§ 134.1     Timing, Form, Superseding and Amended Claims before 2005
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 134.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

11 U.S.C. § 501(c) states, “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.”

[2]

Prior to December 1, 2005, Bankruptcy Rule 3004 purported to implement § 501(c) as follows:

If a creditor fails to file a proof of claim on or before the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, the debtor or trustee may do so in the name of the creditor, within 30 days after expiration of the time for filing claims prescribed by Rule 3002(c).
[3]

Effective December 1, 2005, Bankruptcy Rule 3004 was amended to provide:

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.
[4]

As amended in 2005, Bankruptcy Rule 3004 more accurately implements § 501(c). The Code contemplates that the debtor or the trustee may file a proof of claim if a creditor does not timely file its own claim. As demonstrated above,1 timely filing of proofs of claim is incompletely defined by the Code and Rules, depending on the nature of the claim, when the case was filed and the identity of the claim holder. In bankruptcy cases filed before October 22, 1994, timely often meant a filing under (former) Bankruptcy Rule 3002(c) within 90 days after the first date set for the meeting of creditors.2 In bankruptcy cases filed after October 22, 1994, timely filing of a proof of claim by a governmental unit (only) is defined in § 502(b)(9) as “before 180 days after the date of the order for relief or such later time as the Federal Rules of Bankruptcy Procedure may provide.”3 Effective October 17, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)4 added additional time for the timely filing of tax claims under certain circumstances.5 In bankruptcy cases filed after October 22, 1994, for nongovernmental claims, timely filing is defined by Bankruptcy Rule 3002(c) as within 90 days after the first date set for the meeting of creditors.6

[5]

Before amendment in 2005, Bankruptcy Rule 3004 incongruously triggered the authority of the debtor or trustee to file a proof of claim when the creditor failed to file a claim “on or before the first date set for the meeting of creditors.”7 The first date set for the meeting of creditors will be 90 days before a nongovernmental unit’s claim would be untimely under Bankruptcy Rule 3002(c) and would bear no certain relationship at all to the timeliness of governmental claims—counted from the petition date by § 502(b)(9) in cases filed after October 22, 1994.8 Former Bankruptcy Rule 3004 was inconsistent with § 501(c).

[6]

In 1996, the rules drafters amended Bankruptcy Rule 3002(c) to prescribe a “later time” for the filing of timely proofs of claim by governmental units than the time fixed by Congress in § 502(b)(9).9 As mentioned above,10 Bankruptcy Rule 3002(c)(1) as amended in 1996 provides that a proof of claim filed by a governmental unit is timely if filed “not later than 180 days after the order for relief.”11 In contrast, § 502(b)(9) states that the claim of a governmental unit is timely filed if it is filed “before 180 days after the date of the order for relief.”12 A filing on the 180th day would be untimely under § 502(b)(9) but timely under the 1996 version of Bankruptcy Rule 3002(c)(1). This one-day expansion is not offensive because § 502(b)(9) of the Code authorizes the Federal Rules of Bankruptcy Procedure to provide a later time.

[7]

Reading pre-2005 Bankruptcy Rule 3004 with the 1996 version of Bankruptcy Rule 3002(c)(1) gave the debtor or the Chapter 13 trustee 30 days after 180 days after the petition in which to file a proof of claim on behalf of a governmental unit—a period that expired 210 days after the filing of the petition.13 Nothing in the 1996 amendments to Bankruptcy Rule 3002(c) resolved the inconsistency between former Bankruptcy Rule 3004 and § 501(c) of the Code.

[8]

Despite these quirks in the relationship between former Bankruptcy Rule 3004 and Code § 501(c), pre-2005 Bankruptcy Rule 3004 had been applied to permit the debtor to file a § 501(c) proof of claim on behalf of a creditor until 30 days after expiration of the Bankruptcy Rule 3002(c) bar date.14 The 2005 amendment to Bankruptcy Rule 3004 is consistent with those prior holdings, since the Rule now specifically permits the debtor or trustee to file a proof of claim for a creditor that does not file its own timely proof of claim within 30 days after the Rule 3002(c) bar date.

