Cite as: Keith M. Lundin, Lundin On Chapter 13, § 133.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
Amending a proof of claim often mimics an exception to or enlargement of the deadlines for filing timely proofs of claim.1 When a creditor files an amended claim after the time prescribed in § 502(b)(9) and in Bankruptcy Rule 3002(c), the new filing may be disallowed as untimely unless it partakes of the timeliness of the earlier filed proof of claim. The predicate for allowance of any amended claim is the existence of a timely filed claim that can be changed after the usual time bar.
Amending a timely filed proof of claim is nowhere specifically mentioned in the Code or Bankruptcy Rules. Amendment might be included in the notion of “reconsideration” of the allowance or disallowance of a claim under 11 U.S.C. § 502(j) and Bankruptcy Rule 3008.2
Although there is no mention of amended claims in § 501 of the Code, a proof of claim that amends a prior claim probably is “filed under section 501” and thus is “deemed allowed” by § 502(a) absent objection.3 Upon objection, allowance of an amended proof of claim is an equitable determination often approached using a two-part test: (1) was a timely similar claim asserted against the bankruptcy estate by a prior formal proof of claim or informal proof of claim; and (2) is it equitable to permit the amendment.4
Some reported decisions analyze the amendment of a proof of claim after the deadline for timely filing under Rule 15 of the Federal Rules of Civil Procedure. In In re Unroe,5 the U.S. Court of Appeals for the Seventh Circuit reasoned that a creditor can amend a claim if it meets the “relation back” tests in Rule 15(c). Another court expounded:
The IRS’s amended claim set up a contested matter. Thus, Rule 9014 allowed the bankruptcy court to apply Rule 7015 to the IRS’s amendment. Under Rule 7015, the bankruptcy court had the authority to permit the IRS’s amendment if it arose out of the same “conduct, transaction, or occurrence” set forth in the IRS’s original claim. . . . Additionally, the bankruptcy court had the equitable power to allow the amendment under 11 U.S.C. § 105(a). . . . Amendments to claims under [Fed. R. Civ. P. 15(c)] are liberally allowed . . . to “‘cure a defect in the claim as originally filed, to describe the claim with greater particularity or to plead a new theory of recovery on the facts set forth in the original claim.’”6
The use of Federal Rule of Civil Procedure 15 to measure amendments to proofs of claim is an imperfect fit.7 Rule 15 is not normally applicable to claims objections under Bankruptcy Rules 3007 and 9014. Although Bankruptcy Rule 9014 permits the bankruptcy court to incorporate other rules in a contested matter, Rule 15 deals with amended and supplemental pleadings. Pleading is a term of art under Rule 7 of the Federal Rules of Civil Procedure, and a proof of claim is not listed as a pleading.8
Before the 2005 amendments, Bankruptcy Rule 3004 contemplated the filing of a superseding proof of claim under certain circumstances.9 The filing of a superseding proof of claim was only available when an entity other than the creditor had first filed a timely proof of claim as a substitute or surrogate for the creditor. A superseding claim had to be timely filed within the limits of former Bankruptcy Rule 3002(c) or it would not supersede an earlier claim filed by the debtor or trustee.10
Typically, amendment of a timely filed proof of claim will be sought by a creditor to change or correct the proof of claim previously filed by the creditor. With perhaps two reported exceptions, the courts, under the pre-2005 Rules, had resisted efforts by creditors to blur the distinction between an untimely claim offered as an amendment to that creditor’s timely filed proof of claim and an untimely effort by a creditor to supersede a claim filed by the debtor or the trustee.11
Detailed elsewhere,12 Bankruptcy Rule 3004 was amended, effective December 1, 2005, to conform to Code § 501(c): “[if] a creditor does not timely file a proof of such creditor’s claim, the debtor or the trustee may file a proof of such claim.”13 Rule 3004 now provides:
If a creditor does not timely file a proof of claim under Rule 3002(c) or 3003(c), the debtor or trustee may file a proof of the claim within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c) or 3003(c), whichever is applicable. The clerk shall forthwith give notice of the filing to the creditor, the debtor and the trustee.14
This amended rule no longer refers to the filing of a proof of claim that would supersede the claim filed on behalf of a creditor. The Advisory Committee Note to the 2005 amendment points out that the amended rule does not permit the debtor or trustee to file a proof of claim until the creditor’s time has expired. Since the debtor or trustee must wait for that expiration, “the rule no longer permits the creditor to file a proof of claim that will supersede the claim filed by the debtor or trustee.”15
The creditor that lets its time to file a timely claim expire faces the reality that any proof of claim it files in response to the debtor’s or trustee’s proof of claim will be untimely. The Advisory Committee Note goes on to state that the amended rule “leaves to the courts the issue of whether to permit subsequent amendment of such proof of claim [filed by the debtor or trustee].”16 This comment suggests the possibility that a creditor can file an untimely proof of claim that would be an allowable amendment to a claim filed on behalf of the creditor.
The test for allowance of an untimely claim filed by a creditor as an amendment of a claim filed on the creditor’s behalf is sometimes stated in terms of promptness and prejudice: how quickly did the creditor act to file an amended proof of claim and what prejudice will result from allowance?17 When a tax claim filed by the debtor on behalf of the IRS intentionally stated an incorrect amount and misrepresented the nature of the taxes, the U.S. Court of Appeals for the Fifth Circuit not unreasonably concluded that the IRS could amend the incorrect claim notwithstanding that the amendment was otherwise untimely.18
The idea of amending a proof of claim is not fundamentally offensive. Creditors often make mistakes in the filing of proofs of claim, and adjustments are required for many reasons—to reflect an error in calculations, to reflect negotiation with the debtor, to adjust for payment by third parties or the like. With respect to debtors, a voluntary petition, list, schedule or statement “may be amended by the debtor as a matter of course at any time before the case is closed,” pursuant to Bankruptcy Rule 1009(a).19 There is no analogue to Bankruptcy Rule 1009 for proofs of claim filed by creditors.
