§ 133.2     Unscheduled Creditors before BAPCPA
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 133.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

A recurring problem in Chapter 13 practice is the filing, allowance and treatment of claims not scheduled by the debtor. The issue sometimes arises as a (misnamed) motion to “add” an unscheduled creditor.1 Other times, the unlisted creditor learns of the Chapter 13 case and files a proof of claim, sometimes before but often after expiration of the 90-day or 180-day limitations in § 502(b)(9) and Bankruptcy Rule 3002(c).

[2]

A plain reading of the Code and Rules reveals no exception to the bar dates for claims not scheduled by the debtor.2 Put another way, an untimely proof of claim is not protected from disallowance by the lack of notice to the claim holder. This general rule was not changed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).3 Several courts have held that, upon objection, even an unlisted creditor that was without notice of the Chapter 13 case cannot overcome a timeliness objection to allowance after the deadlines in Bankruptcy Rule 3002(c).4

[3]

Some of these decisions recognize that disallowance of the untimely filed, unscheduled claim is a harsh rule; but the Bankruptcy Code protects the rights of creditors without notice in other ways—for example, by relief from the stay, by relief from the confirmation order and by exception to discharge.5 In cases filed on or after October 17, 2005, the limited exception to discharge in § 523(a)(3) for unscheduled creditors is applicable at completion of payments in a Chapter 13 case.6 The strict rule against allowance of unscheduled, untimely filed claims has also been applied to debtors: the debtor cannot force an unscheduled creditor to participate in a Chapter 13 plan by filing an untimely proof of claim on behalf of the unscheduled creditor.7

[4]

On various theories, other reported decisions hold that there is an exception to the time periods in Bankruptcy Rule 3002 when the claim holder is without notice of the Chapter 13 case in time to timely file a proof of claim. For example, one district court held that a governmental unit’s claim is not automatically time barred by § 502(b)(9) when the IRS received no notice of the Chapter 13 case until after the period for timely filing a proof of claim.8 When the debtor filed a postconfirmation motion to modify the plan to add an unlisted creditor, one bankruptcy court observed that “equity and constitutional considerations” required an exception to the usual rule for disallowance of untimely claims.9

[5]

Along the same lines, a district court held that failure of the clerk’s office to give the notice required by Bankruptcy Rule 2002 precluded use of Bankruptcy Rule 3002(c) to disallow a claim; but lack of diligence after learning of the case could establish the elements of laches to bar the claim.10 “Due process” has been cited to require that a creditor without timely notice or knowledge of the Chapter 13 case be permitted to file a claim “nunc pro tunc” and to share in distributions under the plan.11 “[E]quitable powers under 11 U.S.C. § 105(a)” were cited by one court to allow the IRS to file a late proof of claim when the IRS was scheduled as a creditor, but “for some reason not reflected in the record, the computer-generated notice to creditors did not include the IRS.”12 When the Chapter 13 debtor “added” a creditor13 after confirmation and after expiration of the 90-day period in Bankruptcy Rule 3002(c), one court granted a 30-day extension of time during which the added creditor could file a proof of claim.14

[6]

If there is a due process exception to the disallowance of untimely filed claims when the creditor is not properly scheduled, perhaps this “exception” has been too loosely applied in Chapter 13 cases. As explained by the bankruptcy court in In re Wright,15 due process arguments of this sort have long been measured against the standard stated more than half a century ago by the Supreme Court in Mullane v. Central Hanover Bank & Trust Co.16

[7]

In Wright, the credit union was scheduled with an address the debtor thought was correct but that the credit union later claimed was not correct. After the claims bar date, the credit union filed a motion for leave to file a late proof of claim. Applying the due process test from Mullane, the bankruptcy court found evidentiary and statutory reasons to refuse relief to the credit union:

