) . . . . [T]he local rule . . . is entirely consistent with the national rule . . . . [T]he local rule form requires substantial information not included on the national form. . . . [T]he use of the local form has dramatically reduced the number of home mortgage disputes in consumer cases. . . . [T]he local form provides supplemental information that complements the use of the national form.”).
6 Pub. L. No. 109-8, 119 Stat. 23 (2005).
7 See, e.g., In re Roman, No. 12-61482, 2012 WL 2921507 (Bankr. N.D. Ohio July 17, 2012) (not for publication) (Kendig) (Proof of claim filed using 2010 version of Form 10—rather than 2011 revised form—was still entitled to prima facie validity because 2010 version substantially conformed to 2011 revision and proof of claim had attached documentation.).
8 See, e.g., In re O’Dell, 251 B.R. 602, 606 (Bankr. N.D. Ala. Aug. 2, 2000) (Sledge) (Although Bankruptcy Rule 9009 permits alterations of Official Form 410, Max Flow adapted the form inappropriately by reformatting the creditor’s name to read “Max Flow Corp. on Behalf of MBNA America Bank, N.A. and Its Assigns.” This modification of the Official Form obscured that Max Flow was not the holder of the claim.), rev’d, 268 B.R. 607 (N.D. Ala. Oct 4, 2001) (Guin), aff’d, 305 F.3d 1297 (11th Cir. Sept. 23, 2002) (Tjoflat, Wilson, Cowen).
9 The practice of refusing to accept for filing documents that fail to comply with the technical requirements of the Bankruptcy Rules, Forms or Local Bankruptcy Rules is inconsistent with Bankruptcy Rule 5005(a): “The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.” See, e.g., In re Margoni, No. DM 13-90305, 2014 WL 4430036, at *1–*2 (Bankr. W.D. Mich. Aug. 15, 2014) (Dales) (Defective proof of claim for past-due child support preserved claim in absence of objection and notwithstanding notices from clerk. “Clerk’s Notice [that claim was defective and needed to be refiled], which refers to LBR 5005-2(e), did not strike the claim. Compare LBR 5005-2(c) (Clerk’s authority to strike documents) with LBR 5005-2(e) (Clerk’s notice to correct filing). Nothing in the text of LBR 5005-2(e) affects the validity of any filing; instead, the court regards the Clerk’s Notice as precatory, designed to encourage the Creditor to correct the defect. . . . As the record presently stands, the Creditor has filed a formally defective proof of claim, in the amount of $1,814.84, and has not corrected the defect despite the Clerk’s advice. Because the Clerk has included Claim No. 12 in the claim register for the Debtor’s case, the court will disregard the Creditor’s error in identifying herself as the ‘debtor’ on the claim form, in conformance with the harmless error principle of Fed. R. Bankr. P. 9005. The defect, in other words, does not affect any party’s substantive rights. Finally, nothing in this Memorandum of Decision shall be construed as limiting the Creditor’s right to amend Claim No. 12 to modify the amount of the claim, or any parties’ right to object to Claim No. 12 . . . .”).
10 Fed. R. Bankr. P. 5005(a)(2)(A).
11 Fed. R. Bankr. P. 9010. See, e.g., In re Dunklin, No. 04-41631 DHS, 2006 WL 2806234, at *5 (Bankr. D.N.J. Sept. 27, 2006) (not for publication) (Steckroth) (Citing Bankruptcy Rule 9010(c), proof of claim can be filed by Georgia attorney in New Jersey bankruptcy case. “Federal Rule of Bankruptcy Procedure 9010 . . . requires a power of attorney only if the authorized agent is undertaking an action other than the execution and filing of a proof of claim. . . . [T]he preparation and filing of a proof of claim is an administrative function that can be performed by an authorized agent. Here, McCalla Raymer is national counsel to National City. As such, McCalla Raymer’s attorneys are admitted to practice in other jurisdictions. That said, it would prove illogical to permit non-lawyers to file proofs of claims in bankruptcy court and not permit attorneys, even if not admitted in this jurisdiction, to do the same.”).
12 See 11 U.S.C. § 341(c), discussed in § 43.8 Representing Creditors at the Meeting of Creditors.
13 See below in this section and see § 135.3 Documentation and Assigned Claims.
14 Fed. R. Bankr. P. 3001(d).
15 See discussion beginning at § 135.1 Timing, Procedure and Evidence Presumption.
16 Fed. R. Bankr. P. 3001(f).
17 See, e.g., In re Schraner, 321 B.R. 738 (Bankr. W.D. Wash. Jan. 21, 2005) (Overstreet) (Where a proof of claim includes the amount of the debt, identifies the account number of the debtor, in a business record, and articulates the charges such as interest, late fees, and attorney’s fees, the claim is allowable and satisfies the requirements of 3001(c).).
18 In re Waterman, 248 B.R. 567, 570–71 (B.A.P. 8th Cir. May 24, 2000) (Koger Kressel, Hill). Accord Walston v. PYOD, LLC (In re Walston), No. 14-14593, 2015 WL 3462325, at *3–*4 & n.7 (11th Cir. June 2, 2015) (not for publication) (Hull, Rosenbaum, Pryor) (When debt buyer’s proof of claim contains the documents required by Bankruptcy Rule 3001(c)(3), prima facie effect defeats debtor’s objection that attachments to proof of claim are inadmissible hearsay. “Walston does not challenge that PYOD submitted with its proofs of claims all the information required under Rule 3001. . . . [B]ecause PYOD’s proofs of claim were ‘filed in accordance with’ Rule 3001, the proofs ‘constitute prima facie evidence of the validity and amount of the claim.’ Fed. R. Bankr.P. 3001(f). . . . Rule 3001 sets forth the requirements for a proof of claim, and nothing in Rule 3001 or other bankruptcy rules requires a claimant to reduce the evidence submitted with its proof of claim into a form that would be admissible under state law. . . . Requiring a claimant to put its evidence into admissible form at the proof-of-claim stage is inconsistent with the purpose of these procedures. . . . [W]hen a proof of claim includes all of the information required under Rule 3001, it constitutes prima facie evidence of the validity of the claim, regardless of whether the evidence on which the claimant relies would be considered inadmissible hearsay under state law. . . . [The debtor] cannot overcome the prima facie validity of the claims simply by objecting. Instead, he must support his objections with evidence to negate a fact set forth in the proof of claim. . . . [H]e submitted no evidence in support of his objections . . . .” In a note, “We . . . do not decide here whether a debtor must come forward with evidence that negates a fact in the proof of claim when the objection raises a legal defense that the claim is unenforceable as a matter of law under § 502(b)(1); e.g., the statute of limitations has run or the interest rate on the debt was usurious.”); Garner v. Shier (In re Garner), 246 B.R. 617, 621–22 (B.A.P. 9th Cir. Mar. 22, 2000) (Klein, Brandt, Marlar) (Official Form 410 signed by creditor’s attorney with attachments evidencing debt raised the presumption in Bankruptcy Rule 3001(f). “Shier’s proofs of claim were in writing, on Official Form 410 . . . and executed by his attorney. . . . When the claim is based on a writing, there must be attached either the writing or an explanation of why or how the writing has been lost or destroyed. . . . The claim form was accompanied by an attachment that explained the basis for the debt, including . . . sworn responses to interrogatories and . . . deposition testimony. . . . Rule 3001(b) authorizes a proof of claim to be executed by an attorney.”).
