§ 133.1     General Rules: No Enlargement or Exceptions, Except . . .
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 133.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The 90-day and 180-day bar dates for the timely filing of proofs of claim have been strictly construed by the courts.1 There are a few statutory exceptions; the Rules add a few more; and reported decisions occasionally find exceptions outside the Code and Rules.

[2]

The 180-day period within which a governmental unit can file a timely claim is subject to two statutory exceptions: (1) “such time as the Federal Rules of Bankruptcy Procedure may provide”; and (2) “in a case under chapter 13, a claim of a governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on or before the date that is 60 days after the date on which such return was filed as required.”2

[3]

Under Bankruptcy Rule 3002(c)(1) as amended in 1996, a governmental unit “for cause,” on motion filed within the initial 180-day period, can be granted a longer time to file a claim. On December 1, 2008, Bankruptcy Rule 3002(c)(1) was further amended to provide that “for a claim resulting from a tax return filed under § 1308 . . . [the claim] is timely filed if it is filed not later than 180 days after the date of the order for relief or 60 days after the date of the filing of the tax return, whichever is later.”3

[4]

Between October 22, 1994, the effective date of the 1994 amendment to § 502(b)(9) of the Code, and December 1, 1996, the effective date of the 1996 amendment to Bankruptcy Rule 3002(c), one bankruptcy court interpreted the interaction of § 502(b)(9) and (former) Bankruptcy Rule 3002(c) in the context of a governmental unit’s request for an extension of time to file a proof of claim. In In re Lang,4 a county sought permission in February of 1996 to file a proof of claim in a Chapter 13 case in which the general claims bar date expired on August 15, 1995, and the 180-day bar date for governmental claims expired on October 2, 1995. Reading § 502(b)(9) and former Bankruptcy Rule 3002(c)(1), the bankruptcy court denied the county’s motion:

Pima County is clearly a subdivision of the state of Arizona and, therefore, [11 U.S.C. § 502(b)(9) and Fed. R. Bankr. P. 3002(c)(1)] provide[] an exception to the claims bar date if two requirements are met: (1) a motion is made before the expiration of the time for filing the claim; and (2) cause is shown. This is fatal to Pima County’s request, because its request for an extension was made in February, whereas the bar date for governmental claims expired in October.5
[5]

The court in Lang would have permitted the county to file a motion for extension of time within the 180-day period described in § 502(b)(9) notwithstanding the inconsistent 90-day provision of former Bankruptcy Rule 3002(c)(1). Between October 22, 1994, and December 1, 1996, it is arguable that a governmental unit had to make its motion for extension of time within the 90 days allowed by former Bankruptcy Rule 3002(c)(1), although timely proof of a governmental unit’s claim could be filed within 180 days of the order for relief. This inconsistency was eliminated by the 1996 amendments to Bankruptcy Rule 3002(c)(1).

[6]

Lang also addressed the argument that the 1994 amendment to § 502(b)(9) (inadvertently) created an exception to the timeliness requirements for late-filed claims that would be entitled to distributions in a Chapter 7 case under § 726(a)(1) through (3). Discussed in more detail above,6 § 502(b)(9), as amended in 1994, disallows untimely filed claims, “except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of § 726(a).”7 Section 726 of the Code lists the priority for distributions in a Chapter 7 case and allows payment of certain late-filed claims after timely filed claims have been paid in full. The county argued in Lang that the cross-reference to § 726 in § 502(b)(9) permitted the allowance of its late-filed claim in a Chapter 13 case, at least to the extent the claim would be entitled to distributions in a Chapter 7 case. The bankruptcy court found no statutory support for this extension of the bar date in Chapter 13 cases:

This court must conclude that the exceptions for late-filed claims set forth in § 726, and referenced in § 502, are only applicable to claims filed in a Chapter 7 case. This is confirmed by Section 103(b) which provides: “Subchapters I and II of chapter 7 of this title [which include § 726] apply only in a case under such chapter (comment added).”8
[7]

Other subparts of § 502 could provide exceptions to the usual bar dates for the timely filing of proofs of claim. For example, § 502(e) provides special rules for the allowance of claims for reimbursement or contribution of an entity that is liable with the debtor. One enterprising creditor attempted to use § 502(e)(1) as an endrun around the 90-day bar date in Bankruptcy Rule 3002(c). In In re Rosenthal,9 the confirmed plan provided that a co-signed student loan would be paid by the cosigner. After the claims bar date, the cosigner defaulted and the creditor filed a proof of claim, arguing that § 502(e)(1) allowed the tardy claim. The bankruptcy court disagreed:

[Section] 502(e)(2) . . . allows the co-signer to file a claim, so that the co-signer can get paid through the plan for payments to be made by the co-signer. To be eligible to be paid, the co-signer must file a proof of claim before the claim date. That section has no application to or confers no rights on a creditor holding the co-signed obligation.10
[8]

Bankruptcy Rule 3002(c) contains exceptions to the 90-day deadline for timely filing of claims by nongovernmental units. For example, in one reported Chapter 13 case, a district court remanded the question whether the Montgomery County Department of Human Resources was the representative of an infant for purposes of the exception to the 90-day filing deadline in Bankruptcy Rule 3002(c)(2) when the department filed an otherwise tardy claim on behalf of a child support creditor.11 On remand, the bankruptcy court found that the Department of Human Resources was the representative of the minor child and that it was appropriate to extend the bar date for filing claims because disallowance of the Department’s claim might subject the debtor to contempt in state court and Bankruptcy Rule 3002(c)(2) permitted extension of the bar date even after the time for filing claims had expired.12