[T]his Court has no authority under the Bankruptcy Code or the Bankruptcy Rules to grant Members Advantage leave to file a late claim . . . . This harsh rule of law obviously does not consider whether the debtor scheduled (or otherwise notified) the late-filing creditor or whether such creditor somehow obtained actual knowledge of the bankruptcy case. . . . Some federal-court decisions that are hesitant about the severe nature of Rule 3002 merely state or imply that the proof-of-claim process is limited by the Due Process Clause without creating an exception to Rule 3002 . . . . Members Advantage apparently did not obtain actual knowledge of the pendency of the case until its procedural rights had expired; therefore, it did not receive due process in the form of having constructive notice of the claims bar date. Still, Wright’s inclusion of Members Advantage on the creditors’ mailing matrix using what she apparently believed to be Members Advantage’s last known address may have in fact been “reasonably calculated” to inform it of the alteration of its contractual rights through this chapter 13 case. The Court has no evidentiary record before it from which it can make this finding, so the party with the burden—the movant Members Advantage—cannot prevail on this issue. . . . [T]he Due Process Clause does not provide an equitable exception to the otherwise strict terms of the chapter 13 claims bar date because the Bankruptcy Code, when construed as a whole, provides other forms of relief to creditors who do not have actual knowledge of a bankruptcy case in time to exercise procedural rights essential for protecting its [sic] claim.17
[8]

Wright is a refreshing look at the “due process exception” to disallowance of unscheduled claims in Chapter 13 cases. The failure to schedule is not by itself an answer to the question whether a creditor has been denied due process. Perhaps the address used by the debtor in Wright was the best available address and was “reasonably calculated” to inform the credit union of the Chapter 13 case notwithstanding that it wasn’t the perfect address for the credit union.18 That the Bankruptcy Code provides other remedies and procedural rights for the unscheduled creditor is often overlooked by courts too quick to find a constitutional exception to § 502(b)(9).

[9]

This “no notice” exception to Bankruptcy Rule 3002(c) has been strictly construed to apply only when the creditor proves lack of timely notice and knowledge and then only when the creditor is without contributory fault. When the creditor did not receive formal notice of the filing but had knowledge that a Chapter 13 case was pending, the 90-day bar applies.19 A creditor’s “bald allegation” that it received no notice is insufficient to overcome the presumption that arises when the creditor is scheduled and the clerk of the court files a sworn certificate of mailing to all scheduled creditors.20 Notice to a creditor can bar enlargement of or exception to the 90-day limit on the timely filing of proofs of claim by a guarantor or subrogee of the creditor.21

[10]

After the 1994 amendment to § 502(b)(9) it is clear that Congress intends timeliness to be a predicate to allowance of a proof of claim.22 The rule makers could avert much expense, litigation and general discomfort by refining the definition of timely in Bankruptcy Rule 3002(c) to include an exception for unscheduled creditors in Chapter 13 cases. An absolute bar of the sort now found in § 502(b)(9) is not realistic in Chapter 13 cases. Chapter 13 creditors are too numerous and Chapter 13 debtors are too unsophisticated to work within the rigidity of § 502(b)(9) and Bankruptcy Rule 3002(c).

[11]

One reported decision reveals a local rule that allows creditors to be “added” to the bankruptcy petition by amendment, and an added creditor then has 60 days in which to file a proof of claim.23 Given the strict time periods in Bankruptcy Rule 3002 and the limits on extension in Bankruptcy Rule 9006,24 a local rule allowing the late filing of an “added” creditor may be inconsistent with Bankruptcy Rule 3002.

[12]

When the debtor neglects to schedule a creditor, battle is sometimes joined whether the plan can be modified to accommodate the untimely filed creditor without unreasonably burdening the rights of creditors with timely filed proofs of claim.25 Depending on the terms of the modified plan, the unscheduled creditor may decide that it is not in its best interest to have the untimely claim allowed. Lack of notice in time for the creditor to file a timely claim may except the entire debt from discharge.26 Less than full payment through a modified plan may be less favorable treatment. One court allowed an unscheduled, late-filing creditor to withdraw its proof of claim rather than be forced into a disadvantageous plan.27


 

1  See § 260.1 [ To “Add” Prepetition Creditors ] § 127.3  To “Add” Prepetition Creditors. See also §§ 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen and 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA for discussion of the new notice of an amendment to add creditors, which was added to § 342(c) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

2  See §§ 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1  General Rules: No Enlargement or Exceptions, Except . . . and 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA.