Official Bankruptcy Form 10,20 as amended December 1, 2008, contains a box for the creditor to check whether the claim “amends a previously filed claim,” with lines for “Court Claim Number (if known)” and the “filed date” of the prior claim. Another box should be checked “if you are aware that anyone else has filed a proof of claim relating to your claim. Attach copy of statement giving particulars.” A third box is checked if the filer of the proof of claim is “the debtor or trustee in this case.”21
The drafters of the official forms clearly contemplate the filing of amended claims and intend that Official Bankruptcy Form 10 be used for that purpose. The boxes on Form 10 may be a welcomed roadmap for creditors that need to amend a claim, but the designation of a specific process can become a roadblock if the creditor doesn’t precisely follow the rules. For example, when a creditor failed to check the box stating that it was amending a previously filed claim, one court held that the original claim was allowed but the attempted amendment was not—the amended proof of claim not properly designated was characterized as an improper duplicate claim.22 One may wonder how it could be a duplicate, since it attempted to change something in the original claim, but this holding is a warning to comply with the Official Form requirements with respect to amended claims.
There is no deadline in the Rules or Code after which amendment of a claim is prohibited. Theoretically, a timely filed proof of claim can be amended at any time while the case is pending, at least until payments are completed under the plan.23
One court has held that filing an amended claim is not necessarily sufficient to accomplish allowance of the amended claim. In In re Carr,24 the IRS filed an amended claim 15 months after the Chapter 13 trustee’s motion to allow claims. The confirmed plan provided for payment to the IRS in the amount stated in its original proof of claim. No motion for reconsideration of the order allowing claims was filed under § 502(j) or Bankruptcy Rule 3008.25 The bankruptcy court held that the amended proof of claim was not automatically allowed and did not automatically increase the amount that the debtor was required to pay to the IRS: “[I]f an amended proof of claim is filed after confirmation of a Chapter 13 plan and after the court has entered an order allowing claims, the amended proof of claim does not become an allowed claim unless the moving party makes a motion to reconsider claims under Bankruptcy Rule 3008, or takes some other appropriate action.”26 The court held that the debtor was entitled to discharge the difference between the original and the amended claims upon completion of payments under the plan.
The possibility of amendment makes it all the more important that creditors file a timely proof of claim even if precise calculation of the amount of the claim may take further investigation or even litigation. Without committing a fraud or filing a false claim, it is appropriate for a creditor to file a proof of claim containing the creditor’s best calculation of the amount of the claim and to then amend the claim when more precise calculation becomes possible.
Amendment of claims is particularly important when the timely filed proof is an informal claim that must be amended before distributions under the plan are possible. As discussed above,27 letters, motions, pleadings or other documents sometimes contain sufficient information to satisfy the requirement of a timely filing in substantial conformity to Official Bankruptcy Form 10. An informal proof of claim will typically lack precision, and only by amendment can defects in the informal claim be corrected. One reported decision permitted amendment of an informal proof of claim after the 90-day limit in Bankruptcy Rule 3002(c) under these circumstances:
[A]pplication of this rule calls for allowance of [the creditor’s] amending proof of claim so long as there is no fraud on [the creditor’s] part and such allowance would not prejudice other parties. . . . [T]hat other creditors in this case will receive a smaller distribution than they would receive if [the creditor’s] claim were not allowed does not establish the kind of “prejudice” which would preclude amendment. . . . [T]he type of prejudice which would bar a creditor from amending its proof of claim typically involves an irrevocable change in position or some other detrimental reliance on the status quo.28
The reported decisions are not altogether clear about the standards for when an untimely filed amendment relates back to the earlier filing of a timely proof of claim or informal proof of claim. One reported decision limits amendment “to correct defects of form or to supply greater particularity in the allegations of fact from which the claim arises, or to make a formal proof of claim based upon facts which, in the statutory period, had already been brought to the notice of the trustee by some informal writing or some pleading in the bankruptcy proceedings.”29 It has been said that an amended proof of claim is allowable without regard to the bar date if “it relates to and arises out of the same transaction as the original claim. As such, its date of filing relates back to the date of the filing of the original claim and, accordingly, it must be deemed to be timely filed.”30 The test has been stated that “the amended claim must bear a relationship to the original claim and must simply be a correction or supplementation of that claim supported by the same operative facts that gave rise to the original claim.”31 One common example of appropriate use of an amended claim in a Chapter 13 case might be the claim for a deficiency when collateral is repossessed and disposed of after confirmation.32
A warning here: partially secured creditors should not assume that all courts will permit amendment of a timely filed secured proof of claim after the bar date to assert an unsecured deficiency claim. Several recent decisions have exposed a split of authority with respect to allowance of the untimely deficiency amendment.33 Some courts have permitted the allowance of an (untimely) amended proof of claim for a deficiency, for example, after the surrender of collateral.34 Other courts have denied allowance of an amended proof of claim for a deficiency—especially when the creditor filed a “fully secured” original proof of claim and did not reserve the right to later file a deficiency claim.35
Although not anchored in any statutory provision, the idea that a partially secured creditor can “reserve” the right to amend its claim for a deficiency finds some support in Official Form 10. Part 4 of the Official Form has a box to complete when the claim is secured, and the Form instructs all secured creditors to provide the amounts of both the secured and unsecured portions of the claim.36 Secured creditors should complete this box very carefully. Asserting “fully secured” without factual foundation is an invitation to trouble—not the least of which is the possibility of disallowance of any amendment to assert an unsecured deficiency. Partially secured creditors that complete the box with a best estimate of the unsecured amount are best positioned to accomplish allowance of a later amendment that fixes the actual deficiency amount after liquidation of the collateral.37
Some courts test whether to allow an untimely deficiency claim as an amendment to a timely secured claim by measuring prejudice to the debtor and other creditors. For example, when the creditor delayed liquidating its collateral or did not promptly file its deficiency claim, the impact of delay on distributions by the trustee has been outcome determinative of disallowance.38
The allowance of an untimely filed unsecured deficiency claim as an amendment to a timely filed secured claim is impacted by the strange “hanging sentence” added to the end of § 1325(a) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).39 Detailed elsewhere,40 in Chapter 13 cases filed on or after October 17, 2005, certain kinds of partially secured claims—in particular, car loans secured by purchase money security interests within 910 days of the petition—must be treated at confirmation as if the claims are fully secured, without regard to the value of the collateral.41 Some car lenders, anticipating fully secured treatment through the plan, have fallen into the (misguided) routine of filing “fully secured” proofs of claim without regard to the value of collateral. This practice risks litigation over “false claims”42 and will rebound to the creditor’s discomfort when an unsecured deficiency arises after the claims bar date.