[9]

Bankruptcy Rule 3004 now creates a narrow 30-day window during which the debtor or the trustee can file for a creditor—without regard to whether the creditor is a governmental unit. To be safe, a debtor or trustee should file a proof of claim on behalf of a creditor within 30 days after expiration of the applicable Bankruptcy Rule 3002(c) deadline. With respect to nongovernmental creditors, this will typically be on or between the 91st and 120th days after the first date set for the meeting of creditors. For claims filed on behalf of a governmental unit, the window opens on the 181st day after the petition and closes on the 210th day after the petition—except with respect to tax claims resulting from tax returns filed under § 1308.15

[10]

The debtor or trustee who misses the window for timely filing a claim on behalf of a creditor may be out of luck upon objection given the specificity of amended Bankruptcy Rule 3004. Whether the claim is filed “early” or “late” for purposes of § 501(c), Bankruptcy Rule 3004 now states that a claim may be filed “within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c).” Filing early or late could require disallowance of the claim.

[11]

Why the painfully detailed attention to the time periods for filing claims on behalf of a creditor under Bankruptcy Rule 3004? Demonstrated elsewhere,16 several courts of appeals have reported decisions linking the effects of confirmation to the filing of claims in Chapter 13 cases. In particular, the free and clear effect of confirmation under § 1327(c)17 with respect to liens provided for by the plan may be determined in some circuits by whether the lienholder filed a proof of claim or whether a claim was filed on behalf of the lienholder. Increasingly, it is in the interests of debtors to file proofs of claim on behalf of certain creditors in Chapter 13 cases, and conversely it may be in the interests of those same creditors to challenge the filing of claims on their behalf.

[12]

Over many decades, the courts have strictly enforced bar dates for timely filing of proofs of claim by creditors.18 It is not surprising for courts to also strictly enforce the time limits for filing proofs of claim by debtors and trustees on behalf of creditors.19 When the validity of a lien or the effect of confirmation of a plan that limits a lien is dependent on whether an allowable claim was filed on behalf of the lienholder by the debtor or the trustee, the time limits in Bankruptcy Rule 3004 are sure to be tested.

[13]

Although the 90-day and 180-day periods for proofs of claim in Bankruptcy Rule 3002(c) cannot be enlarged except as specifically provided in Rule 3002(c),20 the 30-day period in Bankruptcy Rule 3004 within which the debtor or trustee may file a proof of claim on behalf of a creditor can be enlarged by motion under Bankruptcy Rule 9006(b)(1).21 A motion to enlarge the 30 days in Bankruptcy Rule 3004 can be filed before or after expiration of the original 30-day window. If the motion is made before expiration of the 30-day period, the window can be enlarged “for cause.”22 If the motion for enlargement is made after expiration of the original 30-day period, then the debtor or trustee must show cause and that “the failure to act was the result of excusable neglect.”23 The possibility of reopening the window for the timely filing of a claim on behalf of a creditor even after expiration of the initial periods in Rule 3004 may aid debtors in dealing with unscheduled debts that are discovered after the time has expired for filing timely claims under Rule 3002(c).24

[14]

The lack of clarity in the Bankruptcy Rules with respect to the filing deadlines for secured claims could disrupt application of Bankruptcy Rule 3004. Discussed above,25 there is controversy whether Bankruptcy Rule 3002 defines timely with respect to the filing of proof of a secured claim. In a jurisdiction that interprets Bankruptcy Rule 3002(c) to be inapplicable to the filing of secured claims, there will be no period specified by the Code or Bankruptcy Rules within which a secured claim holder (other than a governmental unit)26 must file a timely proof of claim; thus, there is no date from which to count the 30 days in Bankruptcy Rule 3004.27 The same rules drafters who refuse to fix Bankruptcy Rule 300228 should explain how Rule 3004 works without a bar date for secured claims.

[15]

In a jurisdiction that does not recognize Bankruptcy Rule 3002(c) as a constraint on the timely filing of secured claims, because the authority to file claims on behalf of creditors is contained in § 501(c), the courts will eventually have to fill the procedural gap and impose some deadline within which the debtor or trustee can or must file a proof of claim on behalf of a secured claim holder. Debtors and trustees are best advised to act under Bankruptcy Rule 3004 as if Bankruptcy Rule 3002(c) does apply to secured claim holders.