20 See § 135.1 Timing, Procedure and Evidence Presumption and § 135.3 Documentation and Assigned Claims. See, e.g., In re Achtor, No. 14-13286-13, 2015 WL 4638503 (Bankr. W.D. Wis. Aug. 3, 2015) (Furay) (Objection to claim of American Express did not overcome prima facie validity of claim that included credit card statement, cardmember agreement and statement required by Bankruptcy Rule 3001(c)(3)(A). Agreement clearly provided that debtor was jointly and severally liable on all credit card debt with company for whom account was established. Use of card constituted acceptance of terms.); Critten v. Quantum3 Grp., LLC (In re Critten), 528 B.R. 835 (Bankr. M.D. Ala. Apr. 10, 2015) (Sawyer) (Failure to comply with Bankruptcy Rule 3001 does not give rise to an independent cause of action. Remedy for failure to comply with the Rule’s directions is to strip the claim of its prima facie validity.); In re Castaneda, No. 10-91750-D-13G, 2010 WL 9498474 (Bankr. E.D. Cal. Sept. 30, 2010) (Bardwil) (Lack of documentation prevents claim from having presumption of prima facie validity but is not a basis for disallowance.); In re Moreno, 341 B.R. 813 (Bankr. S.D. Fla. Apr. 13, 2006) (Mark) (Failure to fully comply with Rule 3001(c) does not disallow claim. Creditor that files claim without supporting documentation required by Rule 3001(c) and Official Form 410 loses presumption of validity. When substantive objection is raised, claimant must present evidence of validity and amount. If claim is scheduled as undisputed in an amount equal to or greater than amount of proof of claim, little, if any, documentation is necessary.); In re Armstrong, 320 B.R. 97, 104–05 (Bankr. N.D. Tex. Jan. 18, 2005) (Felsenthal, Houser, Hale) (Official Form 410 and Bankruptcy Rule 3001 required eCast to attach supporting documents or a summary including proof of the sale or assignment of its claim; failure to do so forfeits prima facie validity of claim under Bankruptcy Rule 3001 but does not disallow claim. Chapter 13 debtor did not violate good-faith requirement in § 1325(a)(3) by filing blanket objections to unsecured claims that were not accompanied by proper supporting documents. “[W]here the creditor has not met the standards of Bankruptcy Rule 3001 and Official Form 410, the claim is not automatically disallowed; rather, it is deprived of the prima facie validity which it could otherwise have obtained. . . . [L]ack of proper supporting documentation does not, in and of itself, result in a claim’s disallowance; rather, it strips it of any prima facie validity, requiring the creditor to offer the supporting documentation to carry its burden of proof in the face of an objection. . . . Official Form 410 allows for a summary to be attached to the claim. . . . [A] summary attached to the claim must include: (1) the names and account number . . . (2) the amount of the debt; (3) be in the form of a business record . . . and (4) if the claim includes charges such as interest, late fees and attorney’s fees, the summary must include a statement giving a breakdown of those elements.”).
21 See § 135.1 Timing, Procedure and Evidence Presumption and § 135.3 Documentation and Assigned Claims. See, e.g., In re Habiballa, 337 B.R. 911, 916 (Bankr. E.D. Wis. Feb. 6, 2006) (Kelley) (Chapter 13 debtor objecting to proof of claim for failure to satisfy Bankruptcy Rule 3001(c) must provide evidence which tends to meet, overcome or at least equalize statements made on face of proof of claim. Debtor objected to claims on ground that claims lacked documentation. Although claims failed to meet strict requirements of Rule 3001, claims did satisfy Bankruptcy Code § 502. “Recognizing that Bankruptcy Code § 502 provides that a claim shall be allowed unless the objector shows that one of the exceptions applies, and that Bankruptcy Rule 3001 is an evidentiary rule that cannot supercede the substantive provisions of the Code, this Court will require the Debtor to come forward with some evidence to contradict the claim summary, even in the absence of a creditor’s compliance with an information request.” The debtor provided no evidence that the claims were invalid and, accordingly, mere speculation that the claims may or may not include improper amounts is not sufficient to rebut the presumption of validity. One claim, however, contained no attachments and provided no written documentation of the method by which the claim was calculated, and the claimed amount disagreed with the debtor’s schedules. The claim was not entitled to prima facie status, and the evidence presented by the debtor was sufficient to disallow the claim to the extent it exceeded the amount on the debtor’s schedules.).
23 See 11 U.S.C. § 342, discussed in § 4.3 Section 342: Notice What Didn’t Happen.
24 See also § 4.3 Section 342: Notice What Didn’t Happen.
25 See Fed. R. Bankr. P. 2002(b).
26 See, e.g., In re Johnson, 274 B.R. 445, 448–49 (Bankr. D.S.C. Dec. 17, 2001) (Waites) (When creditor timely files a proof of claim that lists an address for all future notices, debtor’s failure to use that address precludes subsequently confirmed plan from having binding effect. “Rule 2002(g) provides that, if a creditor has submitted a proof of claim, all notices required to be mailed pursuant to Rule 2002 should be sent to the address provided in the proof of claim. . . . Because Debtor failed to comply with Rule 2002(g) and serve his Second Amended Plan on Conseco at the address it provided in its Proof of Claim, the Court finds that Conseco was denied due process for lack of notice.”).
27 In re Tudor, 282 B.R. 546, 550 (Bankr. S.D. Ga. Aug. 22, 2002) (Dalis) (“[T]he address on a proof of claim designates where notices are to be sent. . . . Fleet listed the address used for service on its proof of claim form, which designates the address block as ‘where notices should be sent.’ Fleet designated this address for future notices.”).
29 11 U.S.C. § 342(e), discussed in § 4.3 Section 342: Notice What Didn’t Happen.
30 There is also the possibility that the address on a proof of claim will be different from the address on a § 342 notice. Which would then control?
31 See Johnson v. Hyundai Motor Fin. (In re Johnson), No. CC-15-1042-DTaKu, 2015 WL 5923397 (B.A.P. 9th Cir. Oct. 9, 2015) (not for publication) (Dunn, Taylor, Kurtz) (Nothing in Bankruptcy Rules required car lender to serve its proof of claim on the debtor or to serve the withdrawal of its proof of claim on the debtor; bankruptcy court appropriately refused debtor’s request for $110 million sanction against car creditor.).
32 See Fed. R. Bankr. P. 7004(b)(9).
33 See 11 U.S.C. § 342(f), discussed in § 4.3 Section 342: Notice What Didn’t Happen.
35 11 U.S.C. § 342(g)(1), discussed in § 4.3 Section 342: Notice What Didn’t Happen.