 

3  Pub. L. No. 109-8, 119 Stat. 23 (2005). See § 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA.

 

4  See In re Houston, No. 07-00113, 2008 WL 104076, at *1 (Bankr. D.D.C. Jan. 4, 2008) (unpublished) (Teel) (Court lacks authority to extend deadline for filing proofs of claim, notwithstanding creditor’s lack of notice of bankruptcy. Unscheduled claim will not be subject to discharge because it is not provided for in plan. Creditor may “seek relief from the automatic stay, to the extent necessary to treat American Express fairly in comparison to other creditors who were given proper notice of the case, so that it may proceed with collection.”); In re Wright, 300 B.R. 453 (Bankr. N.D. Ill. 2003) (Bankruptcy court is without authority to permit late filing of proof of claim by even a poorly scheduled creditor; due process arguments are rejected because creditor did not show that scheduling with address the debtor thought was correct was not “reasonably calculated” to notify the creditor under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), and creditor has other possible remedies including stay relief, an exception to discharge, dismissal or conversion.); In re Namusyule, 300 B.R. 100 (Bankr. D.D.C. 2003) (Untimely claim filed by unscheduled creditor is disallowed and due process arguments are rejected because debtor amended schedules to include the creditor 60 days before the bar date and informed creditor’s attorney informally 89 days before the bar date.); In re Bennett, 278 B.R. 764, 766 (Bankr. M.D. Tenn. 2001) (Citing Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145 (9th Cir. 2000), and declining to follow IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), appeal dismissed for lack of subject matter jurisdiction, 248 F.3d 484 (6th Cir. 2001), there is no exception to the timeliness requirement in Bankruptcy Rule 3002 for an unscheduled creditor that files an untimely proof of claim in a Chapter 13 case. “Presumably when Congress failed to include in Chapter 13 a provision such as 11 U.S.C. § 726(a)(2)(C) to permit creditors who had no knowledge of the case or the bar date to file late claims, Congress had in mind the purpose of Chapter 13 and its framework—to allow debtors to commence repayment as soon as possible of some or all of their debts.”); In re Brogden, 274 B.R. 287, 293 (Bankr. M.D. Tenn. 2001) (Untimely filed claim of IRS is disallowed notwithstanding that debt was not scheduled and IRS lacked timely notice of Chapter 13 case. “Section 502(b)(9) as implemented by Bankruptcy Rules 3002(c) and 9006 plainly provides that an untimely claim is disallowed in a Chapter 13 case without regard to why the claim was untimely. . . . [T]here is no resort to equitable exceptions. ‘Fundamental fairness’ is not implicated because the Bankruptcy Code otherwise preserves the IRS’s collection rights against the debtor.”); In re Miranda, 269 B.R. 737, 740–42 (Bankr. S.D. Tex. 2001) (Unscheduled creditor’s motion to allow late-filing of proof of claim is denied without prejudice. “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. . . . On the other hand, the Court has no authority to prohibit a tardy creditor from filing a proof of claim. . . . Since late-filed claims are ‘allowed’ unless objection is made, if the plan is structured [to pay all allowed claims] it would constitute authority to pay Chase’s claim, albeit late-filed, unless and until someone objects.”); In re McQueen, 228 B.R. 408, 410–11 (Bankr. M.D. Tenn. 1998) (After 1994 amendments to § 502(b)(9), there are no statutory or equitable exceptions to the 90-day bar for the timely filing of a proof of claim in a Chapter 13 case. “Section 50[2](b)(9) provides no statutory exceptions to its mandate that claims must be filed ‘timely.’ The definition of ‘timely’ in Bankruptcy Rule 3002 is of no help to creditors that neglect to file within the deadlines or . . . that are disabled to do so. . . . [T]he 1994 amendment to § 502 seems not to have contemplated the hardship for debtors and creditors of an immutable disallowance rule in chapter 13 cases. Failure of debtor to properly notice a creditor of bankruptcy clearly raises constitutional concerns with respect to the effects of confirmation and discharge. However, as § 502(b)(9) is presently written, the court is without legal or equitable grounds to allow a late filed proof of claim in a chapter 13 case, even absent proper notice of the bar date for filing proofs of claim.”), rev’d sub nom. IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), appeal dismissed for lack of jurisdiction, 248 F.3d 484 (6th Cir. 2001); In re Herndon, 188 B.R. 562 (Bankr. E.D. Ky. 1995) (The IRS’s untimely filed proof of claim is not allowable notwithstanding that the IRS was not scheduled as a creditor and did not receive notice of the Chapter 13 case in time to timely file a proof of claim. IRS is bound by confirmation of the plan, but because the plan does not provide for the IRS, its claim will not be discharged.); 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 Chirillo, 84 B.R. 120 (Bankr. N.D. Ill. 1988) (Notwithstanding that creditor was not listed and did not have timely notice of 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 Scott, 119 B.R. 818 (Bankr. M.D. Ala. 1990).