The line between a new (untimely) claim and amendment of a timely filed claim is not always clear. For example, in In re Taylor,43 a mortgage holder filed a timely proof of claim stating “unsecured nonpriority claim.” Nearly five years later, at the end of the Chapter 13 plan, the mortgage holder realized its mistake and filed an “amended” claim stating that it was secured by real property. The bankruptcy court rejected the mortgage holder’s effort to characterize the late filing as an amendment:
If Empire wishes the Court to treat this claim as an amendment to its prior Claim . . . Empire must show that the amendment is not a new claim. Claims may be freely amended unless they raise an entirely different claim. A claim cannot be amended after the claim filing bar date if the claim is a new claim being offered in the guise of an amendment to a previously filed claim. . . . Since Empire is now claiming it is a secured creditor, that makes its claim an entirely new one. Late amendments which raise new issues are only allowed if the creditor proves that granting the amendment is fair and imposes no undue hardship on a party. . . . [T]he amendment, if allowed would obviously be very prejudicial to the debtors. They are within three months of completing their plan and discharging Empire’s debt. They paid the debt as requested by Empire. The fault for the problem lies squarely with Empire. . . . [A] secured creditor can waive its right to claim it is secured if it files an unsecured claim.44
An amended claim is not a backdoor objection to confirmation. A recurring fact pattern is the confirmed plan that does not provide interest and the creditor that amends its claim to add the omitted interest. In In re Abrams,45 the confirmed plan failed to provide postconfirmation interest to a secured claim holder. The creditor did not object to confirmation and filed a timely proof of claim that (appropriately) did not include postpetition interest. Seven months after confirmation, the creditor realized its problem and filed an amended claim that added postpetition interest. This didn’t work:
The plan is res judicata as to the treatment of a creditor’s claim. When Nuvell did not object to its treatment under the plan as to interest when that treatment was clear, it cannot now seek an amendment. Over seven months after confirmation is just too late. The amendment to the claim is Nuvell’s way of seeking what it failed by its own action to secure at plan confirmation.46
Although not specifically mentioned in Rule 15 of the Federal Rules of Civil Procedure, prejudice to the debtor or other creditors is a limitation often applied to determine the allowance of an amended claim in a Chapter 13 case. For example, in In re Turner,47 Nissan Motor Acceptance Corporation filed a timely proof of claim for $1,404.49. It was undisputed that this amount was a mistake—the correct amount was $14,404.49. Two years after confirmation, Nissan filed an amended proof of claim with the correct amount. Unfortunately for Nissan, the 100 percent plan was calculated based on the timely filed claim. If Nissan’s timely claim had been correct, unsecured claim holders would have received only a nominal distribution under the plan. The bankruptcy court disallowed Nissan’s amended claim because “Debtors would be unfairly prejudiced by the allowance of NMAC’s amended claim.”48
Adjustments and additions to timely filed tax claims are frequent in Chapter 13 cases. Especially before the 1994 amendments to § 502(b)(9), taxing authorities often could not complete the calculations to file accurate proofs of claim within the 90-day timeliness limit fixed by former Bankruptcy Rule 3002(c).
In Chapter 13 cases filed after October 22, 1994, governmental units have 180 days after the petition (with possible extensions in cases filed on or after October 17, 2005),49 in which to file a timely proof of claim for taxes.50 The 180-day period is approximately 40 days longer than the period available in pre-1994 cases.51 The 40-day difference under § 502(b)(9) may enhance the ability of taxing authorities to file timely proofs of claim in Chapter 13 cases.52
The routine amendment of proofs of claims by taxing authorities is likely to abate in cases filed after October 17, 2005. Detailed elsewhere,53 BAPCPA added many new tax return filing requirements in Chapter 13 cases and extended the deadline for the timely filing of proofs of claim by taxing authorities when the debtor files required tax returns after the petition. Timely compliance with the new tax return filing requirements should enable taxing authorities to file more accurate proofs of claim and fewer amended claims.
It has been common in some districts for taxing authorities to file “preliminary proofs of claim” that are later amended to reflect completion of examination of the debtor’s tax liabilities. If the taxing authority filed a timely proof of claim and if the subsequent amendment relates to the same kind of tax and the same time period as the original claim, the amendment is generally allowed; when the adjustment or addition concerns a different entity or a different kind of tax—for example, withholding taxes unpaid by the debtor’s corporation offered as an amendment to a claim for the debtor’s personal income taxes—the amendment generally is not allowed.54
The U.S. Court of Appeals for the Seventh Circuit went beyond the Bankruptcy Rules to find “broad equitable powers” to permit the IRS to amend a timely claim to assert taxes for a different tax year, notwithstanding that the amendment did not satisfy Bankruptcy Rule 3002(c) and was not rescued by the relation-back provisions of Bankruptcy Rule 7015.55 Nothing in the Code or Bankruptcy Rules prohibits the IRS from changing the amount of its claim by amendment in successive Chapter 13 cases filed by the same taxpayer.56
One reported bankruptcy court decision considers the evidentiary effect of an amended proof of claim. A timely filed proof of claim has the special evidentiary presumption in Bankruptcy Rule 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.”57 In In re Coates,58 20 minutes before the hearing on an objection to Litton Loan’s claim, counsel for Litton Loan filed an amended proof of claim. Litton presented no evidence at the hearing. The bankruptcy court was not impressed:
LITTON LOAN’S attorney did not articulate what he thought the effect was of filing an amended proof of claim twenty (20) minutes prior to a scheduled evidentiary hearing. Because he failed to introduce any evidence at the hearing, the Court can only assume that the attorney thought that the amended claim would somehow relieve him of the need to present evidence. If so, he was mistaken. . . . An amended proof of claim may not substitute for evidence presented and admitted at trial. Once an issue is joined and set down for an evidentiary hearing, neither party can unilaterally avoid the necessity of presenting evidence by filing a document in lieu thereof.59
An emerging issue in recent decisions is the effect of an amended proof of claim filed after objection to the original claim and before the court rules on the objection. It has been said that such a responsive amendment is at best “unnecessary”60 and at worst a sanctionable tactic used by unscrupulous creditors to disguise the practice of filing deficient proofs of claims with hope that no one will notice, then filing amendments when someone does.