36 Pub. L. No. 107-347.
37 Fed. R. Bankr. P. 9037.
38 See, e.g., Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 477 B.R. 714 (E.D. Wis. Aug. 21, 2012) (Adelman) (Reference withdrawn for trial whether attachment to proof of claim of confidential medical records was violation of Wisconsin statute.), rejecting report and recommendation of 464 B.R. 807, 827 (Bankr. E.D. Wis. Feb. 3, 2012) (Kelley) (After remand for consideration of Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), bankruptcy court recommended dismissal because debtors failed to prove actual damages from Aurora’s filing of proof of claim with account numbers and confidential medical records attached. Under Wisconsin law, failure to show actual damages is fatal to claim for nominal or exemplary damages; damage claim “supported only by nebulous statements simply does not meet the standard of proof required to defeat summary judgment.” Denial of motion to dismiss based on judicial estoppel was recommended, since cause of action did not arise until after defendant had filed proof of claim. Debtors had continuing duty to amend schedules, but adversary proceeding provided adequate disclosure of claims as well as notice to trustee of postpetition claim.); Holloway v. Community Bank, No. 3:10-CV-75, 2011 WL 4500042 (E.D. Tenn. Sept. 27, 2011) (Phillips) (Failure to redact Social Security and account number on proof of claim does not give rise to private cause of action under § 107(c); “publicity” element of invasion of privacy under state law was not proven.); In re Bankston, 1:12-BK-14022-SDR, 2015 WL 6126440, at *3–*5 (Bankr. E.D. Tenn. Oct. 15, 2015) (Rucker) (There is no statutory authority for bankruptcy court to require the National Data Center or a creditor to redact personally identifiable information from their records when the information was gathered by third parties and disseminated by entities other than the court. “NDC provides data services to chapter 13 trustees across the country. . . . The Debtors’ case information, including their Social Security numbers, would have been part of the information conveyed to NDC during this period. [Valley of the Moon Royalties, Inc.] is a subscriber to the services of NDC. To the extent that NDC or VMR had or still have the Social Security numbers and any other PII of these Debtors, that information was not obtained from the court’s records. The PII was provided to NDC and VMR by the chapter 13 trustee or another party. . . . Congress did not intend for § 107(c) to create a private right of action or to be a remedial statute in any way. . . . [T]he Debtors have been unable to direct the court to a single case where a court has ordered, under the authority of section 107, redactions in or limitations on access to records held by a third party obtained from a source other than the court. . . . Rule 9037 . . . also relates only to filings made with the court and is not a basis for the relief requested.”); Mallard v. Wynn-Singer & Assocs. (In re Mallard), No. 13-5012, 2014 WL 988779 (Bankr. E.D. Ky. Mar. 12, 2014) (Wise) (Failure to redact medical information that revealed HIV status did not give rise to private right of action for damages under e-Government Act of 2002, Bankruptcy Rule 9037 or state tort law for invasion of privacy, but private right of action does exist under Kentucky law that prohibits disclosure of HIV test results.); In re Brown, Nos. 11-30384, 11-31690, 10-31100, 2012 WL 2576473 (Bankr. W.D.N.C. July 3, 2012) (Beyer) (Remedy for violation of Bankruptcy Rule 9037 was to restrict access to unredacted information or to require redaction. No cause found to award monetary damages or attorney’s fees to debtors. Creditor on notice that failure to redact account numbers in future would risk contempt.); Ricker v. Athens Reg’l Med. Ctr. (In re Ricker), No. 12-1032, 2012 WL 2562760 (Bankr. E.D. Tenn. June 29, 2012) (Rucker) (Failure to redact Social Security number in proof of claim did not give rise to action for civil contempt, for violation of Bankruptcy Rule 9037, under §§ 105 or 107, for invasion of privacy or for breach of implied covenant of confidentiality.); Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 (Bankr. E.D. Ark. Jan. 21, 2011) (Evans) (Creditor’s violation of Bankruptcy Rule 9037 by failing to redact debtor’s birth date and health information did not create private right of action under § 105(a), but court could address violation of Rules through contempt proceeding. There was no provision in § 502(b) for disallowing unredacted proof of claim. Debtor sought monetary damages rather than contempt sanction for violation of Rule 9037. Unredacted proof of claim was only available on CM/ECF docket for three days and was removed from public access on same date debtor filed motion. Debtor offered no evidence of actual damages. Under Arkansas law, there was no cause of action for invasion of privacy since unredacted claim did not constitute unreasonable intrusion upon seclusion of another as a matter of law. Access to filed document requires either password through CM/ECF or PACER, or appearing in clerk’s office during normal business hours and using computers available to public. Access to claims is only available to parties taking affirmative action, and debtor did not allege that any member of public had actually accessed or seen unredacted proof of claim.); Gonzalez Garcia v. Banco Bilbao Vizcaya Argentaria (In re Gonzalez Garcia), No. 09-0143, 2010 WL 3811298 (Bankr. D.P.R. Sept. 27, 2010) (Tester) (Unredacted proof of claim did not support private right of action under either § 105(a) or § 107(a). Court had authority under § 105(a) to sanction creditor for contempt, but debtor would need to show that personal information disclosed by defendant actually caused damages.); Maple v. Colonial Orthopaedics, Inc. (In re Maple), 434 B.R. 363 (Bankr. E.D. Va. July 21, 2010) (Huennekens) (Creditor violated Bankruptcy Rule 9037 by filing proof of claim containing personal information—including debtors’ phone numbers, dates of birth, Social Security numbers and insurance identification numbers—but debtors failed to state cause of action under §§ 105 or 107(c) for damages. Debtors did not follow proper procedure in Bankruptcy Rule 9011(b) to seek sanctions against creditor, but action to disallow claim was preserved. Action for invasion of privacy under Virginia law was dismissed, since common-law cause of action for invasion of privacy had been abrogated and no private right of action exists under Health Insurance Portability and Accountability Act of 1996 (HIPAA). Complaint stated viable cause of action for violation of Virginia’s Consumer Protection Act.); Davis v. Eagle Legacy Credit Union (In re Davis), 430 B.R. 902 (Bankr. D. Colo. June 21, 2010) (Brooks) (Unredacted proof of claim containing Social Security number, driver’s license number and date of birth is not actionable because debtor cannot prove injury for purposes of standing; neither Gramm-Leach-Bliley Act, 11 U.S.C. § 107 nor Bankruptcy Rule 9037 provides a private right of action, and plaintiff’s claims of invasion of privacy and emotional distress are too speculative.); Matthys v. Green Tree Servicing, LLC (In re Matthys), No. 09-50794, 2010 WL 2176086 (Bankr. S.D. Ind. May 26, 2010) (Metz) (Complaint alleging that creditor filed proof of claim with unredacted Social Security number in violation of Bankruptcy Rule 9037 was dismissed with respect to § 107(c), Gramm-Leach-Bliley Financial Services Modernization Act, Federal Rule of Civil Procedure 5.2, invasion of privacy, negligence and intentional infliction of emotional distress; but complaint stated cause of action for contempt under § 105(a). Except for contempt action, other rules, statutes and theories did not provide private right of action. Violation of Rule 9037 does not establish private right of action, but court has contempt authority under § 105 to enforce court rule. Further hearing was required to consider whether contempt was justified.); In re Stewart, No. 08-15643-JNF, 2010 WL 1427378, at *7 (Bankr. D. Mass. Apr. 9, 2010) (Feeney) (Verizon “demonstrated an indifference to the Debtor’s rights through its violation of Federal