[16]

In cases filed after October 22, 1994, a governmental unit has at least180 days after the petition in which to timely file proof of a secured or unsecured claim.29 The expanded 180-day period for the timely filing of claims by governmental units will push later into the case the time period within which a debtor or trustee can file a claim on behalf of a governmental unit. Two hundred ten days after filing is a long time in the life of a Chapter 13 case. In jurisdictions that reach confirmation soon after the meeting of creditors,30 the passage of six or seven months without the filing of a proof of claim will mean that the governmental unit misses four or five distributions under the confirmed plan. Governmental units often hold claims that Chapter 13 debtors want to pay through the plan.31 The 1994 amendment to § 502(b)(9) allows governmental units more time to timely file proofs of claim; the amendment has the unfortunate side effect of delaying the filing of government-held claims by the debtor and trustee.

[17]

The Rules do not provide a separate form for the filing of a proof of claim by the debtor or trustee on behalf of a creditor. Official Bankruptcy Form 10, as amended December 1, 2008, contains a box to be checked if the filer of the proof of claim is “the debtor or trustee in this case.”32 The drafters of the official forms apparently intend that Official Bankruptcy Form 10 will be used by debtors and trustees to file claims on behalf of creditors.

[18]

Bankruptcy Rule 3004 requires the clerk of the court to “forthwith mail notice of the filing to the creditor, the debtor and the trustee.” This notice provides the creditor an opportunity to object to the claim and, perhaps, an invitation to file an amendment to the debtor’s or trustee’s claim.33 Failure to do anything will leave the creditor bound by an allowed claim that it didn’t file—with all the consequences that follow.34

[19]

Prior to amendment in 2005, Bankruptcy Rule 3004 provided that a claim filed by a creditor on its own behalf “pursuant to Rule 3002 . . . shall supersede the proof filed by the debtor or trustee.” As amended in 2005, Bankruptcy Rule 3004 no longer refers to a responsive claim filed by a creditor that would supersede the claim filed on its behalf. In recognition that former Bankruptcy Rule 3004 was not entirely consistent with § 501(c) of the Code,35 the amended Rule omits any reference to superseding claims. 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 on behalf of a creditor until after the creditor’s time to file a timely proof of claim has expired. Since the debtor or trustee must wait until after that bar date, “the rule no longer permits the creditor to file a proof of claim that will supersede the claim filed by the debtor or trustee.”36

[20]

The creditor that lets its time to file a timely claim expire is faced with the reality that any proof of claim it files in response to the debtor’s or trustee’s proof of claim will be untimely. Anticipating this problem, the 2005 advisory committee note to amended Bankruptcy Rule 3004 goes on to state that the amended Rule “leaves to the courts the issue of whether to permit subsequent amendment of [the proof of claim filed by the debtor or trustee].”37 This committee note invites the possibility that a creditor can file a proof of claim that amends the claim filed on its behalf under Bankruptcy Rule 3004.

[21]

Detailed above,38 the process of amending a proof of claim begins with Official Bankruptcy Form 10. The creditor that wants to amend a claim filed on its behalf by the debtor or trustee should quickly39 file its own Form 10, carefully checking the proper boxes40 and providing the required information about the prior claim and the intended amendment.

[22]

An amended claim is “deemed” allowed by § 502(a) absent objection.41 Upon objection, promptness in filing the amended claim is rewarded42 and some weighing of the prejudice that will result from allowance is likely.43 That the amending creditor seeks to adjust or correct a claim not of its own filing perhaps cuts in favor of allowance; that the amending creditor failed to timely file its own claim weighs to the contrary.