Applying Rule 15 of the Federal Rules of Civil Procedure, the court in In re Galbreath61 rejected an “eleventh hour amendment” in response to a claim objection when the creditor sought permission of neither the debtor nor the court before filing the amendment. In later opinions, the same court criticized the practice by some creditors of filing “woefully deficient proofs of claim with utter disregard for the requirements clearly set forth in Bankruptcy Rule 3001 requiring creditors to attach documentation in support of their claims,”62 and then filing amendments after objections but before court action:
It is clear to this Court that [creditor and its counsel] are content to rest on their grossly deficient proofs of claim in the hope that debtors will overlook their violation of Bankruptcy Rule 3001. Apparently, this approach has proven cost effective thus far. However, because the Debtor in this case caught on to [creditor’s] ruse and because this Court has already taken [creditor] to task for a substantially similar failure in a prior case, [creditor] will not only suffer disallowance of its claims, but [its attorney,] as an officer of this Court, will be made to answer for his flagrant disregard for Bankruptcy Rule 3001[.]63
1 See § 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1 General Rules: No Enlargement or Exceptions, Except . . ..
2 See § 287.3 [ Reconsideration of Claims ] § 135.4 Reconsideration of Claims.
3 See § 287.1 [ Timing, Procedure and Evidence Presumption ] § 135.1 Timing, Procedure and Evidence Presumption.
4 See, e.g., In re Coover, No. 06-40176, 2006 WL 4491439, at *7 (Bankr. D. Kan. Sept. 28, 2006) (unpublished) (Karlin) (Applying two-part test for allowance of amended claim, five factors bear on equitable determination.).
5 937 F.2d 346 (7th Cir. 1991).
6 United States v. Johnston, 267 B.R. 717, 721–22 (N.D. Tex. 2001). See In re Workman, 373 B.R. 460 (Bankr. D.S.C. July 31, 2007) (Waites) (Applying Rule 15 of the Federal Rules of Civil Procedure to assess delay and prejudice, mortgage creditor that incorrectly stated arrearage amount in its original proof of claim cannot amend its claim to assert additional arrearages and other charges when creditor participated in confirmation process and amended claim would defeat confirmed plan because debtor would be unable to cure increased arrearage amount.).
7 The Rule 15 analogy has been applied in cases outside the Chapter 13 context. See, e.g., Liddle v. Drexel Burnham Lambert Group, Inc. (In re Drexel Burnham Lambert Group, Inc.), 159 B.R. 420 (S.D.N.Y. Oct. 19, 1993) (Pollack).
8 See Fed. R. Civ. P. 7.
9 See Fed. R. Bankr. P. 3004 (“A proof of claim filed by a creditor pursuant to Rule 3002 or Rule 3003(c) shall supersede the proof filed by the debtor or trustee.”) (pre-2005 version) (emphasis added); Fed. R. Bankr. P. 3005(a) (“A proof of claim filed by a creditor pursuant to Rule 3002 or Rule 3003(c) shall supersede the proof of claim filed pursuant to the first sentence of this subdivision.”) (pre-2005 version) (emphasis added).
10 See Fed. R. Bankr. P. 3004 (pre-2005 version), discussed in § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1 Timing, Form, Superseding and Amended Claims before 2005.
11 See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1 Timing, Form, Superseding and Amended Claims before 2005 and 286.1 [ Strategic Considerations: When to File Claims for Creditors ] § 134.3 Strategic Considerations: When to File Claims for Creditors. See, e.g., In re Jones, 238 B.R. 338, 342–43 (Bankr. W.D. Mich. 1999) (Untimely proof of claim filed by IRS cannot amend proof of claim filed by the debtors on behalf of the IRS. Deadline for governmental units to file timely claims was November 9, 1998. IRS had notice but did not timely file any claim. Trustee warned debtors that he would not pay the IRS through the plan without a proof of claim. On December 4, 1998, the debtors filed a Bankruptcy Rule 3004 claim on behalf of the IRS, but for only the secured portion of the tax debt. On December 7, 1998, the IRS filed untimely proofs of claim substantially increasing its secured claim and adding a priority and general unsecured claims. The debtors objected. “As for the argument that the IRS should be allowed to amend the claim filed by the Debtors, the court finds that there may have been a right of amendment had the IRS timely filed an ‘original claim’, but this did not happen. . . . ‘[Amendments are permitted] to correct defects of form, or to supply greater particularity in the allegations of fact from which the claim arises, or to make a formal proof of claim based upon facts which, within the statutory period, has [sic] already been brought to the notice of the trustee by some informal writing or some pleading in the bankruptcy proceedings. It is quite another matter to use an amendment as a device for filing after the statutory period a claim based upon a cause of action of which no notice whatever had been given the trustee by anything previously filed.’”); United States v. Vlavianos, 71 B.R. 789 (Bankr. W.D. Va. 1986) (IRS is not permitted to amend proof of claim filed by the debtor when amendment is offered more than a month after all payments have been completed and nearly 29 months after the original proof of claim was filed on behalf of the IRS. Unpaid portion of the tax claim is subject to discharge.). But see In re Hill, 286 B.R. 612 (Bankr. E.D. Pa. 2002) (Applying United States v. Kolstad (In re Kolstad), 928 F.2d 171 (5th Cir. 1991), reh’g en banc denied, 936 F.2d 571 (5th Cir.), cert. denied, 502 U.S. 958, 112 S. Ct. 419, 116 L. Ed. 2d 439 (1991), mortgage holder’s untimely proof of claim cannot supersede timely claim filed by the debtor under Bankruptcy Rule 3004, but creditor’s claim can be an amendment to the claim filed by the debtor; amended claim is disallowed because the creditor did not designate its claim as an amended claim and did not act diligently to assert an amended claim in any other way.); In re Kelley, 259 B.R. 580, 585 (Bankr. E.D. Tex. 2001) (Citing United States v. Kolstad (In re Kolstad), 928 F.2d 171 (5th Cir.), reh’g en banc denied, 936 F.2d 571 (5th Cir.), cert. denied, 502 U.S. 958, 112 S. Ct. 419, 116 L. Ed. 2d 439 (1991), when mortgage holder’s late-filed proof of claim cannot “supersede” the claim filed by the debtor under Bankruptcy Rule 3004, court arguably has equitable power to construe the late claim as “amending” rather than superseding the claim filed by the debtors. “However, Regions has failed to establish any facts which would warrant the exercise of this Court’s equitable power in such a manner.”).
13 11 U.S.C. § 501(c), discussed in § 134.1 Timing, Form, Superseding and Amended Claims before 2005, § 134.2 Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004 and § 134.3 Strategic Considerations: When to File Claims for Creditors.