Bankruptcy Rule 9037 when it failed to redact financial account information from its proof of claim.” No separate damages awarded for Rule 9037 violation, but 8 collection letters and 16 collection calls warranted damages for willful violation of stay.); In re Chubb, 426 B.R. 695 (Bankr. E.D. Mich. Mar. 15, 2010) (Shefferly) (Creditor violated Bankruptcy Rule 9037 by including in proof of claim full account number and other identifying information; remedy for violation of Bankruptcy Rule 9037 is striking of proof of claim and prohibiting access to it, subject to amendment by creditor.); McKenzie v. Biloxi Internal Med. Clinic, P.A. (In re McKenzie), No. 09-05006-NPO, 2010 WL 917262 (Bankr. S.D. Miss. Mar. 10, 2010) (Olack) (Creditor violated Bankruptcy Rule 9037 by filing proof of claim containing full Social Security number and other identifying information; § 105(a) empowers court to enforce Rule 9037 with civil contempt sanctions. Debtors stated cause of action that disclosure of personal identifiers in proof of claim may satisfy publication element of tort for invasion of privacy under Mississippi common law.); Dixon v. Bay Fin., Inc. (In re Dixon), No. 09-05009-NPO, 2010 WL 501547, at *3 (Bankr. S.D. Miss. Feb. 5, 2010) (Olack) (Section 105(a) empowers court to compensate for any injury caused by filing proof of claim with debtor’s full Social Security number and other personal identifying information. Court need not address whether debtor has private right of action under Bankruptcy Rule 9037 or statutes. In addition to requiring correction of proof of claim, court may compensate debtor for losses sustained if “those losses are proven by credible evidence.”); Scott v. Memphis Orthopedic Grp. (In re Scott), No. 08-1212-DWH, 2009 WL 3294847 (Bankr. N.D. Miss. Oct. 13, 2009) (Houston) (Failing to redact personal identifiers does not mandate disallowance under § 502(b), but court can order redaction under Bankruptcy Rule 9037; count of complaint alleging that failure to redact personal identifiers on proof of claim violated HIPAA did not state cause of action, since HIPAA does not provide private right of action.); Killian v. Green Tree Servicing, LLC (In re Killian), No. 08-80250-HB, 2009 WL 2927950, at *10 (Bankr. D.S.C. July 23, 2009) (Burris) (Complaint alleging that Green Tree Servicing failed to redact PII information from proof of claim and motion did not state cause of action for state law negligence, but remedy under § 105 might be available to prevent future misconduct. “The allegation stated in the Complaint may affect the integrity of the bankruptcy process and once brought to light, the Court has the power to respond.”); Lentz v. Medical Econ. (In re Lentz), 405 B.R. 893 (Bankr. N.D. Ohio June 4, 2009) (Baxter) (Debtor had no private right of action under Bankruptcy Rule 9037, Gramm-Leach Bliley Act or § 105 when proof of claim contained unredacted Social Security number and information concerning debtors’ daughter; court previously restricted public access to proof of claim under Rule 9037, and further relief not necessary.); In re Gjestvang, 405 B.R. 316, 319–22 (Bankr. E.D. Ark. May 18, 2009) (Mixon) (No statute or rule authorizes an award of attorney’s fees when a creditor files a proof of claim with attachments that reveal the debtor’s full Social Security number. “[11 U.S.C. § 107] does not give rise to a private cause of action . . . . The court may strike the information under 107 as it did in both cases; however, attorney’s fees cannot be awarded pursuant to section 107. . . . The Gramm-Leach-Bliley Financial [Services] Modernization Act . . . 15 U.S.C. § 6805 . . . does not provide a private right of action. . . . Debtors cannot be awarded fees pursuant to Gramm-Leach-Bliley Act. . . . 28 U.S.C. § 1927 . . . looks to unreasonable and vexatious multiplications of proceedings, imposing obligations on attorneys to avoid dilatory tactics, and requires a finding of bad faith. . . . There was no proof offered of any bad faith. . . . Federal Rule of Civil Procedure 5.2 provides that in an electronic or paper filing, only the last four digits of a social security number may be used. Federal Rule of Bankruptcy Procedure 9037 is derived from Federal Rule of [Civil] Procedure 5.2 . . . . Rules governing procedure in the federal courts do not give rise to a private cause of action. . . . Section 105(a) may be invoked if the equitable remedy used is necessary to preserve a right provided for in the bankruptcy code . . . . Section 105(a) standing alone does not give a bankruptcy court the authority to award attorney’s fees.”); Cordier v. Plains Commerce Bank (In re Cordier), No. 08-2037, 2009 WL 890604, at *5 (Bankr. D. Conn. Mar. 27, 2009) (Dabrowski) (Agreeing with In re French, 401 B.R. 295 (Bankr. E.D. Tenn. Feb. 13, 2009) (Stair), damages not available for creditor’s failure to redact full Social Security number in attachments to proof of claim; debtor did not challenge validity or amount of claim, and there is no private right of action for violation of Bankruptcy Rule 9037. “The conduct alleged in the complaint—the Defendant’s failure to redact the Debtor’s social security number from the attachment before filing the Proof of Claim—does not rise to the level of egregiousness ordinarily required for the imposition of monetary sanctions pursuant to the Court’s inherent powers.”); Newton v. ACC of Enters., Inc. (In re Newton), No. 08-1106-DHW, 2009 WL 277437 (Bankr. M.D. Ala. Jan. 29, 2009) (Williams) (Filing proof of claim that included debtor’s full Social Security number will not support private right of action for damages under § 105 or § 107(c); Bankruptcy Rule 9037 was not yet applicable and no action was stated for invasion of privacy under Alabama law.); Russell v. Queen City Furniture (In re Russell), 402 B.R. 188, 195 (Bankr. N.D. Miss. Jan. 23, 2009) (Olack) (Causes of action to redress filing of proof of claim that failed to redact personal identifiers predominantly arose under Bankruptcy Code or arose in the bankruptcy case, and resulting core proceeding should not be ordered to arbitration. Proof of claim failed to redact debtor’s date of birth, Social Security number, telephone number and account number. Debtor’s adversary proceeding included an objection to the claim, violations of the Gramm-Leach-Bliley Act, contempt of court, violation of Bankruptcy Rule 9037 and state law actions for invasion of privacy and intentional or negligent infliction of emotional distress. Enforcement of arbitration agreement “would inherently conflict with the underlying purposes of the Bankruptcy Code.”); Southhall v. Check Depot, Inc. (In re Southhall), No. 08-00128-TOM, 2008 WL 5330001 (Bankr. N.D. Ala. Dec. 19, 2008) (Mitchell) (Filing proof of claim that included debtor’s full Social Security number did not violate § 107 of the Bankruptcy Code, was not subject to Bankruptcy Rule 9037 because that Rule was not effective at the time, does not constitute contempt of any provision of the Bankruptcy Code and was not an invasion of privacy under Alabama law. No relief can be granted under Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, because there is no private right of action under that Act.); In re Haefner, 345 B.R. 588 (Bankr. N.D. Ohio Mar. 24, 2006) (Speer) (Official Form 10, prior to October 17, 2005, did not require redaction of a debtor’s account number; proof of claim filed on October 10, 2005, that included account number is not disallowable under the E-Government Act of 2002, Pub. L. No. 107-347. Section 205(c)(3) of the E-Government Act of 2002 requires the Supreme Court to prescribe rules to protect privacy and security concerns relating to the electronic filing of documents. The Advisory Committee on Bankruptcy Rules addressed this issue at its March 2004 meeting and subsequently promulgated new Official Form 10, which instructs creditors only to include the “last four digits of account or other number by which creditor identifies debtor.” This modification became effective on October 17, 2005. It is doubtful that the E-Government Act confers a private right of action or that the failure to strictly comply with redaction requirement leads to disallowance.).