[9]

When a creditor suffers defeat in an avoidance action during a bankruptcy case, Bankruptcy Rule 3002(c)(3) allows 30 days for the timely filing of any resulting unsecured claim—measured from when the judgment becomes final. The 30-day period in Bankruptcy Rule 3002(c)(3) has been strictly construed to preclude allowance when the Chapter 13 trustee avoided a preferentially perfected lien and the creditor failed to file its proof of claim within the original 90-day deadline or within the 30-day deadline after entry of the avoidance order.13

[10]

Under Bankruptcy Rule 9006, the 90-day and 180-day periods in Bankruptcy Rule 3002(c) cannot be enlarged except under the conditions stated in Rule 3002(c) and cannot be reduced under any circumstances.14 Many reported decisions—before and after the 1994 and 2005 Code amendments and applying various versions of the Rules—have concluded that a bankruptcy court has no power to extend the deadlines for timely filing claims for any equitable reason, including lack of notice or excusable neglect.15

[11]

Like every other immutable time period fixed by the Code or Rules, the “absolute bar” to the allowance of claims filed after the 90-day and 180-day periods in Bankruptcy Rule 3002(c) are sometimes finessed, and late claims are sometimes allowed in Chapter 13 cases.16

[12]

Probably the largest exception to the time limits in Bankruptcy Rule 3002 is that a claim is “deemed allowed” under § 502(a) if a proof of claim is filed and no party in interest objects.17 Timeliness is not a condition precedent to the filing of a claim under § 501 or § 502. In the absence of objection, even an untimely proof of claim is allowed by § 502(a) and entitled to payment through the plan in the same manner as other claims of its class.18

[13]

This rule—“allowed unless objected to, even if untimely filed”—is not upset by the 1994 amendments to § 502. Section § 502(b)(9) as amended imposes timely filing as a prerequisite for allowance.19 However, § 502(b) is structured that disallowance is triggered only if “objection to a claim is made.”20 The penalty of disallowance now specified in § 502(b)(9) is not automatically suffered by the creditor that files a tardy proof of claim.

[14]

The procedure for handling proofs of claim in many jurisdictions puts the burden on the debtor, the trustee and other creditors to object to an untimely proof of claim. When a proof of claim is filed after 90 days after the first date set for the meeting of creditors (180 days after the petition, or 60 days after filing of required tax return under § 1308, for governmental units), the trustee codes the claim to a computer-maintained claims register, and a notice is issued that parties in interest have some period of time, typically 30 days,21 in which to object to the (untimely) claim. In the absence of a timely written objection, the late-filed claim will be paid in its appropriate class as if it were timely filed.

[15]

Chapter 13 debtors often elect not to object to untimely proofs of claim. The debtor may want to pay the creditor. Other creditors have standing to object to an untimely claim and there are advantages to doing so, but few creditors can justify the expense of monitoring and litigating the filing of untimely claims in Chapter 13 cases.22

[16]

In many jurisdictions, the Chapter 13 trustee does not routinely object to untimely filed claims, on the theory that only the debtor has sufficient information or incentive to know whether to object. In such a jurisdiction, the debtor or a creditor must file a written objection, else the untimely claim will be paid as if timely filed. In other jurisdictions, Chapter 13 trustees always object to late-filed proofs of claim, and other parties in interest can be less diligent in policing the claims-filing deadline.

[17]

Good arguments can be made that the Chapter 13 trustee has a fiduciary obligation to object to untimely filed proofs of claim. No matter what the provisions of the plan, allowance of an untimely filed claim affects either the amount or the timing of distributions to creditors with timely filed claims. Successful objection to the untimely filed claim protects the rights of diligent creditors and maximizes the likelihood of completion of the plan as confirmed. Chapter 13 trustees have a statutory obligation to review proofs of claim and to object to proofs of claim when a purpose would be served.23 In a Chapter 13 case, there is almost always a purpose served in objecting to untimely filed claims.

[18]

A few reported decisions embrace efforts by creditors to enlarge or take exception to the claim-filing deadlines, without much respect for the Code or Rules. For example, the U.S. Court of Appeals for the Seventh Circuit found “equitable considerations” to permit the IRS to file an untimely claim for taxes, notwithstanding that Bankruptcy Rule 3002(c) combines with Bankruptcy Rule 7015 to prohibit the untimely claim as an amendment to a timely claim.24 The Bankruptcy Appellate Panel for the Ninth Circuit held that “equitable tolling” applied to the 180-day period in § 502(b)(9) to allow a claim filed by the IRS on the 191st day when the Chapter 13 case was dismissed by clerical error 83 days after filing and reinstated on day 167.25 The BAP was reversed by the Ninth Circuit.26 “Equities” were cited by another court to allow a late-filed proof of claim by a second mortgage holder when stay relief was granted to the first mortgage holder and, after a foreclosure sale, the second mortgage holder became an unsecured claim holder and the only remaining creditor in the case.27 Acknowledging contrary authority, one bankruptcy court cited lack of “due process notice” as a ground for allowing a late-filed proof of claim.28

[19]