 

5  See §§ 233.1 [ Notice and Due Process Considerations, Including Claims Allowance and Valuation ] § 121.2  Notice and Due Process Considerations, Including Claims Allowance and Valuation, 349.1 [ Claims Not Provided for by the Plan or Disallowed under § 502 ] § 158.5  Claims Not Provided for by the Plan or Disallowed under § 502, 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA and 551.1 [ Unscheduled Creditors: § 523(a)(3) ] § 159.4  Unscheduled Creditors: § 523(a)(3). See, e.g., In re Houston, No. 07-00113, 2008 WL 104076, at *1 (Bankr. D.D.C. Jan. 4, 2008) (unpublished) (Teel) (Unscheduled claim will not be subject to discharge because it is not provided for in plan. Creditor may “seek relief from the automatic stay, to the extent necessary to treat American Express fairly in comparison to other creditors who were given proper notice of the case, so that it may proceed with collection.”); In re Perry, No. 04-3-6231 SD, 2006 WL 4854558 (Bankr. D. Md. Apr. 20, 2006) (unpublished) (Schneider) (Although court cannot extend deadline for filing proofs of claim, unscheduled creditor would not be discharged because debt was not provided for in plan.); In re West, No. 04-33883-DK, 2005 WL 3132700 (Bankr. D. Md. Oct. 12, 2005) (unpublished) (Keir) (Although court had no authority to allow untimely claim of county for prepetition property taxes, since confirmed plan does not provide for payment, taxes will not be discharged and to extent secured, tax lien will survive bankruptcy.); In re Jensen, 333 B.R. 906 (Bankr. M.D. Fla. 2005) (Court had no authority to enlarge claims bar date, but debt to former wife is not provided for in confirmed plan and will not be discharged.); In re Wright, 300 B.R. 453, 462 (Bankr. N.D. Ill. 2003) (“[T]he Due Process Clause does not provide an equitable exception to the otherwise strict terms of the chapter 13 claims bar date because the Bankruptcy Code, when construed as a whole, provides other forms of relief to creditors who do not have actual knowledge of a bankruptcy case in time to exercise procedural rights essential for protecting its [sic] claim.”); In re Bennett, 278 B.R. 764, 766 (Bankr. M.D. Tenn. 2001) (Late-filed claim of unscheduled creditor is disallowed by Bankruptcy Code; “this Court is only disallowing the Medical Authority’s claim . . . . It is not here passing on such matters as whether . . . the debt to the Medical Authority is discharged.”); In re Brogden, 274 B.R. 287, 293 (Bankr. M.D. Tenn. 2001) (Untimely filed claim of IRS is disallowed notwithstanding that debt was not scheduled. “[T]here is no resort to equitable exceptions. ‘Fundamental fairness’ is not implicated because the Bankruptcy Code otherwise preserves the IRS’s collection rights against the debtor.”).

 

6  See 11 U.S.C. § 1328(a)(2), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in §§ 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA and 551.1 [ Unscheduled Creditors: § 523(a)(3) ] § 159.4  Unscheduled Creditors: § 523(a)(3). See, e.g., In re Brooks, 414 B.R. 65 (Bankr. E.D. Pa. 2009) (Fitzsimon) (Bankruptcy court lacks authority to extend bar date to allow law firm that represented debtor prepetition to file late claim, even though firm did not receive notice of bankruptcy in time to file timely claim; however, claim will not be subject to discharge under § 523(a)(3)(A), since debt was neither listed nor scheduled under § 521 to give claimant timely notice.).