39 See, e.g., In re Branch, Nos. 14-02379-5-SWH, 15-05318-5-SWH & 15-01265-5-SWH, 2016 WL 4543770, at *5–*15 (Bankr. E.D.N.C. Aug. 31, 2016) (Humrickhouse) (Compensatory damages, attorney’s fees, limited punitive damages and injunctive relief are appropriate when creditor filed proofs of claims that included personal information in attachments in hundreds of cases and acted slowly to correct the problem. WakeMed Physician Practices filed proofs of claims in hundreds of Chapter 13 cases that included attachments containing Social Security numbers, patient account numbers, date of birth, and other personal information. Employee of creditor testified that she had limited or no training with respect to the filing of bankruptcy claims. “[U]ntil the motions to restrict access were filed in this case . . . , the court’s procedure for restricting public access was to provide the offending party with 30 days to redact the information before the court would actually restrict access. . . . As a result of . . . counsel’s prompting, the court adjusted its procedure to restrict access upon receipt of the motion . . . . [C]ase law overwhelmingly holds that there is no private right of action under HIPAA or § 107, and that the remedy under Rule 9037 is for the offending information to be restricted from public view. . . . However, many courts have held that § 105(a) gives the bankruptcy court the authority to sanction parties for contempt for violations of Rule 9037 under appropriate circumstances . . . . WakeMed submitted claims that included full social security numbers and dates of birth, which clearly is prohibited by Rule 9037. . . . Rule 9037 does not prohibit the inclusion of the debtor’s address . . . . [T]he inclusion of a telephone number does not violate Rule 9037. . . . [A]ccount IDs or patient numbers are probably not what was contemplated when Rule 9037 was created. . . . [D]ates of admission and discharge, medical record numbers, and other medical information . . . Rule 9037 does not address the redaction or disclosure of any of these items. . . . [T]he magnitude of the violation, and the fact that there was no supervision or training, indicates that WakeMed was more than negligent. . . . WakeMed apparently did not have procedures in place to have 159 . . . motions to restrict access to its claims immediately brought to the attention of counsel. As a result of the failure in procedure, there was a delay of four weeks . . . . This constitutes a ‘failure’ to take timely remedial action. . . . The court does not find the actions of WakeMed to be intentional or malicious, but the failure to have proper procedures in place resulted in WakeMed’s failure to take immediate action when the initial motions to restrict access were filed. . . . Ms. Clark and her counsel did the court and the public a service by bringing this matter to the attention of the court. The court will award Ms. Clark her actual expenses . . . . WakeMed has already agreed to pay for one year of credit monitoring for any debtor whose information was disclosed in violation of Rule 9037. . . . [T]he court will require WakeMed to send a new letter to all of the debtors and any non-debtor minor whose social security number or full date of birth was included in a proof of claim . . . offering credit monitoring for one year at no cost . . . . The court finds it appropriate to award fees to the Sasser Law Firm for its efforts. . . . [A] punitive sanction in the amount of $70,000 is appropriate in this case. WakeMed will be directed to pay the amount of $50,000 to the court, and $10,000 each to Ms. Clark and Ms. Bostick for their roles as ‘stalking horses’ in bringing this matter to the attention of the court and forcing corrective action by WakeMed.”).
40 Fed. R. Bankr. P. 3001(c)(2)(A) (emphasis added).
41 See, e.g., Resurgent Capital Servs., L.P. v. Harrington (In re Cushman), 589 B.R. 469, 485–99 (Bankr. D. Me. June 29, 2018) (Fagone) (Resurgent violated Bankruptcy Rule 9011(b) by failing to capture evidence for its allegation of principal, interest and fees on proofs of claim. “Resurgent has historically understood that interest on a credit card debt was recapitalized monthly, such that the total prepetition balance would be properly identified on a proof of claim as principal. . . . As originally designed, Resurgent’s BKS system did not have the ability to break out interest and fees on proofs of claim. . . . However, since . . . December 2016 . . . , Resurgent has implemented a process to itemize principal and interest on proofs of claim filed in the Eastern District of Virginia, and it is working on a process that would permit such itemization on all proofs of claim filed nationwide. . . . Resurgent may have also transgressed Rule 9011(b) by characterizing the entire amount of Ms. Cushman’s credit card debt as principal. . . . For the purposes of this decision, the Court assumes, without deciding, that Resurgent violated Rule 9011(b) by failing to make well-supported allegations of principal, interest, and fees on the statement attached to the Cushman POC. . . . Resurgent has voluntarily initiated an update to its systems that will permit itemization of principal, interest, and fees on all unsecured proofs of claim filed in the future. Given those voluntary efforts, sanctions are not necessary to bring Resurgent into compliance with Rule 3001(c)(2)(A) going forward.”); Thomas v. Midland Funding, LLC (In re Thomas), 578 B.R. 355, 361–64 (Bankr. W.D. Va. Nov. 30, 2017) (Connelly) (Class action complaint alleging that Midland knowingly and purposefully filed proofs of claims in Chapter 13 cases that did not itemize interest, fees and costs in violation of Bankruptcy Rule 3001 stated claims under FDCPA. “[A] debtor would be misled if interest was reported as principal on proofs of claim because it could make a difference in a debtor’s bankruptcy case. . . . The complaint charges that Midland had a business practice which caused it to file proofs of claim that did not comply with the Federal Rules of Bankruptcy Procedure. . . . [T]he plaintiffs have pleaded a potential injury: the plaintiffs have pleaded how they have been deprived information to evaluate whether to object to the claim which seeks to collect amounts greater than the plaintiffs admit they owe . . . . The complaint alleges Midland had a practice of filing claims to seek recovery from a bankruptcy estate, knew that its practice of reporting amounts on its claims was inconsistent with applicable rules for filing these proofs of claim in a bankruptcy case, and yet did it anyway. The plaintiffs allege this conduct is an unfair means to collect a debt, or an unconscionable means to collect a debt.”); McClain v. Midland Funding, LLC (In re McClain), No. AP 16-80100-HB, 2016 WL 6783248 (Bankr. D.S.C. Nov. 10, 2016) (Burris) (Complaint survives motion to dismiss that alleges Midland Funding, LLC, routinely filed proofs of claims in Chapter 13 cases that falsely stated no interest, fees or expenses were included. Remaining for trial: whether such claims violated Bankruptcy Rule 3001(c)(2)(A) and whether a remedy is available under Bankruptcy Rule 3001(c)(2)(D).); In re Jimenez, 487 B.R. 543 (Bankr. D. Colo. Feb. 1, 2013) (Tallman) (Mortgage lender did not comply with Bankruptcy Rule 3001(c)(2) requirement to itemize prepetition additions to principal and compensable costs, precluding presentation of evidence of unitemized fees. Lender was required to reimburse debtor for reasonable expenses incurred objecting to proof of claim, and lender could not recover its own costs in responding to objection.).