Claims actually filed in a superseded Chapter 11 case have been allowed in a subsequent Chapter 13 case despite the absence of a reference to conversion to Chapter 13 in Bankruptcy Rule 1019(3).29 Claims filed after the 90-day deadline, but before confirmation of the plan, were allowed over a Chapter 13 trustee’s objection when the debtor desired to pay the claim and disallowance would “frustrate” confirmation of the plan.30 In contrast, another court found no authority to allow a late-filed claim notwithstanding that the debtor stipulated allowance.31 When the confirmed plan specifically provides for payment of late-filed claims, the general rule disallowing late-filed claims is overcome and the holder of a late- filed claim has standing to participate in the Chapter 13 case.32 The “informal” proof of claim concept is a sometimes-successful route around a missed deadline to file a timely claim.33

[20]

It is apparently the practice in some jurisdictions to allow late-filed claims but to defer payment until after payment of all other claims under the plan.34 This practice has the advantage that the expectations of timely filed claim holders are not disrupted by the payment of untimely filed claims. Tacking late-filed claims to the end of the plan extends the plan and requires postconfirmation modification of the plan.35 Depending on the mathematics of the plan, other creditors or the trustee may have grounds to object. For example, any plan that will not pay timely filed unsecured claims in full probably cannot be modified over objection to begin paying untimely filed claims until after the 36 months required by the disposable income test in § 1325(b).36 Any such modification would have to deal with the fact that the late-filed claims being paid after other claims are not allowable over objection. Put another way, on what authority will the Chapter 13 trustee make disbursements to late-filed claim holders rather than object to their claims?

[21]

Determining when a proof of claim is filed for purposes of Bankruptcy Rule 3002 and § 502(b)(9) of the Code is usually simple: every bankruptcy court clerk’s office stamps the date and time of receipt of proofs of claim. As courts have moved to electronic case filing systems, the ECF docketing protocol includes embedding a date and time signature of some sort on every incoming proof of claim.

[22]

What happens when the creditor says it filed a proof of claim but there is no record of receipt by the clerk’s office? The issue appears in reported cases when creditors mail a proof of claim to the clerk’s office, but the claim does not appear on a claims register and there is no claim in the court’s file. In contrast to cases dealing with missing petitions,37 the “mailbox presumption” has been recognized for proofs of claim in Chapter 13 cases:

[T]he undisputed mailing of Creditors’ proof of claim establishes a rebuttable presumption that the Clerk’s office received it. The absence of docketing of the proof of claim does not rebut the presumption . . . and there is no other evidence that the proof of claim was not received. The mailing of the proof of claim occurred on June 25, 2001, well before the filing deadline of July 23, 2001. . . . [T]here is an assumption that the proof of claim was received, and therefore filed, prior to the claims deadline.38
[23]

When the claims bar date expires after dismissal and before reinstatement of a Chapter 13 case, creditors that did not file proofs of claim before dismissal may be at risk of running afoul of the bar date.39 Rule 3002(c) does not address this circumstance. In re Gulley40 illustrates the potential trap.

[24]

In Gulley, the Chapter 13 case was filed on July 6, 2007. The proof of claim bar date for nongovernmental claims was November 14, 2007. Before the bar date expired, on September 21, 2007, the Chapter 13 case was dismissed. The debtors moved to vacate dismissal and, after a hearing, the dismissal order was vacated on November 19, 2007—five days after the bar date for timely filing proofs of claim. The order vacating dismissal was silent with respect to the timely filing of proofs of claim. The debtor objected to a claim filed on January 18, 2008.

[25]

The bankruptcy court recognized that “Rule 9006(b)(3) appears to unambiguously preclude any equitable discretion on the part of a bankruptcy court to extend or toll [the Bankruptcy Rule 3002(c)] deadlines.”41 Uncomfortable with that outcome, the Gulley court found Fifth Circuit authority to “nullify” the original proof of claim filing deadline and to recalculate that deadline based on “disruption” of the case. Someday you may need this logic:

[T]his court holds that where a case is disrupted, such as through a stay or dismissal, and a proof of claim deadline runs prior to the reinstatement of the case, a court has the power to nullify the original proof of claim deadline and recalculate it. To hold otherwise offends notions of due process, but also invites mischief or the barrage of prophylactic filings. . . . This court can envision scenarios in which crafty debtors may allow their cases to be dismissed on technical grounds (like failure to file paperwork), allow the proof of claim deadline to pass, and then seek to reinstate the case and hold a creditor to the deadline that ran while the case was a non-case.42

 

1  See also § 275.2 [ In General: Filing is Required for Allowance ] § 132.2  In General: Filing is Required for Allowance.

 

2  11 U.S.C. § 502(b)(9), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005). See also §§ 276.1 [ Governmental Units ] § 132.3  Governmental Units, 508.1 [ New Timing Issues ] § 133.5  Tax Claim Exception after BAPCPA and 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

3  Fed. R. Bankr. P. 3002(c)(1) (as amended effective Dec. 1, 2008). Identical language appeared in the Interim Bankruptcy Rules applicable to cases filed on or after October 17, 2005. See also § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

4  196 B.R. 528 (Bankr. D. Ariz. 1996).

 

5  196 B.R. at 531.

 

6  See §§ 275.2 [ In General: Filing is Required for Allowance ] § 132.2  In General: Filing is Required for Allowance and 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

7  11 U.S.C. § 502(b)(9), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 213, 108 Stat. 4106 (1994).

 

8  196 B.R. at 530.

 

9  233 B.R. 815 (Bankr. C.D. Ill. 1999).

 

10  233 B.R. at 817.