14 Fed. R. Bankr. P. 3004, as amended Dec. 1, 2005.
15 Fed. R. Bankr. P. 3004 advisory committee note.
16 Fed. R. Bankr. P. 3004 advisory committee note.
17 See In re Sacko, 394 B.R. 90, 97 (Bankr. E.D. Pa. Sept. 17, 2008) (Frank) (Creditor “acted promptly to assert its rights as a secured claimant. The Debtor has suffered no prejudice due to [creditor’s] failure to file its claim during the initial period provided by Rule 3002(c). I will, therefore, allow [creditor] to amend the claim the Debtor filed on its behalf.”).
18 Thomas v. United States (In re Thomas), 223 Fed. Appx. 310 (5th Cir. Mar. 1, 2007) (Smith, Barksdale, Dennis).
19 Fed. R. Bankr. P. 1009(a) (emphasis added). See § 41.3 [ Preconfirmation Amendment of Petition, Statements, Schedules and Lists ] § 41.2 Preconfirmation Amendment of Petition, Statements, Schedules and Lists.
20 See also § 507.1 [ New Official Form 10 ] § 131.2 Official Form 410 after BAPCPA.
21 Official Bankruptcy Form 10, discussed in §§ 272.1 [ Official Bankruptcy Form 10 and Variations ] § 131.1 Official Bankruptcy Form 410 and Variations and 507.1 [ New Official Form 10 ] § 131.2 Official Form 410 after BAPCPA.
22 In re Hart, No. 07-00115, 2008 WL 4998995 (Bankr. D.D.C. Oct. 15, 2008) (unpublished) (Teel).
23 See § 343.1 [ Timing and Procedure for Discharge and Objecting to Discharge ] § 156.1 Timing and Procedure for Discharge and Objecting to Discharge.
24 134 B.R. 370 (Bankr. D. Neb. 1991).
25 Bankruptcy Rule 3008 provides: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” See § 287.3 [ Reconsideration of Claims ] § 135.4 Reconsideration of Claims.
26 134 B.R. at 372.
27 See § 273.1 [ Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations ] § 131.4 Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations.
28 In re Dietz, 136 B.R. 459, 468–69 (Bankr. E.D. Mich. 1992). Accord In re Jones, 238 B.R. 338, 342 (Bankr. W.D. Mich. 1999) (Amendments to proofs of claim are permitted “to make a formal proof of claim based upon facts which, within the statutory period, has [sic] already been brought to the notice of the trustee by some informal writing or some pleading in the bankruptcy proceedings.”).
29 In re Jones, 238 B.R. 338, 342–43 (Bankr. W.D. Mich. 1999).
30 In re Delmonte, 237 B.R. 132, 134 (Bankr. E.D. Tex. 1999). Accord United States v. Johnston, 267 B.R. 717, 721 (N.D. Tex. 2001) (Amendment is permitted when the amended claim “arose out of the same ‘conduct, transaction, or occurrence’ set forth in the . . . original claim.”).
31 In re Jagours, 236 B.R. 616, 618 (Bankr. E.D. Tex. 1999). Accord In re Goodman, 261 B.R. 415, 417 (Bankr. N.D. Tex. 2001) (“Amendments to timely filed proofs of claims are liberally permitted when they serve to cure a defect in the claim as originally filed, describe the claim with greater particularity, or plead a new theory of recovery based on the facts set forth in the original claim.”).
32 See In re Delmonte, 237 B.R. 132, 134–35, 136 (Bankr. E.D. Tex. 1999) (Claim for deficiency after postconfirmation repossession and disposition of collateral is an amended claim allowable without regard to bar date. Confirmed plan provided that creditor would repossess and foreclose on collateral and “the unsecured portion of the debt, if any, shall be treated as any other unsecured creditor.” The creditor timely repossessed and disposed of the collateral and then, after the claims bar date, filed an amended proof of claim. The debtor objected. “This Court finds that the Amended Proof of Claim satisfies the requirements to be considered an amendment of the original claim. It relates to and arises out of the same transaction as the original claim. As such, its date of filing relates back to the date of the filing of the original claim and, accordingly, it must be deemed to be timely filed. . . . To disallow the Amended Claim would strip [the creditor] of its deficiency claim and render the provision in the Plan granting the unsecured, deficiency claim of no force and effect. . . . [T]he Plan did not contemplate the surrender of the collateral in full satisfaction of the debt, nor did it contemplate that upon foreclosure any deficiency claim would be relinquished. It specifically provided that the deficiency claim would be treated ‘as any other unsecured creditor.’”).
33 See, e.g., In re King, No. 08-00077, 2008 WL 2856688 (Bankr. D.D.C. July 20, 2008) (unpublished) (Teel) (discussing split of authority).
34 See In re Amador, No. 05-44401-BKC-AJC, 2008 WL 1336962 (Bankr. S.D. Fla. Apr. 9, 2008) (unpublished) (Cristol) (Rejecting Chrysler Fin. Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir. Oct. 24, 2000) (Krupansky, Norris, Suhrheinrich), debtor may surrender collateral postconfirmation, and creditor may file amended claim for deficiency.); In re Tessier, 333 B.R. 174 (Bankr. D. Conn. Nov. 2, 2005) (Krechevsky) (Late proof of claim for deficiency resulting from sale of vehicle is allowed as amendment, relating back to timely proof of claim.).
35 See In re Hibble, 371 B.R. 730, 734 (Bankr. E.D. Pa. July 18, 2007) (Raslavich) (Amended unsecured claim filed after claims bar date did not relate back to timely filed, fully secured claim since unsecured claim is for “a deficiency resulting from disposition of collateral,” and creditor did not reserve right to file deficiency claim.).
37 See In re Winters, 380 B.R. 855 (Bankr. M.D. Fla. Sept. 11, 2007) (Glenn) (Distinguishing In re Hibble, 371 B.R. 730 (Bankr. E.D. Pa. July 18, 2007) (Raslavich), and In re McBride, 337 B.R. 451 (Bankr. N.D.N.Y. Jan. 9, 2006) (Gerling), proof of claim by car lender for deficiency was allowed as amendment to timely filed secured claim when original claim included both secured and unsecured components and specifically reserved right to seek deficiency claim.). Compare In re McBride, 337 B.R. 451, 460 (Bankr. N.D.N.Y. Jan. 9, 2006) (Gerling) (Deficiency claim filed after claims bar date and after AmeriCredit obtained stay relief to repossess its collateral was disallowed as amendment to timely filed secured claim. “AmeriCredit failed to reserve its rights to a deficiency claim when it filed its motion for relief from the automatic stay and submitted its order granting the relief. Instead, it elected to file a proof of claim for the deficiency after the bar date, asserting that it is an amendment to the proof of claim it timely filed in which it asserted a secured claim.” Amendment filed after expiration of bar date should be permitted only when original claim provided notice to court of existence and amount of deficiency claim and notice that it intended to hold estate liable. Notwithstanding disallowance of deficiency claim, court reconsiders AmeriCredit’s secured claim under § 502(j) and allows administrative expense as adequate protection for eight months that debtor used vehicle without making plan payments to AmeriCredit.).