42 Fed. R. Bankr. P. 3001(c)(1).
43 Fed. R. Bankr. P. 3001(c)(3).
44 See, e.g., Resurgent Capital Servs., L.P. v. Harrington (In re Cushman), 589 B.R. 469, 494–95 (Bankr. D. Me. June 29, 2018) (Fagone) (Resurgent violated Bankruptcy Rule 9011(b) by alleging a last transaction date on the proof of claim that was not supported by any evidence. “Resurgent made a reasonable inquiry and a representation supported by evidence in its possession as to Ms. Cushman’s liability on the debt . . . . Resurgent also made a reasonable inquiry and a representation supported by evidence in its possession as to the date of the last payment on the debt underlying the Cushman POC. . . . The same cannot be said of Resurgent’s allegation of the last transaction date. . . . It was objectively unreasonable for Resurgent to rely on the data string for information regarding the last transaction date because the data string did not include that type of information. This reliance was culpably careless.”).
45 See, e.g., In re Bareford, No. 09-61072, 2010 WL 3528604, at *2 (Bankr. S.D. Ga. Aug. 3, 2010) (Dalis) (Official Form 10 requires creditor to attach redacted copies of documents supporting claim, but summary may be sufficient; it is not necessary to attach original credit card agreement to satisfy Bankruptcy Rule 3001. “First, the underlying credit card agreement does not create debt; it is the actual use of the credit card that creates the obligation to repay . . . . Second, requiring a creditor to attach a voluminous original credit card agreement, along with any subsequent amendments, would be unduly burdensome ‘to both the creditor and those that have to review the claims for their validity, including the Chapter 13 Trustee and [the] debtor’s attorney.’”); In re Armstrong, 320 B.R. 97, 104–05 (Bankr. N.D. Tex. Jan. 18, 2005) (Felsenthal, Houser, Hale) (Official Form 10 and Bankruptcy Rule 3001 required eCast to attach supporting documents or a summary including proof of the sale or assignment of its claim; the failure to do so forfeits the prima facie validity of the claim under Bankruptcy Rule 3001 but does not disallow the claim. Chapter 13 debtor did not violate good-faith requirement in § 1325(a)(3) by filing blanket objections to unsecured claims that were not accompanied by the proper supporting documents. “[W]here the creditor has not met the standards of Bankruptcy Rule 3001 and Official Form 10, the claim is not automatically disallowed; rather, it is deprived of the prima facie validity which it could otherwise have obtained. . . . [L]ack of proper supporting documentation does not, in and of itself, result in a claim’s disallowance; rather, it strips it of any prima facie validity, requiring the creditor to offer the supporting documentation to carry its burden of proof in the face of an objection. . . . Official Form 10 allows for a summary to be attached to the claim. . . . [A] summary attached to the claim must include: (1) the names and account number . . . (2) the amount of the debt; (3) be in the form of a business record . . . and (4) if the claim includes charges such as interest, late fees and attorney’s fees, the summary must include a statement giving a breakdown of those elements.”).
46 See Fed. R. Bankr. P. 3001(d).
48 2015 Committee Note to Official Form 410A.
49 Fed. R. Bankr. P. 3001(c)(2)(C).
50 See, e.g., In re Milliman, No. 17-10393, 2018 WL 1475937, at *2–*5 (Bankr. D. Kan. Mar. 23, 2018) (Nugent) (Ocwen Loan Servicing’s stubborn refusal to correct overstatement of escrow shortage on proof of claim triggers sanctions under Bankruptcy Rule 3001(c)(2)(D) for attorney’s fees and expenses incurred by the debtors to correct the mistake. Ocwen filed a Mortgage Proof of Claim Attachment stating an escrow shortage of $4,383.26. Ocwen’s counsel filed an Official Form 410S-2 notice of postpetition mortgage fees requesting an allowance of $400 for filing the proof of claim. After months of fruitless inquiries to Ocwen and its counsel about the escrow shortfall the debtors objected to Ocwen’s proof of claim and served discovery. Ocwen did not respond. “At the claim objection hearing, [counsel] admitted that Ocwen filed an erroneous initial claim, conceded that the escrow shortage was much less than represented, and apologized for his client’s error. . . . [T]he claim lacked ‘an itemized statement of . . . charges’ as required by Rule 3001(c)(2)(A), an accurate statement of the ‘amount necessary to cure’ as required by Rule 3001(c)(2)(B), and accurate information on the Attachment that is required to be filed by Rule 3001(c)(2)(C). That opens the door to sanctions as provided by Rule 3001(c)(2)(D). . . . Accurate information is particularly critical in a chapter 13 . . . . For reasons unexplained, Ocwen didn’t do it right. And, when called upon to explain or correct its misstatements, Ocwen and its counsel failed to meaningfully respond to the debtors’ concerns, their lawyers’ informal inquiries, or even their formal discovery efforts. . . . Ocwen and any other creditors who read this need to know that courts take filing incorrect proofs of claim seriously. We get more serious (and suspicious) when creditors are unresponsive or evasive about their errors and refuse to fix them. Bankruptcy judges cannot permit an environment to exist in which claims supposedly filed under penalty of perjury can no longer be trusted to be correct without rendering Rule 3001’s presumption of validity meaningless. This would cripple the ability of the bankruptcy system to function efficiently. Filing accurate claims is a bedrock requirement and, as I said at the top, it’s not that hard.”).
53 508 U.S. 464, 113 S. Ct. 2187, 124 L. Ed. 2d 424 (June 7, 1993).
55 11 U.S.C. § 1322(e), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 305, 108 Stat. 4106 (1994). See § 83.2 Section 1322(e): Contracts after October 22, 1994.
56 See discussion of calculation of cure payments beginning at § 84.1 In General.
57 See § 53.10 Make Payments to Creditors Unless Plan or Confirmation Order Provides Otherwise; § 54.6 Compensation on Direct Payments by Debtor; § 74.8 Direct Payment of Secured Claims by Debtor before BAPCPA; § 74.9 Direct Payment of Secured Debt after BAPCPA; § 85.6 Direct Payment of Mortgage or Payment by Trustee; and § 89.1 Direct Payments by Debtor.
58 See discussion beginning at § 76.1 Valuation, Claim Splitting and Dewsnup.
59 See Fed. R. Bankr. P. 3001(f): “A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” But see In re Pourtless, 93 B.R. 23 (Bankr. W.D.N.Y. Nov. 23, 1988) (McGuire) (Determination of the value of collateral under § 506 is a process separate from the allowance of proofs of claim, and thus a secured claim holder’s notation of value on its proof of claim is not binding at confirmation or at a valuation hearing.).