 

11  Fidelity Fin. Servs., Inc. v. Montgomery County Dep’t of Human Resources (In re Davis), 237 B.R. 177, 184 (M.D. Ala. 1999) (Human Resources Department mailed a proof of claim on February 21, based on state statute which permits the Department to collect child support. Proof of claim was never filed by bankruptcy court. More than a year later, Department filed a second proof of claim, to which objections were raised. Bankruptcy Rule 3002(c)(2) permits “in the interest of justice and if it will not unduly delay the administration of the case, the court may extend the time for filing a proof of claim by an infant or incompetent person or the representative of either.” The Human Resources Department may be a representative for purposes of this rule, and unlike other parts of Bankruptcy Rule 3002, subpart (c)(2) does not require that an extension of time be granted before expiration of the original time period.), on remand, 243 B.R. 127 (Bankr. M.D. Ala. 1999).

 

12  243 B.R. 127 (Bankr. M.D. Ala. 1999). See also Vicenty v. Sandoval (In re Sandoval), 327 B.R. 493, 513–14 (B.A.P. 1st Cir. 2005) (Feeney, Boroff, Kornreich) (Incompetency can be a ground for exception under Bankruptcy Rule 3002(c)(2). “[T]he bankruptcy court found, but without taking evidence, that Davila Torres was not incompetent at ‘relevant times’ . . . . [T]he bankruptcy court should have taken evidence on the competency of Davila Torres during the relevant periods before reaching any conclusion under Rule 3002(c)(2). Rule 3002(c)(2) requires the bankruptcy court to consider three issues: (1) whether the creditor was incompetent, regardless of representation by an attorney; (2) whether an extension of time would be in the ‘interests of justice’; and (3) whether an extension would ‘unduly delay administration of the case.’”).

 

13  In re Durham, 329 B.R. 899 (Bankr. M.D. Ga. 2005) (Hershner) (Creditor asserted lien against automobile. Chapter 13 trustee avoided perfection of the lien as preferential. Creditor did not file a claim prior to order voiding lien and did not file a claim within 30 days after entry of the order. Although Rule 3002(c)(3) permits a creditor to assert a claim within 30 days after its lien is avoided, here creditor failed to satisfy any rule for allowance or for reconsideration of disallowance.).

 

14  Fed. R. Bankr. P. 9006(b)(3), (c)(2). See discussion beginning at § 132.1  1994 Code Amendments Changed the Rules.

 