38 See In re Ayres-Haley, No. 07-10314-SSM, 2008 WL 163580 (Bankr. E.D. Va. Jan. 16, 2008) (unpublished) (Mitchell) (Right to file amended proof of claim for deficiency after bar date is not absolute; amended proof of claim filed five months after claims bar date and two months after trustee completed plan payments was disallowed.); In re Davis, No. 02-69077-DOT, 2007 WL 2126261, at *1 (Bankr. E.D. Va. July 20, 2007) (unpublished) (Tice) (Amended proof of claim for deficiency filed four years after surrender of time-share is disallowed. While “amendments of timely-filed claims are generally allowed after the claim bar date, it is not a matter of right if it will cause undue prejudice to the debtor or to other creditors.” Creditor delayed four years in amending proof of claim, trustee had paid other claims and debtor was close to completing Chapter 13 plan. “Allowing the claim at this time would cause undue prejudice to the debtor.”). Compare In re Brown, No. 05-39206-DOT, 2007 WL 1302537 (Bankr. E.D. Va. May 1, 2007) (unpublished) (Tice) (Amendments to a timely filed claim are generally allowed after claims bar date, but subject to review for undue prejudice; amendment of car lender’s claim to assert unsecured deficiency after surrender does not cause undue prejudice when debtor tendered payoff of plan from sale of other collateral at an amount that exceeded expectations of unsecured creditors under original plan.). See also In re Stauffer, 378 B.R. 340 (Bankr. D. Utah Mar. 30, 2007) (Boulden) (Motion to amend claim is denied when amendment would destroy feasibility of confirmed plan and creditor delayed 14 months. Under United States v. Berger (In re Tanaka Bros. Farms, Inc.), 36 F.3d 996, 998–99 (10th Cir. Oct. 3, 1994) (Ebel, Holloway, Kelly), intentional or negligent delay in filing amendment is cause for disallowance.).
39 Pub. L. No. 109-8, 119 Stat. 23 (2005).
40 See discussion beginning at § 75.1 In General: Modification Without § 506.
41 See § 451.1 [ In General: Modification Without § 506 ] § 75.1 In General: Modification Without § 506.
42 See § 509.1 [ 910-Day PMSI Car Claims: Epilogue ] § 132.8 910-Day PMSI Car Claims: Epilogue. See also §§ 287.1 [ Timing, Procedure and Evidence Presumption ] § 135.1 Timing, Procedure and Evidence Presumption and 308.1 [ Miscellaneous Claims Issues ] § 138.7 Miscellaneous Claims Issues.
43 280 B.R. 711 (Bankr. S.D. Ala. 2001).
44 280 B.R. at 715–16. Accord In re Workman, 373 B.R. 460, 464 (Bankr. D.S.C. July 31, 2007) (Waites) (Mortgage creditor that incorrectly stated arrearage amount in original proof of claim cannot amend the claim to assert additional arrearages and other charges when new amounts were “not clearly evident on the face of its original claim.” “[A]mendment is not allowed if the amended claim is actually a new claim filed under the guise of an amendment . . . . Amendment is also not allowed if it will result in undue prejudice to the debtor or to the estate. . . . A secured creditor can also waive its rights by filing an incorrect claim.”).
45 No. 01-11493-MAM-13, 2002 WL 1404761 (Bankr. S.D. Ala. Mar. 8, 2002) (unpublished).
46 2002 WL 1404761, at *4. Accord In re Hedrick, 343 B.R. 762, 766 (Bankr. E.D. Va. Jan. 27, 2006) (Mayer) (Confirmed plan in a solvent Chapter 13 case that provided 100% payment of unsecured claims did not provide for postpetition interest; unsecured creditor cannot overcome preclusive effect of confirmed plan by filing amended proof of claim that adds postpetition interest. “Postpetition interest is not part of an allowed proof of claim but is payable . . . in a chapter 13 case pursuant to a confirmed plan, if provided in the chapter 13 plan. Here, there was no such provision in the confirmed chapter 13 plan. There is no provision in the Bankruptcy Code for the payment of postpetition attorney’s fees, costs or other charges to unsecured creditors. The inclusion of these items in the amended proof of claim was improper in any event.”); In re Vincent, 293 B.R. 467 (Bankr. E.D. Ark. 2003) (Ordinarily a secured claim holder cannot file an amended proof of claim that includes postpetition interest as a way around a confirmed plan that fails to provide for the payment of interest; however, the debtor is precluded from objecting to the amended proof of claim as a sanction for violation of a discovery order.).
47 No. 02-50222, 1994 WL 1886773 (Bankr. S.D. Ga. Oct. 27, 1994) (unpublished).
48 1994 WL 1886773, at *3. Accord In re Workman, 373 B.R. 460, 464 (Bankr. D.S.C. July 31, 2007) (Waites) (When mortgage creditor incorrectly stated arrearage amount in proof of claim, amended proof of claim that asserted additional arrearages and other charges was not allowable because plan was confirmed based on lower arrearage amount and debtor would be unable to cure increased arrearage amount. “Amendment is . . . not allowed if it will result in undue prejudice to the debtor or to the estate. . . . A secured creditor can also waive its rights by filing an incorrect claim.”); In re Taylor, 280 B.R. 711, 715–16 (Bankr. S.D. Ala. 2001) (Mortgage holder cannot amend its claim three months from the end of a 60-month plan to change its claim from unsecured to secured: “[T]he amendment, if allowed, would obviously be very prejudicial to the debtors. They are within three months of completing their plan and discharging Empire’s debt. They paid the debt as requested by Empire. The fault for the problem lies squarely with Empire.”).
50 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), as further amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005). See §§ 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.