60 See discussion beginning at § 75.1 In General: Modification Without § 506.
62 See, e.g., Simmons v. Ford Motor Credit Co. (In re Simmons), 224 B.R. 879, 885, 885 (Bankr. N.D. Ill. Sept. 25, 1998) (Lefkow) (Court dismisses debtor’s adversary proceeding challenging Ford Motor Credit’s practice of filing proofs of claim that assert fully secured status notwithstanding that value of car is known to be less than the amount of Ford’s claim. Ford Credit filed a proof of claim for $16,873 asserting that the claim was fully secured. The loan documents attached to the proof of claim showed that the debtor bought the car for an original purchase price of $16,424 more than a year before the Chapter 13 petition. Debtor filed a complaint, seeking to represent a class of all Chapter 13 debtors in cases where Ford Credit had filed proofs of claim and asserting that Ford routinely overstated the value of its collateral in proofs of claim to gain the strategic advantage of automatic allowance under § 502. Court held that “§ 105(a) does not authorize the relief she seeks.” “[T]he Code’s provisions for the allowance of claims and the decision in [Associates Commercial Corp. v. Rash, 520 U.S. 953, 117 S. Ct. 1879, 138 L. Ed. 2d 148 (June 16, 1997),] all seem to contemplate that both debtor and creditor be afforded equal opportunity to advance their interests in the valuation process.” The court deferred to another day the question whether the bankruptcy court had jurisdiction over the debtor’s claims of violation of Illinois consumer fraud and deceptive business practices statutes.). See also Kerney v. Capital One Fin. Corp. (In re Sims), 278 B.R. 457, 468–69 (Bankr. E.D. Tenn. May 8, 2002) (Parsons) (In class action by standing trustee and debtors alleging systematic overstatement of proofs of claim by Capital One Financial, Official Bankruptcy Form 410 is not a court order, thus failure to follow instructions on the Form is not punishable by contempt or independently actionable. “Official Form 410 is not an order of the court and . . . the failure to comply with the form is not contemptuous. . . . [T]he Sixth Circuit Court of Appeals’ decision in [Kelvin v. Avon Printing Co. (In re Kelvin Publishing, Inc.), 72 F.3d 129 (table) (6th Cir. Dec. 11, 1995) (not for publication) (Keith, Jones, Boggs),] leads this court to conclude that the Sixth Circuit would not impose contempt sanctions for a violation of the official forms and bankruptcy rules.”).
63 Simmons v. Ford Motor Credit Co. (In re Simmons), 237 B.R. 672, 675 & n.2 (Bankr. N.D. Ill. Feb. 9, 1999) (Lefkow), reconsidering 224 B.R. 879 (Bankr. N.D. Ill. Sept. 25, 1998) (Lefkow).
64 See discussion of valuation beginning at § 76.4 Valuation in Chapter 13 Cases before Rash. See also discussion of special rules governing 910-day car claims beginning at § 75.1 In General: Modification Without § 506 and continuing at § 87.7 910-Day PMSI Car Claims after BAPCPA: A Reprise.
66 230 F.3d 890 (7th Cir. Aug. 25, 2000) (Bauer, Easterbrook, Ripple).
67 Adair v. Sherman, 230 F.3d at 894–96.
69 See above in this section, and see § 135.1 Timing, Procedure and Evidence Presumption and § 135.2 Allowance and Objections to Claims: Changes by BAPCPA.
70 262 B.R. 761 (Bankr. N.D. Ill. May 31, 2001) (Wedoff).
71 502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (Jan. 15, 1992).
72 In re Fareed, 262 B.R. at 765–66.
73 263 B.R. 233 (Bankr. C.D. Ill. June 12, 2001) (Perkins).
74 See also In re Adams, 264 B.R. 901 (Bankr. N.D. Ill. Aug. 3, 2001) (Schmetterer) (Distinguishing Adair v. Sherman, 230 F.3d 890 (7th Cir. Aug. 25, 2000) (Bauer, Easterbrook, Ripple), confirmation does not preclude debtors’ motion to disallow secured claim when Ford filed a claim after confirmation.).
75 See discussion beginning at § 102.1 Debtor Can Assume, Assign or Reject Executory Contracts.
76 See discussion beginning at § 73.3 Priority Claims Added or Changed by BAPCPA.
77 See Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106 (1994).
79 See In re Avery, No. 15-30074, 2015 WL 4498181, at *3 (Bankr. N.D. Ohio July 22, 2015) (Whipple) (Proof of claim without signature does not comply with Official Form 10. Unsigned proof of claim is not prima facie evidence of validity and amount of claim. “As a result, Debtor has no evidentiary burden to carry in objecting and Claimant has the burden of both going forward and proving its claim by a preponderance of the evidence.”).
80 See In re Obasi, No. 10-10494 (SHL), 2011 WL 6336153, at *4 (Bankr. S.D.N.Y. Dec. 19, 2011) (Lane) (Attorney electronically signing proof of claim must personally review claim and documentation before filing. Advisory Committee Note to Bankruptcy Rule 9011 clearly provides that person signing, filing, submitting or advocating document has “nondelegable responsibility to court.” Attorney who allowed another to use ECF password and who did not review proof of claim or attachments violated Rule, but U.S. trustee did not comply with safe harbor provisions of Rule 9011(c), preventing sanctions.).
81 589 B.R. 469 (Bankr. D. Me. June 29, 2018) (Fagone).
82 Resurgent Capital Servs., L.P. v. Harrington (In re Cushman), 589 B.R. at 482–98 (“In the District of Maine, between December 21, 2011 and September 25, 2013, Resurgent filed at least 149 proofs of claim bearing Ms. Gaines’s signature that Resurgent is unable to demonstrate that Ms. Gaines reviewed. . . . [O]n December 1, 2014, Resurgent created a draft policy . . . that specified that ‘[a]ll proofs of claim are reviewed and approved by the claim signer.’ . . . The policy was not implemented by Resurgent until February 19, 2015 or later. . . . On February 19, 2015, Resurgent learned that the United States Trustee for Region 13 intended to take discovery regarding Resurgent’s proof of claim practices . . . . [T]he Court agrees with the UST’s assertion that the claims processor who reviewed the Cushman POC should have been the person who signed it. . . . Resurgent may have failed to comply with the instructions on Official Form 10 by affixing Ms. Gaines’s signature to all unsecured proofs of claim generated by the BKS system, including the Cushman POC. If so, Resurgent may have also contravened Rule 3001(a), which requires a proof of claim to ‘conform substantially to the appropriate Official Form.’ . . . Resurgent’s prior signature practice may have failed to comport with the instructions on Official Form 10 and run afoul of Rule 3001(a), that practice did not violate Rule 9011(b).”). See also Resurgent Capital Servs., L.P. v. Harrington (In re Cushman), No. 14-10692, 2017 WL 818254, at *2–*8 (Bankr. D. Me. Mar. 1, 2017) (Fagone) (Bankruptcy court refuses to dismiss Resurgent’s declaratory action with respect to whether its nationwide “robo-signing” procedures violated Bankruptcy Rule 9011 and whether Resurgent must remediate. “Before April 2015, all Resurgent proofs of claim were filed under the signature and using the ECF credential of a single Resurgent claims processor named Susan Gaines. Many of these proofs of claim were not reviewed by Ms. Gaines personally but were instead reviewed by other Resurgent claims processors, whom Ms. Gaines had trained and directed to use both her signature and her ECF credential for filing. In April 2015, Resurgent changed its proof-of-claim practices to ensure that each Resurgent employee who reviews a proof of claim files that proof of claim using his or [her] own signature and ECF credentials. . . . Resurgent filed this adversary proceeding against the U.S. Trustee . . . seeking a declaratory judgment . . . that it is not subject to sanctions under Bankruptcy Rule 9011 . . . and . . . that it need not amend [its] proof of claim to the extent that the claim is factually accurate. Resurgent also filed two other adversary complaints for similar declaratory relief . . . in the Northern District of Texas and . . . in . . . Missouri . . . . All events leading to Resurgent’s alleged liability under Rule 9011 have already occurred. . . . There is nothing speculative or contingent about the events that undergird the parties’ dispute here. . . . [T]his case now has the requisite adversity, immediacy, and reality. . . . Resurgent may not have initiated its requests for declaratory relief if the USTP had not demanded a significant sum of money and threatened litigation regarding the challenged conduct.”).