15  See, e.g., Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1152 (9th Cir. 2000) (“Our precedent support the conclusion that a bankruptcy court lacks equitable discretion to enlarge the time to file proofs of claim.”); United Feeds, Inc. v. Greenig (In re Greenig), 152 F.3d 631 (7th Cir. 1998) (In a Chapter 12 case, answering the question reserved in In re Unroe, 937 F.2d 346 (7th Cir. 1991), a bankruptcy judge is without equitable powers to allow a late-filed proof of claim except as specified in Bankruptcy Rule 3002(c). Unsecured creditor’s motion to allow a late-filed proof of claim fits no exception in Rule 3002(c) and is not allowable on “equitable” grounds notwithstanding that confirmed plan named the creditor, stated that the claim was allowed and provided a fixed percentage.); Aboody v. United States (In re Aboody), 223 B.R. 36, 39–40 (B.A.P. 1st Cir. 1998) (“Excusable neglect” standard does not excuse SBA’s failure to file proof of claim within 180-day limitation; 133 days’ notice of the claims bar date is adequate notice to the government. “This Court adopts the majority view and concludes that the excusable neglect standard found in Fed.R.Bankr.P. 9006(b)(1) is not applicable in a Chapter 13 case, based on Fed.R.Bankr.P. 9006(b)(3) and Fed.R.Bankr.P. 3002(c)(1), to allow a governmental unit to late file a proof of claim. . . . The notice period for the filing of a proof of claim in a Chapter 13 case is not specified. . . . [T]he United States and SBA had actual notice of the claims bar deadline 133 days prior to its expiration, and we conclude that this was adequate notice.”); Street v. Lawson, 55 B.R. 763 (B.A.P. 9th Cir. 1985) (Bankruptcy Rule 3002(c) is an absolute bar to claims filed after 90 days after the § 341 meeting.); United States v. Hambright (In re Hambright), 216 B.R. 781, 782 (W.D. Mich. 1997) (Equitable tolling is not available to assist late-filed claim of IRS notwithstanding that debtor converted from Chapter 7 to Chapter 13 and bankruptcy court notice in Chapter 7 case instructed the IRS not to file a proof of claim. Debtor filed a Chapter 7 petition on September 14, 1995. The notice to the IRS and the clerk’s office instructed, “Do not file a proof of claim.” On December 14, 1995, the case was converted to Chapter 13, and on January 12, 1996, the bankruptcy court issued a new notice, which stated, “Claims which are not filed by April 30, 1996 (except 11 U.S.C. § 507(a)(8) claims) will not be allowed except as provided by law.” The IRS filed its proof of claim on May 2, 1996, 230 days after the order for relief based on the original Chapter 7 petition. The bankruptcy court disallowed the IRS claim as untimely. IRS argued that the 180-day period in § 502(b)(9) and in Bankruptcy Rule 3002(c) should be equitably tolled for the period during which the debtor was in the Chapter 7 case and the instruction not to file a proof of claim was in effect. The district court found that the government had more than 100 days’ notice of the bar date based on the January 12, 1996, notice of the conversion and thus was not entitled to equitable tolling.); In re Jones, No. 05-51134, 2008 WL 922321, at *1 (Bankr. W.D. Mo. Apr. 2, 2008) (unpublished) (Venters) (IRS proof of claim filed 20 months after bar date is untimely and disallowed; IRS “could have (and should have) filed a motion for an extension of the claims filing deadline or requesting [sic] leave to file the claim out of time.”); In re Watson, No. 06-11199-SSM, 2007 WL 3231529, at *3 (Bankr. E.D. Va. Oct. 30, 2007) (unpublished) (Mitchell) (Virginia Department of Taxation was not noticed of bankruptcy in time to file proof of claim, but court has no authority to extend claims bar date for unscheduled creditor. Considering equitable tolling under Young v. United States, 535 U.S. 43, 122 S. Ct. 1036, 152 L. Ed. 2d 79 (2002), it could be “argued that the Department was ‘tricked’ into allowing the filing deadline to pass when the debtor failed to amend his schedules and give the Department notice of the case after preparing the long-overdue returns and becoming aware (if he had not been before) that the Department was a creditor. Nevertheless, there are two reasons why equitable tolling is not appropriate. First, equitable tolling is not permitted when it is ‘inconsistent with the text’ of the statute or rule creating the limitation period. . . . Rule 3002(c) is quite explicit about the circumstances in which the time for filing claims can be extended, and Rule 9006(b)(3) prohibits extensions except under those circumstances. Second, in objecting to the Department’s claim, the chapter 13 trustee is not asserting a personal defense of the debtor but instead is acting as the statutory representative of the creditor body, whose distribution will be substantially diluted if the Department’s late claim is allowed.”); In re Vann, No. 05-38719-D-13L, 2007 WL 2746602 (Bankr. E.D. Cal. Sept. 17, 2007) (unpublished) (Bardwil) (Bankruptcy Rule 9006(b)(1) only extends time under circumstances in Bankruptcy Rule 3002(c); claim is untimely when State Board admitted it received notice of bankruptcy filing in time to file its proof of claim before bar date. Excusable neglect is not a basis for allowing late-filed claim, citing Dicker v. Dye (In re Edelman), 237 B.R. 146 (B.A.P. 9th Cir. 1999).); In re Laprade, No. 07-80001-WRS, 2007 WL 2301101, at *3 (Bankr. M.D. Ala. Aug. 9, 2007) (unpublished) (Sawyer) (Although proof of claim was only one day late, deadlines in Rule 3002 and § 502(b)(9) “are bright line rules, which this Court has no discretion to extend.” Claims bar in Rule 3002(c) may not be challenged under excusable neglect or harmless error standards.); In re Young, No. 04-53818, 2007 WL 703493 (Bankr. M.D.N.C. Mar. 2, 2007) (unpublished) (Waldrep) (Party claiming life estate in surrendered home had adequate notice of plan and of opportunity to file proof of claim; extension to permit filing unliquidated claim 474 days after bar date denied.); In re Harding, No. 01-14507, 2006 WL 5738080, at *1 (Bankr. D. Md. Jan. 31, 2006) (unpublished) (Teel) (Although creditor asserted lack of notice of bankruptcy filing in time to file timely claim, Bankruptcy Rules 9006(b)(2) and 3003(c) do not authorize extending time; lack of notice “goes to whether an eventual discharge in the case under 11 U.S.C. § 1328 will apply.”); In re Luther, No. BK 05-73529-CMS-13, 2006 WL 2385004 (Bankr. N.D. Ala. Aug. 3, 2006) (unpublished) (Stilson) (Excusable neglect standard for relief from bar date for filing proofs of claim is not available in Chapter 13 cases under Bankruptcy Rules 3002(c) and 9006(b)(3); creditor’s counsel knew three weeks before bar date that electronic filing of proof of claim was required but did nothing until two days after bar date—even if excusable neglect standard applied, this neglect is not excusable.); In re Hogan, 346 B.R. 715, 721 (Bankr. N.D. Tex. 2006) (Jernigan) (Bankruptcy court has no discretion to extend timeliness deadline for filing proofs of claim beyond Bankruptcy Rule 3002(c) with respect to a lienholder. “‘In a chapter 13 case, the court has no discretion to enlarge the time under F.R. Bankr. P. 3002(c) for a creditor’s filing a proof of claim other than in the case of a claim by a governmental unit, an infant, or an incompetent person.’”); In re Roubert, 336 B.R. 22 (Bankr. D.P.R. 2005) (Deasy) (Rule 9006(b)(3) limits discretion to extend Rule 3002(c) deadline beyond conditions stated. Rule 9006(b)(3) does not permit extensions on basis of excusable neglect.); In re Mickens, No. 04-1324, 2005 WL 375661, at *1 (Bankr. D.D.C. Feb. 14, 2005) (unpublished) (Teel) (Arrearage claim for mortgage is subject to same filing and timeliness requirements as any other secured claim; untimely filed arrearage claim is disallowed and will not receive distributions under confirmed plan. “[T]he court has no discretion to enlarge the time under F.R. Bankr. P. 3002(c) for a creditor’s filing a proof of claim other than in the case of a claim by a governmental unit, an infant, or an incompetent person.”); In re Barnes, No. 04-00426, 2004 WL 3135459, at *2 (Bankr. D.D.C. Dec. 10, 2004) (unpublished) (Teel) (Bankruptcy court is without authority to extend bar date for filing proofs of claim after conversion from Chapter 7 to Chapter 13 notwithstanding that the clerk’s notice to creditors regarding conversion of the case left blank the deadline for filing proofs of claim. “The structure