[23]

The pre-2005 case authority addressing the allowance of superseding claims under former Bankruptcy Rule 3004 sometimes polluted analysis of allowance of amending claims. The reference to Bankruptcy Rule 3002 in the former version of Bankruptcy Rule 3004 suggested that the 90-day and 180-day bar dates in Bankruptcy Rule 3002(c) applied when the creditor attempted to file a superseding proof of claim. The Committee Notes to pre-2005 Bankruptcy Rule 3004 supported this view.44 Unlike the 30-day period for the debtor or trustee to file a claim on behalf of a creditor under Bankruptcy Rule 3004, there was no permission in Bankruptcy Rule 9006 to extend the 90-day or 180-day deadlines in Bankruptcy Rule 3002(c) when a creditor sought to file a superseding claim.45

Reported decisions held that Bankruptcy Rule 3004 precluded superseding effect for any claim filed by the creditor after the 90-day or 180-day deadlines in Bankruptcy Rule 3002(c).46

[24]

“Supersede” in former Bankruptcy Rule 3004 meant something different from “amendment.”47 It was not clear under the former Rule, and remains less than crystal clear under the amended Rule, whether or within what time period a creditor can/must file an amendment to a proof of claim that was timely filed by the debtor or the trustee on behalf of the creditor. As mentioned above,48 under current Bankruptcy Rule 3004 at least the Advisory Committee commentators believe it is within the discretion of the court whether and under what circumstances to allow a creditor’s claim that purports to amend a claim filed on the creditor’s behalf. The provision for superseding claims in former Bankruptcy Rule 3004 argued against amendment as a way of avoiding the specific time periods in Bankruptcy Rule 3004. It had been held—though not unanimously—that after the deadlines in Bankruptcy Rule 3002, a creditor could not file an allowable late proof of claim to either amend or supersede a claim filed by the debtor under former Bankruptcy Rule 3004.49

[25]

Under the former Rule, creditors had to be awake to have any chance of filing an allowable superseding claim and to object to any claim filed by the debtor or trustee. Doing nothing put the creditor in the worst possible position—bound by the claim filed by the debtor or trustee and precluded from filing a superseding claim. This threat continues to be true at least to this extent: the creditor that does not promptly file an amended claim or an objection is likely to be bound by the proof of claim filed on its behalf.50

[26]

This is exactly what happened to a taxing authority in Tepper v. Burnham (In re Tepper).51 The debtor in Tepper scheduled ad valorem taxes secured by statutory liens. The taxing authority did not file a proof of claim. Four years after the petition, the debtor filed (nominal) $100 proofs of claim on behalf of the taxing authority and modified the plan to pay the $100 claims in full satisfaction of the liens. Although the debtor’s proofs of claim were clearly disallowable as untimely under (former) Bankruptcy Rule 3004, the taxing authority neither filed a superseding claim nor objected to the claims filed by the debtor. The debtor completed payments under the modified plan and received a discharge.

[27]

As these things go, after discharge the taxing authority awoke and sent the debtor a large bill for ad valorem taxes. The debtor dragged the taxing authority before the bankruptcy court for violating the discharge injunction. The bankruptcy court ruled for the debtor:

Because the bankruptcy court has no authority to prohibit the filing of an untimely proof of claim, that claim is allowed unless a party in interest objects. . . . Plaintiff filed two proof[s] of claim[ ] on behalf of the Defendant. The proof[s] of claim[ ] were filed four (4) years into Plaintiff’s chapter 13 case and were untimely. The proof[s] of claim[ ] dealt with Defendant’s 1994 and 1995 claim for ad valorem taxes . . . . The Defendant was mailed a copy of the notice of the proof[s] of claim[ ]. However, neither the Defendant nor any other party objected to the proof[s] of claim[ ] filed on Defendant’s behalf. Therefore, the proof[s] of claim[ ] filed on Defendant’s behalf are allowed and are presumptively valid in the amount and characterization of Defendant’s claims.52
[28]

The lesson of Tepper is not confined to former Bankruptcy Rule 3004: snooze and you lose in Chapter 13 cases.53

[29]

One reported decision finds that a mistake with respect to the clerk’s notice to the creditor when the debtor or the trustee files a proof of claim under (former) Bankruptcy Rule 3004 can provide relief from the time bar to the filing of a superseding claim. In In re Cook,54 the debtors filed a proof of claim on behalf of Ford Motor Credit Corporation for $3,500. The clerk of the bankruptcy court did not mail notice of the debtors’ filing to FMCC. After the bar date for filing proofs of claim in Bankruptcy Rule 3002, FMCC found out about the debtors’ claim and filed a larger claim.