 

7  In re Fugate, 286 B.R. 778, 779 (Bankr. N.D. Cal. 2002) (Debtors cannot file a claim on behalf of unscheduled creditor in an effort to bind the unscheduled creditor to 10% plan. “[T]here is no way, after the claims bar date has passed, to extend the date and force the creditor to participate in a plan to which it never had the chance to object.”).

 

8  IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), appeal dismissed for lack of jurisdiction, 248 F.3d 484 (6th Cir. 2001). Accord In re Martini, No. 03-41661 (DHS), 2006 WL 4452974, at *4 (Bankr. D.N.J. Apr. 3, 2006) (unpublished) (Steckroth) (Lack of notice in time to file proof of claim caused by debtor’s inadvertent failure to schedule creditor is sufficient basis to invoke due process and allow untimely claim. Citing IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), “where neither actual nor constructive notice is given to a creditor, the bar date prescribed by § 502(b)(9) . . . is not effective.”); Chapman v. Charles Schwab & Co. (In re Chapman), 265 B.R. 796, 809–11 (Bankr. N.D. Ill. 2001) (Because the debtor did not schedule the counterclaimant, the counterclaim cannot be dismissed on the ground that the counterclaimant failed to timely file an allowable proof of claim. Citing IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), “implicit in Section 502(b)(9) and Rule 3002(c) is the assumption that the creditor has received notice of the bankruptcy. . . . [T]he dictates of due process militate[ ] against a mechanical application of the time bar incorporated into § 502(b)(9) by Rule 3002(c). . . . [F]ailure to give adequate notice should not inure to the detriment of the creditor. . . . If Chapman were able to disallow the Smiths’ claim because he gave them no notice of the bankruptcy until after the bar date, he would have succeeded in depriving them of their property rights and the procedural due process protections contained within the Code. . . . [T]he Chapman motion to dismiss the Smiths’ counterclaim for untimeliness must be denied.”), on reconsideration, 269 B.R. 201 (Bankr. N.D. Ill. 2001).

 

9  In re Rodriguez, 225 B.R. 628, 631 (Bankr. S.D. Tex. 1998) (Arguably in dicta in the context of a debtors’ motion to modify a plan after confirmation to add an unlisted creditor, court observes that it is inappropriate to disallow the claim of a creditor that is disabled to file a timely proof of claim by the debtors’ failure to give notice or knowledge of the Chapter 13 case. Chapter 13 plan confirmed in February of 1995 provided 22% distribution to a class of unsecured creditors listed by name. The Solises were not listed in the schedules or in the plan. In April of 1998, the debtors moved to modify the confirmed plan to add the Solises’ claim. The Solises responded with a motion for relief from the stay. The court permitted the modification conditioned that the debtors satisfy all of the requirements in § 1325. In the course of explaining this outcome, the court stated, “Since [the Solises] did not have notice or knowledge of this case prior to the proof of claim deadline, their claim cannot be disallowed for failure to file a timely proof of claim.” The court explained this exception to the usual rule for disallowance of untimely claims under § 502 as based on “equity and constitutional considerations.”). Accord In re Smith, 217 B.R. 567, 568 (Bankr. E.D. Ark. 1998) (Notice to “Regional Adjustment Bureau, Inc.” was not notice to Student Loan Guaranty Foundation, thus SLGF did not have notice in time to timely file a proof of claim. “Since the creditor did not have proper or adequate notice of the bankruptcy case, due to the failure of the debtor to properly schedule that creditor, it is appropriate for the Court to allow the late-filed proof of claim.”). See also Vicenty v. Sandoval (In re Sandoval), 327 B.R. 493, 507–08 (B.A.P. 1st Cir. 2005) (“[A] debtor’s objection to a late claim cannot constitutionally be sustained and the creditor’s claim barred if the debtor’s failure to list, or inaccurate listing of, the creditor causes the creditor to miss the proof of claim deadline. . . . Strict application of the Rule 3002 deadline for filing claims assumes that the creditor has received this prescribed notice; late filed claims may be permitted in cases where notice to the creditor was materially deficient or misleading.”).

 

10  Morgan v. Barsky (In re Barsky), 85 B.R. 550 (C.D. Cal. 1988) (Although the creditor without notice is not subject to the 90-day time bar for filing proofs of claim in Bankruptcy Rule 3002(c), when the creditor had actual notice of the Chapter 13 case in time to file a claim and to assert objections to confirmation, the creditor’s unreasonable decision to make no further inquiry established the elements of laches and the untimely claim was disallowed.).