of the Code and the Rules has led to the conclusion that the court generally cannot use its equitable powers to enlarge the bar date for filing claims in chapter 13. . . . Even when a creditor receives no notice of the bankruptcy case, bankruptcy courts have held that they are without power to enlarge the chapter 13 claims filing bar date. . . . This case is distinguishable from those rare cases in which the courts have found a power to enlarge the bar date . . . in the face of a rule prohibiting an enlargement of time, when the clerk’s office or the debtor has misled creditors as to the bar date. . . . This case turns upon a notice that did not affirmatively mislead: it simply left the deadline blank. No creditor could reasonably have been misled to think that there was no bar date.”); In re Zich, 291 B.R. 883, 885 (Bankr. M.D. Ga. 2003) (“The bar date for filing a proof of claim in a Chapter 13 case cannot be extended because of excusable neglect or through the court’s general equity powers. . . . Simply stated, in a Chapter 13 case, a claim is disallowed unless a proof of claim is timely filed.”); In re McLarry, 273 B.R. 753 (Bankr. S.D. Tex. 2002) (Motion to allow late-filed claim is denied because bankruptcy court is without discretion to extend deadline under Rule 3002.); In re Nyeste, 273 B.R. 148, 149 (Bankr. S.D. Ohio 2001) (“Because Bankruptcy Rule 3002(c) . . . controls the time requirements for filing claims in chapter 13 cases . . . the excusable neglect standard is . . . inapplicable to late-filed claims in chapter 13 cases.”); In re Miranda, 269 B.R. 737, 740 (Bankr. S.D. Tex. 2001) (“The Court has no authority under the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure to extend the deadline for filing a proof of claim in a chapter 13 case.”); In re Johnson, 262 B.R. 831, 844–45 (Bankr. D. Idaho 2001) (Notwithstanding counsel’s confession that the failure to timely file a proof of claim was “‘all my fault,’ . . . it is simply not permitted to equitably enlarge the time period for filing proofs of claim absent facts which place Creditors within one of the express exceptions of Rule 3002.”); In re Stewart, 247 B.R. 515, 519–20 (Bankr. M.D. Fla. 2000) (Excusable neglect standard in Pioneer Investment Service Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993), does not apply in a Chapter 13 case to the filing of proofs of claim under Bankruptcy Rule 3002(c). “Pioneer made clear that Rule 3002(c) was excluded from the operation of the excusable neglect standard. . . . A bankruptcy court does not have the discretion to allow late filed claims in a Chapter 13 case.”); In re Dennis, 230 B.R. 244, 247–49 (Bankr. D.N.J. 1999) (“[T]he code clearly requires a proof of claim to be filed for a claim to be allowed. No exception is made for secured creditors in section 502, thereby indicating that a secured creditor’s failure to file in accordance with section 501 will prohibit allowance of its claim. . . . If Congress intended tardily filed claims in chapter 13 to be allowed, they too would have been excepted from § 502(b)(9) as were tardily filed claims under § 726(a). . . . [A]ny claim tardily filed in a chapter 13 case to which an objection has been raised based on tardiness shall be disallowed.”); In re Brown, 223 B.R. 82, 85 (Bankr. M.D.N.C. 1997) (Deficiency claim is time barred because confirmation order gave secured claim holder 90 days to file deficiency claim after repossession, creditor repossessed and sold the collateral, but creditor missed the 90-day date set in the confirmation order by 22 days and failed to offer any explanation for the delay. Applying “excusable neglect” standard, although NationsBank acted in good faith with respect to repossession of the debtors’ boat and sale of the boat, there was a substantial danger of prejudice to other unsecured creditors from allowance of late-filed deficiency claim of $13,535, and NationsBank provided “very little information regarding why the claim was not filed. The Bank . . . was unable to provide any explanation as to why the Bank did not file its claim.”); In re Wrobel, 197 B.R. 289, 295 (Bankr. N.D. Ill. 1996) (The bankruptcy court is without power to waive or extend the 90-day deadline for filing claims in Rule 3002(c). Creditor was awarded attorneys’ fees for debtor’s contempt of state domestic relations court in an order entered one day after the deadline for filing claims. “[T]he Court is without power to waive the deadline for filing claims. . . . [T]he Court cannot extend the time in which [the attorney] may file her claim or to treat a late filed claim as if it were timely filed for purposes of allowance and treatment under the plan confirmed in the Current Chapter 13.”); In re Lang, 196 B.R. 528, 530–32 (Bankr. D. Ariz. 1996) (Addition of timeliness requirement to § 502(b) and its cross-reference to § 726(a) did not create a new exception to the 90-day bar date for the timely filing of proofs of claim in Chapter 13 cases. Excusable neglect under Bankruptcy Rule 9006(b) is not available to enlarge the 90-day deadline under Bankruptcy Rule 3002. Governmental unit is not entitled to late file a claim where it fails to meet the two requirements in Bankruptcy Rule 3002(c)(1); nor is the failure to file a proof of claim the sort of insubstantial matter that would permit correction under Bankruptcy Rule 9005 and Rule 61 of the Federal Rules of Civil Procedure. “[T]he issue is whether § 726(a)(1)–(3) applies to all chapters because it is referenced in § 502(b) or whether the exception contained in § 502(b) is limited to claims which independently fall within the explicit provisions of § 726(a). . . . Rule 3002(c)(6) includes a procedure whereby claims may be filed late and still participate in a distribution if a surplus remains after the allowed (timely) claims have been paid in full. . . . [S]uch a distribution scheme has no place in a Chapter 13 reorganization setting. . . . [T]he exceptions for late-filed claims set forth in § 726, and referenced in § 502, are only applicable to claims filed in a Chapter 7 case. . . . Rule 9006(b)(2) and (3) specify . . . enlargement is limited with respect to deadlines imposed by Rule 3002 . . . . [E]xcusable neglect is not an available ground for enlargement. . . . Pima County is clearly a subdivision of the state of Arizona and, therefore, [11 U.S.C. § 502(b)(9) and Fed. R. Bankr. P. 3002(c)(1)] provide[] an exception to the claims bar date if two requirements are met: (1) a motion is made before the expiration of the time for filing the claim; and (2) cause is shown. This is fatal to Pima County’s request, because its request for an extension was made in February, whereas the bar date for governmental claims expired in October. . . . [T]he allowance or disallowance of Pima County’s claim will have a significant impact on the rights of both the County and the debtor. If its claim is allowed, Pima County will have a right to participate in any distribution . . . . If the claim is not allowed, it will not participate. Thus, this court cannot conclude that the tardiness of the claim is harmless error.”); In re Wells, 125 B.R. 297 (Bankr. D. Colo. 1991) (No provision of Bankruptcy Rule 3002(c) allows the court to extend the 90-day period for the filing of proof of a secured claim.); In re Euston, 120 B.R. 228 (Bankr. M.D. Fla. 1990) (“Excusable neglect” is not available to extend the 90-day time period under Bankruptcy Rule 3002(c).); In re Scott, 119 B.R. 818 (Bankr. M.D. Ala. 1990); In re Tipton, 118 B.R. 12 (Bankr. D. Conn. 1990) (Court has no discretion to grant unscheduled creditor an extension of time in which to file a proof of claim. Rule prohibiting extensions of time beyond the 90 days provided in Rule 3002(c) does not deprive the unscheduled creditor of its constitutional rights because unscheduled creditor’s debt is not dischargeable.); In re Glow, 111 B.R. 209 (Bankr. N.D. Ind. 1990); In re Chirillo, 84 B.R. 120 (Bankr N.D. Ill. 1988) (Notwithstanding that the creditor was not listed and did not have timely notice of the debtor’s Chapter 13 filing, Bankruptcy Rule 3002(c) is an absolute bar to the filing of an unsecured claim after the 90 days expired.); In re Stern, 70 B.R. 472 (Bankr. E.D. Pa. 1987); In re Kennedy, 40 B.R. 558 (Bankr. N.D. Ala. 1984) (Rule 3002(c) is read with Rule 9006 to prohibit enlargement of the 90-day period for filing proofs of claim “whether there was ‘excusable neglect’ or not.”).