51 The 90-day period in (former) Bankruptcy Rule 3002(c) was counted from the first date set for the meeting of creditors—typically scheduled in a Chapter 13 case 40 to 50 days after the petition. Adding the 90 days in (former) Bankruptcy Rule 3002(c) to the maximum 50 days for the scheduling of a meeting of creditors gave most tax claimants approximately 140 days after the petition within which to timely file proofs of claims in cases filed before October 22, 1994.
52 Taxing authorities can move under Bankruptcy Rule 3002(c)(1) for an extension of time within which to file a timely proof of claim. The motion must be filed before expiration of the original time period in Bankruptcy Rule 3002(c)—within the 180-day period (with possible additions) in Bankruptcy Rule 3002(c)(1). See §§ 276.1 [ Governmental Units ] § 132.3 Governmental Units, 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1 General Rules: No Enlargement or Exceptions, Except . . ., 508.1 [ New Timing Issues ] § 133.5 Tax Claim Exception after BAPCPA and 513.1 [ Taxes ] § 136.3 Taxes after BAPCPA.
54 See United States v. Waindel (In re Waindel), 65 F.3d 1307 (5th Cir. 1995) (Late-filed proof of claim for tax years 1982, 1983, 1984, 1985, 1986 and 1990 does not relate back and cannot be an amendment to a timely filed proof of claim for 1990. The late-filed proof of claim sets forth new grounds for liability.); United States v. Johnston, 267 B.R. 717 (N.D. Tex. 2001) (Bankruptcy court should have allowed IRS’s amended claim filed after the bar date to reclassify a portion of the claim as secured based on debtor’s postconfirmation sale of real property that was not adequately identified in the schedules.); United States v. Roberson, 188 B.R. 364, 366 (D. Md. 1995) (Citing In re Unroe, 937 F.2d 346 (7th Cir. 1991), late-filed tax claim for 1991 is not a proper amendment to a timely filed tax claim for 1989. “[T]ax claims for different years constitute entirely new and different claims, and therefore are not properly viewed as amendments.”); In re Goodman, 261 B.R. 415, 417–18 (Bankr. N.D. Tex. 2001) (IRS can amend its claim a year after confirmation to increase priority claim notwithstanding confirmation of a plan that stated the amount of the IRS claim in the amount claimed by the IRS in its original proof of claim. Prior to confirmation, IRS filed proof of claim for $3,812. Confirmed plan included that amount. Debtor did not object to the IRS’s claim, and IRS did not object to confirmation. A year after confirmation, IRS filed an amended claim for $11,029.15. The debtor objected to the amended claim. “Amendments to timely filed proofs of claims are liberally permitted when they serve to cure a defect in the claim as originally filed, describe the claim with greater particularity, or plead a new theory of recovery based on the facts set forth in the original claim. . . . The plan included the original proof of claim amount for 1995. Goodman did not object to the claim and the court confirmed the plan. The allowance or disallowance of claim cannot be precluded solely by confirmation of a plan. . . . [A]mendment of the I.R.S.’s claim would not prejudice the debtor. . . . The amended claim is for income tax for tax year 1995 as was the original proof of claim. The I.R.S.’s amended claim simply alleges a higher amount owed by Goodman for the 1995 income taxes. Goodman was not surprised by the amount of the debt because it is the amount he reported on his tax return. Moreover, the I.R.S.’s claim is entitled to priority under 11 U.S.C. § 507(a)(8). Allowing the correct amount of the priority claim does not unfairly treat unsecured creditors. . . . [W]hile the court is troubled by the delay of the I.R.S. in filing its amended proof of claim, Goodman has not shown that he cannot successfully complete his plan.”); In re Jagours, 236 B.R. 616, 618 (Bankr. E.D. Tex. 1999) (Claim for taxes for calendar years 1994, 1995 and 1996 cannot amend claim for the tax year 1991. Plan confirmed on January 3, 1994, provided for full payment of the IRS’s priority claim of $975.33 for taxes for 1991. On March 16, 1998, IRS filed an “amended claim” for postpetition taxes of $8,741.45 for tax years 1994, 1995 and 1996. “This Court finds that it cannot be considered an amendment of the original claim. To be an amended claim which relates back to the filing of the original claim, the amended claim must bear a relationship to the original claim and must simply be a correction or supplementation of that claim supported by the same operative facts which gave rise to the original claim. That is not the case in this instance since we are dealing with three entirely separate tax years and a claim which has no relation to or bearing on the original claim except that it is for income taxes owed by the same individuals.” Because the “amended” claim is not a priority claim, trustee’s motion to dismiss on the ground of “infeasibility” is denied.); In re Knize, 210 B.R. 773, 778 (Bankr. N.D. Ill. 1997) (IRS timely amended proof of claim to add taxes due from the debtors’ sole proprietorship. IRS filed a proof of claim for $187,431.18 on November 15, 1996. On February 20, 1997, IRS filed an amended proof of claim for $1,336,399.11, which added an assessment of $1,148,967.96 arising out of the debtors’ operation of a business. “Whether to allow amendment to a proof of claim is within the sound discretion of the Court. . . . It is appropriate to apply [Fed. R. Civ. P. 15] here. . . . Since Debtors have not shown prejudice from the delay in filing the amended claim under Fed. R. Civ. P. 15(a), the IRS’s amended proof of claim would have been allowed if leave to file it had been requested. Government counsel should have sought such leave in advance. It would risk denial of amendment where failure to seek such leave in advance would prejudice the debtor. However, no prejudice was shown here to result from failure to obtain advance permission.” The IRS explained that it took several months to connect the debtors to the debtors’ cleaning business because the debtors failed to mention the business in the statements or schedules.); In re Friesenhahn, 169 B.R. 615, 618 (Bankr. W.D. Tex. 1994) (Third amended claim to assert 100% penalty in 26 U.S.C. § 6672 is not allowed as an amendment to a proof of claim for ordinary federal income taxes. Amended claim relates back to the original claim filing if the amended claim is “of the same basic genre as, or bear[s] a sufficient relationship to, the claim or claims included in the original filing.” Although the responsible person liability and personal income taxes both arise under the Internal Revenue Code, “[t]his tenuous connection is not sufficient . . . to characterize the IRS’s [amendment] as an amendment in fact. . . . The IRS’s Original Claim