 

11  In re Barnett, 42 B.R. 254 (Bankr. S.D.N.Y. 1984). Accord In re Vaughn, 151 B.R. 87 (Bankr. W.D. Tex. 1993) (Where the IRS was not listed but the matrix was amended to include the IRS after the bar date for the filing of proofs of claim, “statutory due process” entitles the government to relief, notwithstanding Bankruptcy Rule 3002(c). The IRS is permitted to file a proof of claim after the bar date, and the claim will be deemed timely filed.); 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).”); In re Beckett, No. 02-41320(DHS), 2006 WL 4452979 (Bankr. D.N.J. Apr. 10, 2006) (unpublished) (Steckroth) (Proof of claim filed after bar date is deemed timely when debtor failed to schedule second mortgage and creditor lacked notice.).

 

12  Avery v. United States, 134 B.R. 447 (Bankr. N.D. Ga. 1991) (Confirmed plan called for full payment of IRS, but IRS did not know to file a timely proof of claim because, though scheduled and listed on the mailing matrix, no notice was mailed to the IRS. IRS is bound by confirmed plan and stayed during the life of the plan, but its claim will not be discharged. Allowing a late-filed claim notwithstanding Bankruptcy Rule 3002 permits the IRS to receive what the debtor intended to pay and avoids dealing with the IRS’s nondischargeable claim after completion of payments to other creditors.).

 

13  See § 260.1 [ To “Add” Prepetition Creditors ] § 127.3  To “Add” Prepetition Creditors.

 

14  In re Dodd, 46 B.R. 335 (Bankr. E.D. Va. 1985). See also In re Slack, 280 B.R. 604, 609 (Bankr. D.N.J. 2002) (“In this district, a creditor that is added to a bankruptcy petition by way of an amendment to the schedules is afforded sixty days from the date of the amendment to file a proof of claim. See Standard Order No. 6 of this Court.”). Contra In re Plummer, 378 B.R. 569 (Bankr. C.D. Ill. 2007) (Gorman) (Amendment of schedules to add prepetition creditors neither discharges omitted claims nor extends bar date for filing claims; under Rule 3002(c), court has no authority to extend bar date for omitted prepetition creditors.).

 

15  300 B.R. 453 (Bankr. N.D. Ill. 2003).

 

16  339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

 

17  300 B.R. at 459–62.

 

18  See §§ 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen and 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA for discussion of notice requirements added to § 342 by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

19  Morgan v. Barsky (In re Barsky), 85 B.R. 550 (C.D. Cal. 1988). Accord In re Namusyule, 300 B.R. 100, 101–04 (Bankr. D.D.C. 2003) (Untimely claim filed by unscheduled creditor is disallowed and due process arguments are rejected because debtor amended schedules to include the creditor 60 days before the bar date and informed creditor’s attorney informally 89 days before the bar date. “The creditor’s attorney . . . was notified of the bankruptcy on February 26, 2002 . . . . On March 25, 2002, the debtor amended his schedules to include the creditor, but listed the address of the creditor’s attorney. . . . The bar date for filing proofs of claim in this case was May 26, 2002 . . . . The creditor filed her proof of claim on May 30, 2002. Under 11 U.S.C. § 502(b)(9), the court must disallow the creditor’s claim as untimely filed. . . . [S]ome courts have sustained a creditor’s right to file a proof of claim on due process grounds, for lack of proper notice . . . . [T]he creditor had ample notice of these bankruptcy proceedings to file her proof of claim, such that both the requirements of due process and the requirements of Rule 2002 have been met. . . . Because counsel was representing the creditor in an action against the debtor in the Superior Court at the time he learned of the bankruptcy and because counsel has acted as bankruptcy counsel throughout these proceedings, the court holds that in this case, notice of the bar date mailed to the creditor’s attorney may fairly be imputed to the creditor herself and thus that notice was reasonably calculated to reach the creditor. . . . [W]here, as here, the creditor had formal notice of the bankruptcy more than 60 days before the bar date, and informal notice 89 days before the bar date, due process concerns have been more than satisfied.”).