83 See Carlisle v. United States Dep’t of Justice (In re Carlisle), 320 B.R. 796 (M.D. Pa. Dec. 15, 2004) (Caldwell) (IRS proof of claim substantially complies with the Official Form when it contained the required signature but lacked a “printed name”; IRS is not required to attach documentation to support its proof of claim because a tax claim is based on a statute, not on a writing.).
84 In re Isom, 321 B.R. 756, 757 (Bankr. N.D. Ga. Feb. 8, 2005) (Bonapfel) (A proof of claim signed by an attorney is a claim signed by an agent authorized by the creditor. “Although the attorney signing the proof of claim is not admitted to practice in this case or in this Court, there is no requirement that an attorney be admitted to this Court’s bar in order to be authorized to sign and file a proof of claim on behalf of a client.”). Accord St. Clare v. Bank of Am., N.A. (In re St. Clare), No. NC-13-1507-JuKuD, 2014 WL 4089344 (B.A.P. 9th Cir. Aug. 19, 2014) (not for publication) (Jury, Kurtz, Dunn) (Proof of claim signed by “attorney for creditor” satisfied agency requirement; claim substantially complied with Bankruptcy Rule 3001 and was prima facie valid.).
85 Fed. R. Bankr. P. 9010(c) (emphasis added). See, e.g., In re Dunklin, No. 04-41631 DHS, 2006 WL 2806234, at *5 (Bankr. D.N.J. Sept. 27, 2006) (not for publication) (Steckroth) (Citing Bankruptcy Rule 9010(c), proof of claim can be filed by Georgia attorney in New Jersey bankruptcy case. “Federal Rule of Bankruptcy Procedure 9010 . . . requires a power of attorney only if the authorized agent is undertaking an action other than the execution and filing of a proof of claim. . . . [T]he preparation and filing of a proof of claim is an administrative function that can be performed by an authorized agent. Here, McCalla Raymer is national counsel to National City. As such, McCalla Raymer’s attorneys are admitted to practice in other jurisdictions. That said, it would prove illogical to permit non-lawyers to file proofs of claims in bankruptcy court and not permit attorneys, even if not admitted in this jurisdiction, to do the same.”).
86 See § 135.1 Timing, Procedure and Evidence Presumption; § 135.3 Documentation and Assigned Claims; and § 138.8 Mortgage Claim Issues. See, e.g., Brown v. American Home Mortg. Servicing, Inc. (In re Brown), No. 10-01210-NPO, 2012 WL 3150320 (Bankr. N.D. Miss. July 6, 2012) (Olack) (Loan servicer was real party in interest, with standing to file proof of claim on behalf of mortgagee. Issues remained with respect to whether claim was enforceable. During prior bankruptcy case, order had been entered finding mortgage current—presenting issue whether creditor was in contempt for seeking fees for services rendered during prior case. Court declined creation of private right of action for filing false proof of claim.); Densmore v. Litton Loan Servicing, L.P. (In re Densmore), 445 B.R. 307 (Bankr. D. Vt. Mar. 21, 2011) (Brown) (Standing to file proof of claim depended on proof that mortgage note was endorsed to Litton before the petition.).
87 See § 138.2 Claims for Creditors’ Attorneys’ Fees; § 138.3 Creditors’ Attorneys’ Fees: New Recovery Rights after BAPCPA; and § 138.7 Miscellaneous Claims Issues. See, e.g., Harris v. First Union Mortg. Corp. (In re Harris), Nos. 96-14029-MAM, 00-11321-MAM-13, Adv. No. 99-1144 (Bankr. S.D. Ala. May 10, 2002) (Mahoney) (Text available at https://www.alsb.uscourts.gov) (After trial in class action alleging that First Union Mortgage Corporation failed to disclose attorneys’ fees for preparation of proofs of claim: “From 1993 or 1994 onward, First Union has had a consistent policy of not disclosing any attorneys fees charged for filing proofs of claim. It elected to outsource that function and put the cost on borrowers, but it never disclosed the cost. . . . The Court concludes that the nondisclosure should be sanctioned. First Union gave debtors no notice at all of a fee added to their accounts. . . . [D]ebtors should be awarded $2,000,000 in punitive damages. . . . [P]rejudgment interest should be paid to every plaintiff who has paid some or all of the attorneys fee posted to his or her account. . . . [A]ttorneys fees will be determined at a later hearing.”). See also Harris v. First Union Mortg. Corp. (In re Harris), 281 B.R. 327 (Bankr. S.D. Ala. Feb. 8, 2001) (Mahoney); Harris v. First Union Mortg. Corp. (In re Harris), 281 B.R. 323 (Bankr. S.D. Ala. Feb. 8, 2001) (Mahoney); Dean v. First Union Mortg. Corp. (In re Harris), 280 B.R. 876 (Bankr. S.D. Ala. Aug. 3, 2001) (Mahoney); Dean v. First Union Mortg. Corp. (In re Harris), 280 B.R. 724, 726 (Bankr. S.D. Ala. July 25, 2001) (Mahoney) (“The proof of claim filed by First Union disclosed no postpetition fees with any specificity. Only a total arrearage sum was stated which may or may not have included the $150 attorneys fee the Court now knows was posted to Dean’s account.”).
88 See, e.g., Ballard v. Chrysler Fin. Corp. (In re Powe), 278 B.R. 539, 553–56 (Bankr. S.D. Ala. May 10, 2002) (Mahoney) (After trial of a class action alleging failure to disclose and unreasonableness of fees added to oversecured claims by Chrysler Financial Corporation, disclosure of attorneys’ fees on proofs of claim was adequate. Citing § 506(b), “some disclosure of a postpetition/preconfirmation fee is required. . . . [P]ostpetition/preconfirmation attorneys fees must be included in a creditor’s proof of claim or an application for compensation or the fees cannot be collected from a debtor and are discharged.” Citing Welzel v. Advocate Realty Investments, Inc. (In re Welzel), 275 F.3d 1308 (11th Cir. Dec. 17, 2001) (en banc), “if a creditor discloses that an attorneys fee has been charged regardless of whether Chrysler discloses the fee is prepetition or postpetition, that disclosure is sufficient because the review will be the same. . . . Chrysler’s attorneys to the extent the Court could determine from the evidence, always stated at least that an ‘attorneys fee’ was being charged if Chrysler was oversecured or otherwise entitled to a fee. . . . [T]he fact that a fee was disclosed is sufficient according to Welzel. . . . Charging a flat fee of $225-275 is not inappropriate or unfair. . . . [P]reparing and filing a proof of claim is not a simple task. . . . [An] attorney may properly be used to file a proof of claim if a reasonable fee is charged.”).
89 See Tate v. NationsBanc Mortg. Corp. (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. Oct. 2, 2000) (Whitley). See also § 138.2 Claims for Creditors’ Attorneys’ Fees; § 138.3 Creditors’ Attorneys’ Fees: New Recovery Rights after BAPCPA; and § 138.8 Mortgage Claim Issues.
95 See discussion of plan modification before confirmation beginning at § 114.1 Timing, Procedure and Form.
96 See discussion beginning at § 116.1 Standing to Object.