for personal income taxes cannot be said to put one on notice of the subsequent claim for responsible officer penalties. . . . [T]he IRS interposed this purportedly amended claim fourteen months after the debtors’ chapter 13 filing and eleven months after the last date for which claims could be filed under Rule 3002(c). Debtors’ plan provided for repayment of 100% of their unsecured indebtedness over approximately 60 months. Interjection of an additional $36,000 . . . claim will foil the debtors’ chapter 13 plan. . . . Dismissal of this case would be a drastic remedy, and certainly not in the best interests of the debtors or their creditors, including the IRS. . . . Rule 3002(c)(1) of the Federal Rules of Bankruptcy Procedure provides the IRS’s remedy in cases where further time is needed to finally determine liability. . . . The IRS failed to avail itself of that remedy.”); In re Mitchell, 116 B.R. 63 (Bankr. W.D. Va. 1990) (It is appropriate to freely allow amendments to tax claims to cure a defect, so long as the amendment will not cause “undue prejudice to an opposing party.” IRS is permitted to amend claim to “clarify its claim by having the file indicate that it overestimated its [original] claim. . . . [N]o prejudice will result to the trustee, as the opposing party, if the amended claim is allowed.”); In re Garner, 113 B.R. 352 (Bankr. N.D. Ohio 1990) (IRS is not permitted to amend timely filed proof of claim 13 months after confirmation to change the status of one of its claims from general unsecured to priority status when change in status of claim will render the plan infeasible and in all probability result in dismissal of the case. Although amendments of proofs of claim to correct defects and mistakes are liberally allowed, when the proposed amendment involves something not included in the original claim, courts go further to determine whether it is fair under the circumstances to allow the amendment. Here the equities favor the debtor because the IRS has provided no explanation for its erroneous original claim or for its delay in seeking an amendment. The case has proceeded too long and too much has been paid into the plan to permit the amendment of a claim that would cause the case to be dismissed.); In re Richmond, 92 B.R. 713 (Bankr. S.D. Tex. 1988) (Untimely proof of claim for prepetition individual income taxes for 1978, 1980, 1981 and 1982 is allowed on the theory that “the timely filed claim for 1977 federal income taxes indicated an intent on the part of the IRS to hold the debtor liable for past due federal income taxes and pre-petition interest.”); In re Miller, 90 B.R. 317 (Bankr. E.D. Tenn. 1988), aff’d, United States v. Miller (In re Miller), 118 B.R. 76 (E.D. Tenn. 1989) (100% penalty claim for the failure of the debtor’s corporation to pay employment taxes is barred by the IRS’s failure to file a timely proof of claim, and the IRS cannot amend a timely filed claim for personal income taxes to assert the 100% penalty. Court applies the standards for relation back of amendments to pleadings in Rule 15(c) of the Federal Rules of Civil Procedure and concludes that the 100% penalty claim “is not based on the same conduct, transaction or occurrence as the timely proof of claim for personal income taxes.”); In re Owens, 67 B.R. 418 (Bankr. E.D. Pa. 1986) (IRS is not permitted to amend proof of claim to add taxes, penalty and interest for years different than addressed in original proof of claim. IRS has special dispensation in Bankruptcy Rule 3002(c)(1), and when the Service knows of its claim in time to seek an extension of time for filing a proof of claim, it cannot amend a different claim to assert new tax liabilities.); Newcomb v. United States, 60 B.R. 520 (Bankr. W.D. Va. 1986) (IRS is permitted to amend its claim after full payment to include an omitted tax penalty when amendment is offered before entry of debtor’s discharge.); Still v. Tennessee Dep’t of Revenue (In re Rogers), 57 B.R. 170 (Bankr. E.D. Tenn. 1986) (Taxing authority is not permitted to amend timely filed secured claim to add a penalty omitted from original proof of claim. However, taxing authority is permitted to amend timely filed secured claim to add postpetition interest when it appears that the collateral was probably worth more than amount of original claim.); In re Simms, 40 B.R. 186 (Bankr. N.D. Ga. 1984) (Untimely claim for 100% penalty for nonpayment of withholding taxes relating to debtor’s defunct corporation is not allowed as an amendment to timely filed tax claim based upon debtor’s personal income tax liability.).
55 In re Unroe, 937 F.2d 346 (7th Cir. 1991) (Although IRS claim for 1983 taxes was untimely under Bankruptcy Rule 3002(c) and was not rescued by Bankruptcy Rule 7015, the bankruptcy court has broad equitable powers to permit a late-filed claim as an amendment to a timely filed proof of claim. IRS offered no explanation for its late filing, and debtor did nothing to merit disfavor, but it was not an abuse of discretion for the bankruptcy court to allow the untimely claim for 1983 taxes when debtor’s plan included provision for payment of 1982 and 1983 taxes, debtor had scheduled liabilities for 1982 and 1983 taxes and neither debtor nor the creditors were “unfairly surprised” by the IRS’s untimely claim for 1983 taxes. Result may be different if the late claim was unscheduled or exceeded the amount anticipated by debtor or the plan.).
56 See United States v. Hampton, 197 B.R. 297 (E.D. Ark. 1995) (Consent order in dismissed Chapter 13 case that fixed the allowed amount of the IRS’s priority claim does not preclude “amended claims” in subsequent Chapter 13 case that add penalties not asserted in the prior case.).
57 Fed. R. Bankr. P. 3001(f). See § 287.1 [ Timing, Procedure and Evidence Presumption ] § 135.1 Timing, Procedure and Evidence Presumption for further discussion of this evidentiary presumption.
58 292 B.R. 894 (Bankr. C.D. Ill. 2003).
59 292 B.R. at 903–04.
60 See In re Bryant, 397 B.R. 903, 904 (Bankr. N.D. Ind. Oct. 29, 2008) (Grant) (“Amending a proof of claim after it has been objected to . . . seem[s] unnecessary. If the creditor agrees that an objection is well-taken, it does not need to amend its claim to bring it into line with the objection. It can achieve the same result by doing nothing and simply let[ting] the objection be sustained. If the creditor believes the objection lacks merit, amending its claim will not eliminate the problem—the original objection would still remain and will still need to be addressed by the court.”).
61 395 B.R. 356, 366 (Bankr. S.D. Tex. Nov. 19, 2008) (Bohm).
62 In re DePugh, 409 B.R. 84, 90 (Bankr. S.D. Tex. June 26, 2009) (Bohm).
63 In re DePugh, 409 B.R. at 111. See also In re DePugh, 409 B.R. 125 (Bankr. S.D. Tex. June 12, 2009) (Bohm).