 

20  In re Euston, 120 B.R. 228 (Bankr. M.D. Fla. 1990) (Creditor’s uncorroborated allegation of nonreceipt of notice of the bar date is not sufficient to rebut the presumption that arose because the creditor was properly listed on the schedule of creditors and the mailing matrix and the bankruptcy clerk certified the mailing of notice to the address listed. Although the presumption of receipt is rebuttable, creditor failed to overcome presumption, and late-filed claim is disallowed.); In re Farris, 43 B.R. 726 (Bankr. N.D. Ill. 1984).

 

21  In re Oakman, 80 B.R. 462 (Bankr. C.D. Ill. 1987) (Insurance company’s subrogation claim is time barred when debtor gave notice to insured.). But see In re Barnett, 42 B.R. 254 (Bankr. S.D.N.Y. 1984) (“Due process” demands that guarantor of debtor’s student loan who had neither notice nor knowledge in time to file a proof of claim be permitted to file a claim “nunc pro tunc” and to share in distributions.). See also Fed. R. Bankr. P. 3005.

 

22  See §§ 275.2 [ In General: Filing is Required for Allowance ] § 132.2  In General: Filing is Required for Allowance, 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.

 

23  See In re Slack, 280 B.R. 604, 608–09 (Bankr. D.N.J. 2002) (“There is a substantial and inconsistent body of case law addressing the issue of whether a creditor who has not received proper notice of a Chapter 13 bankruptcy case should be permitted to file a proof of claim beyond the statutory deadline. . . . This court need not delve into this murky area of the law. In this district, a creditor that is added to a bankruptcy petition by way of an amendment to the schedules is afforded sixty days from the date of the amendment to file a proof of claim. See Standard Order No. 6 of this Court.”).

 

24  See § 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1  General Rules: No Enlargement or Exceptions, Except . . ..

 

25  See, e.g., In re Bell, No. 04-75161, 2008 WL 80728 (Bankr. C.D. Ill. Jan. 7, 2008) (unpublished) (Gorman) (When confirmed plan made no provision for priority claims and IRS was not scheduled, late-filed claim is not allowable, notwithstanding trustee’s motion to amend plan to pay the IRS. Postconfirmation modification is not available to add omitted creditors.). See § 260.1 [ To “Add” Prepetition Creditors ] § 127.3  To “Add” Prepetition Creditors for discussion of “adding” prepetition creditors by modification after confirmation. See also §§ 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen and 510.1 [ Unscheduled Creditors ] § 133.3  Unscheduled Creditors after BAPCPA for discussion of new notice requirements with respect to “added” creditors enacted by BAPCPA.

 

26  See § 133.3  Unscheduled Creditors after BAPCPA§ 158.5  Claims Not Provided for by the Plan or Disallowed under § 502 and § 159.4  Unscheduled Creditors: § 523(a)(3).

 

27  See In re Cook, No. 04-32631, 2006 WL 2884389, at *1 (Bankr. M.D. Ala. Oct. 6, 2006) (unpublished) (Williams) (Unscheduled creditor can withdraw untimely proof of claim to avoid being bound by plan it had no opportunity to contest. Debtor failed to list Money Store as an unsecured creditor. Money Store filed an untimely proof of claim. Before Money Store filed its untimely claim, other allowed unsecured claims were paid in full from proceeds of lawsuit. Not allowing withdrawal of its claim would force Money Store to participate in plan on a basis different than full payment of other unsecured creditors. “The creditor may withdraw its claim as a matter of right under the circumstances of this case. See Fed. R. Bankr. Proc. 3006.”); In re Cook, No. 04-32631-DHW, 2006 WL 2338176, at *2 (Bankr. M.D. Ala. Aug. 9, 2006) (unpublished) (Williams) (Confirmed plan is modified on motion of trustee to pay late-filed unscheduled claim when creditor did not receive notice in time to file a timely claim. Unusual facts included that timely filed unsecured creditors were paid in full and funds remained in pot available for unsecured creditors. Unscheduled creditor had option to “withdraw its proof of claim and forego participation in the plan. The remedy for an omitted creditor who elects not to file an untimely claim is the nondischargeability of the debt.”).