[30]

The bankruptcy court first found that the untimely proof of claim filed by FMCC could not be a superseding claim for purposes of (former) Bankruptcy Rule 3004. However, the court found that the debtors owed substantially more than $3,500 and knew so at the time they filed the claim on behalf of FMCC. Characterizing the debtors’ filing as “materially false,” the bankruptcy court held that the failure of notice to FMCC justified reconsideration of the debtor’s proof of claim under § 502(j); upon reconsideration, the court allowed the claim at the higher amount asserted by the creditor:

Because the debtors owed substantially more than $3,500, the proof of claim filed by [the debtors’ attorney] is materially false. FMCC lost a valuable right by not receiving notice that a materially false claim was filed on its behalf. Had FMCC received proper notice . . . it could have objected to confirmation. . . .  The clerk is required to mail the creditor notice of the filing of the claim on its behalf. . . . The clerk did not mail notice of the debtor’s filing to FMCC. . . . Because FMCC did not receive notice that a claim had been filed on its behalf, the Court will reconsider the order allowing the claim filed on its behalf.55
[31]

Cook offers two lessons for Chapter 13 debtors contemplating the filing of claims on behalf of a creditor. First, the filing of a claim under any version of Bankruptcy Rule 3004 is not a license to lie, cheat or steal. Making up numbers or filing a claim in an amount that the debtor knows is not accurate can backfire by simply prolonging (indefinitely) the creditor’s opportunity to correct the claim by reconsideration under § 502(j).56 Moreover, knowingly filing a false claim on a creditor’s behalf creates ethical problems for the debtor and the debtor’s attorney.57

[32]

Second, although Bankruptcy Rule 3004 assigns to the clerk the responsibility of giving notice, debtors have an interest in seeing that notice is proper to the creditor. Cook suggests that a failure of notice of a claim filed under (former) Bankruptcy Rule 3004 leaves an open door to the creditor to file an untimely claim that technically cannot supersede the debtor’s claim but accomplishes the same result by reconsideration. Perhaps the debtor who files a claim on behalf of a creditor should give notice to the creditor notwithstanding the clerk’s responsibility under Bankruptcy Rule 3004.

[33]

From a step further back, Cook raises a difficult question about the debtor’s obligation to be accurate in a proof of claim filed on behalf of a creditor. At one level, debtors will rarely know exactly how much is owed to a creditor. If the debtor thinks the car is worth $3,500 and FMCC thinks the car is worth twice that much, has the debtor filed a “materially false” claim if the claim filed by the debtor under Bankruptcy Rule 3004 is a secured claim for $3,500? Does the debtor have an obligation to file all of the claims held by a creditor if the debtor desires to file any claim on that creditor’s behalf? For example, if the car lender’s claim is $10,000 and the debtor thinks the car is worth only $7,000, can the debtor file only a $7,000 secured claim on behalf of the creditor, or is the debtor also obligated to list the $10,000 on the face of the proof of claim? In effect, is the debtor obligated to file proof of the unsecured claim held by any undersecured creditor for whom the debtor desires to file proof of a secured claim (only) under Bankruptcy Rule 3004? In the sense used in Cook, the debtor in most situations will know that the creditor’s total claim is larger than the value of the collateral. Does Cook penalize the debtor’s choice to file only the secured portion of the claim?

[34]

Compare the situation in In re Jones.58 In Jones, the debtor filed a proof of claim on behalf of the IRS under Bankruptcy Rule 3004 with respect to only the secured portion of a tax debt. The IRS then filed an untimely proof of claim asserting a larger secured claim and adding priority and general unsecured claims. The debtors objected. The bankruptcy court held that the IRS’s untimely filed claim could not supersede or amend the proof of claim filed by the debtor. The court noted that the IRS’s priority and general unsecured claims would be discharged without payment if the debtor completed payments under the plan.