 

16  See also §§ 289.1 [ Untimely Filed Claims in Cases Filed before October 22, 1994: The Hausladen Phenomenon ] § 135.6  Untimely Filed Claims in Cases Filed before October 22, 1994: The Hausladen Phenomenon and 290.1 [ Untimely Filed Claims in Cases Filed after October 22, 1994 ] § 135.7  Untimely Filed Claims in Cases Filed after October 22, 1994.

 

17  11 U.S.C. § 502(a).

 

18  See, e.g., In re McLarry, 273 B.R. 753 (Bankr. S.D. Tex. 2002) (Although mortgage holder’s motion to allow late-filed claim is denied because the bankruptcy court is without discretion to extend deadline in Rule 3002, mortgage holder does not need permission to file untimely claim and that untimely claim is allowed until there is an objection.); In re Miranda, 269 B.R. 737, 740–41 (Bankr. S.D. Tex. 2001) (“[T]he Court has no authority to prohibit a tardy creditor from filing a proof of claim. And, under the statute, whether the claim was filed timely or late, it is allowed unless a party in interest (usually the trustee) objects to the claim. . . . [T]he Court cannot extend the deadline but Chase may file its claim without Court permission.”); In re Jensen, 232 B.R. 118 (Bankr. N.D. Ind. 1999) (After the 1994 amendment to § 502(b)(9), late-filed claim is allowed until an objection is filed, and creditor need not file a motion to allow the late-filed claim. In the absence of an objection, the late-filed claim is allowed and is paid along with other claims.).

 

19  See 11 U.S.C. § 502(b)(9), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 213, 108 Stat. 4106 (1994), and as further amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in § 132.2  In General: Filing is Required for Allowance, § 135.1  Timing, Procedure and Evidence Presumption and § 135.2  Allowance and Objections to Claims: Changes by BAPCPA.

 

20  11 U.S.C. § 502(b).

 

21  See Fed. R. Bankr. P. 3007(a): “An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or the debtor-in-possession and the trustee at least 30 days prior to the hearing.”

 

22  See § 290.1 [ Untimely Filed Claims in Cases Filed after October 22, 1994 ] § 135.7  Untimely Filed Claims in Cases Filed after October 22, 1994.

 

23  See 11 U.S.C. § 1302(b)(1), incorporating 11 U.S.C. § 704(5). See § 62.1 [ Review Claims, Object to Claims and File Proofs of Claim ] § 53.15  Review Claims, Object to Claims and File Proofs of Claim.

 

24  In re Unroe, 937 F.2d 346 (7th Cir. 1991). See also Avery v. United States, 134 B.R. 447 (Bankr. N.D. Ga. 1991) (“In the exercise of its equitable powers under 11 U.S.C. § 105(a),” allows the IRS to file a “late proof of claim.”).

 

25  Gardenhire v. IRS (In re Gardenhire), 220 B.R. 376, 384–85 (B.A.P. 9th Cir. 1998) (“Diligence for purposes of tolling must be of a higher level than that which would suffice for purposes of ‘excusable neglect’ . . . . The narrowly-circumscribed equitable doctrine that we invoke is suitable for application only in exceptional cases and cannot be applied in a wholesale manner that would function to eviscerate valid rules of procedure. . . . The requirement of diligence implies . . . that the beneficiary of tolling, who has by definition already been diligent, continue to be diligent and file a proof of claim within a reasonable time.”).

 

26  Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1152 (9th Cir. 2000) (“[A]pplication of equitable tolling to the 180-day period for governmental units to file proofs of claim pursuant to § 502(b)(9) of the Bankruptcy Code is inconsistent with the plain meaning of the Bankruptcy Code and Rules.”).

 

27  In re Cromer, 185 B.R. 1, 3–4 (Bankr. N.D.N.Y. 1994) (Second mortgage holder permitted “late filed” proof of claim as an unsecured creditor where plan provided that the debtors would reaffirm the second mortgage and make payments outside the plan, relief from the stay was granted after confirmation to first mortgage holder, and after foreclosure sale, second mortgage holder became unsecured. “Debtors’ Chapter 13 Plan provided that the first and second mortgages would be reaffirmed and paid outside the Plan. Clearly at the inception of the case, Beneficial, as an apparently fully secured creditor whose claim was being provided for by the Plan, had no requirement or reason to believe that it was required to file a proof of claim. . . . It was not until some seven or eight months after the bar date for filing claims had come and gone that [Beneficial] became aware that its status had changed. . . . In light of the fact that the Debtors are bound by the provisions of the plan to make payment to Beneficial and the fact that Beneficial, prior to the foreclosure sale, had no reason to object to said treatment, the Court concludes that the equities favor permitting Beneficial to file a late proof of claim. The fact that Beneficial is the only remaining creditor of these Debtors and payment of its claim at this juncture will prejudice no one serves as additional support for this conclusion.”).

 

28  In re Barnes, No. 07-31157, 2008 WL 2397618, at *2 (Bankr. D.N.D. June 10, 2008) (unpublished) (Hill) (Acknowledging split of authority, lack of due process notice entitles creditor to file late proof of claim. Creditor that was served through its former out-of-state attorney was not afforded basic due process and “should be entitled to file a late proof of claim notwithstanding the provisions of Bankruptcy Rules 3002(c) and 9006(b).”).

 

29  In re Adams, 76 B.R. 908 (Bankr. D. Conn. 1987). But see In re Sorge, 149 B.R. 197, 202 (Bankr. W.D. Okla. 1993) (After conversion from Chapter 11 to Chapter 13, no provision of Bankruptcy Rule 1019 or any other rule excuses a creditor’s obligation to file a new proof of claim. The IRS’s failure to file a new proof of claim after conversion from Chapter 11 to Chapter 13 results in discharge of prepetition tax claims at completion of payments under the Chapter 13 plan. Proofs of claim filed by the IRS in the superseded Chapter 11 case are of no effect in the subsequent Chapter 13 case. The debtor’s Chapter 11 case was filed in 1985. With respect to prepetition taxes for 1981, 1982 and 1983, “[s]ince the claims for 1981, 1982 and 1983 taxes were provided for in debtors’ amended plan, they were dischargeable under § 1328(a) after the completion by debtors of all payments under the plan. The fact that contemplated payments to IRS were not made, did not compel a different result. The IRS claims were not paid because they were not allowed. Any other result would create an anomalous result, wherein IRS would never be required to file proofs of claim in order to compel payment in full of its alleged priority claims. Had the Congress desired this result . . . it could have so provided.”).

 

30  In re Harris, 64 B.R. 717 (Bankr. D. Conn. 1986).

 

31  In re Moniz, No. 06-01485, 2007 WL 2225926 (Bankr. D. Idaho Aug. 2, 2007) (unpublished) (Pappas) (Court rejects stipulation between debtors and creditor that allowed creditor to file untimely proof of claim and that treated claim as timely. Applying Bankruptcy Rule 3002(c), court finds no authority to extend time for filing proof of claim when creditor had actual notice of bankruptcy filing in sufficient time to file timely claim.).

 

32  In re Larson, 245 B.R. 609 (Bankr. D. Minn. 2000).

 

33  See § 273.1 [ Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations ] § 131.4  Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations. See, e.g., In re Fries, No. 04-40523, 2005 WL 4705223 (Bankr. D. Idaho July 15, 2005) (unpublished) (Pappas) (Although late-filed claim cannot be allowed, objection to confirmation is a timely filed informal proof of claim that can be amended.).

 

34  See, e.g., In re Collins, 33 B.R. 203 (Bankr. E.D.N.C. 1983).

 

35  See discussion of procedure and standards for plan modification beginning at § 126.1  Standing, Timing and Procedure.

 

36  See § 255.1 [ Does Disposable Income Test Apply? ] § 126.3  Does Disposable Income Test Apply? for discussion of the disposable income test at modification under § 1329.

 

37  See § 38.1 [ When to File Petition ] § 37.2  When to File Petition.

 

38  In re Graham, 290 B.R. 424, 432–33 (Bankr. N.D. Ga. 2003).

 

39  See § 340.1 [ Reinstatement after Dismissal ] § 153.4  Reinstatement after Dismissal.

 

40  400 B.R. 529 (Bankr. N.D. Tex. 2009) (Jernigan).

 

41  400 B.R. at 535.

 

42  400 B.R. at 539.