[35]

And what about Tepper? As related above, the debtor in Tepper scheduled ad valorem taxes in the amount of $2,248.99. Four years later, when the debtor filed $100 proofs of claims on behalf of the taxing authority, the debtor surely was aware that a larger sum was owed. Yet the bankruptcy court concluded that the taxing authority’s failure to file a superseding claim and failure to object to the debtor’s claims or modified plan was fatal to its claim and liens.

[36]

How are Tepper and Jones different from Cook? There is every reason to believe from reading the decision that the debtor in Jones knew there were a variety of tax debts in the case. The debtor’s choice to file a proof of claim on behalf of the IRS for only the secured portion of the tax debt is perfectly understandable, but how is that choice different from the debtors’ choice in Cook to only file a proof of claim based on the debtors’ estimated value of the car? And there is no doubt that the debtor in Tepper filed $100 proofs of claim on behalf of a taxing authority that the debtor knew held a larger claim. Did the debtors in Tepper and Jones just get away with it? If Cook is correctly decided, the debtors’ choices in Tepper and Jones carried a risk of resurrecting a time-barred claim.

[37]

Bankruptcy Rule 3004 says nothing about the filing of a proof of claim by the debtor or the trustee on behalf of the holder of a postpetition claim. Postpetition claims are defined and controlled by § 1305 of the Code.59 Section 1305(a) recites that proof of a postpetition claim “may be filed by any entity that holds a [postpetition] claim against the debtor.” Section 1305 seems to contemplate that only the holder of a postpetition claim can file proof of that claim.60 Many courts have held that Bankruptcy Rule 3004 does not authorize the debtor or the trustee to file a proof of claim on behalf of a postpetition claim holder.61

[38]

There is an argument from statutory interpretation that a Chapter 13 debtor can file a proof of claim on behalf of a narrow class of creditors that arguably hold postpetition claims. Under 11 U.S.C. § 501(d), “a claim of a kind specified in section . . . 502(i) of this title may be filed under [§ 501(c)] . . . the same as if such claim . . . had arisen before the date of the filing of the petition.” The cross-reference in § 501(d) to § 502(i) incorporates “a claim that does not arise until after the commencement of the case for a tax entitled to priority under section 507(a)(8).”62

[39]

Explored elsewhere,63 tax claims that “arise” after the petition for § 502(i) purposes in a Chapter 13 case may overlap taxes that “become payable . . . while the case is pending” for purposes of postpetition claims under § 1305(a)(1).64 If and when they do overlap, it is arguable that § 501(d) would allow the debtor to file a claim under § 501(c) and Bankruptcy Rule 3004.

[40]

For example, taxes entitled to priority under § 507(a)(8) include “allowed unsecured claims of governmental units . . . for— . . . (C) a tax required to be collected or withheld and for which the debtor is liable in whatever capacity.”65 Imagine sales taxes that “arise” in a Chapter 13 case after the petition when the debtor sells inventory. Sales taxes would be a claim that “does not arise until after the commencement of the case,” and the sales taxes would be “entitled to priority under section 507(a)(8).” Sales taxes that “become payable” by the debtor while the case is pending may be postpetition claims under § 1305(a)(1).66 If the taxing authority “does not timely file a proof” of claim for the postpetition sales taxes, § 501(d) and (c) seem to authorize the debtor to file a proof of claim on behalf of the taxing authority with respect to the postpetition sales taxes.

[41]

The question then arises: what is “timely” for the filing of a proof of claim by a taxing authority for taxes that “arise” after the petition? The answer to that question will determine when the window opens under § 501(c) and Bankruptcy Rule 3004 for the filing of a claim by the debtor or trustee. It is possible that the 180-day deadline (plus possible additions) in § 502(b)(9)67 defines “timely” for these purposes—though that outcome is loaded with interpretive difficulties given that a § 502(i) tax claim could arise at any time during a Chapter 13 case. Perhaps there is no “timely” in this context and the debtor’s authority to file a proof of claim for the postpetition taxing authority never triggers under the Code or Rules. Is it the responsibility of the courts to define “timely” for this purpose?

[42]

Almost precisely these facts were presented to Bankruptcy Judge Steen in the Southern District of Texas in In re Flores.68 The debtor filed Chapter 13 on August 31, 1999. The debtor owed sales taxes for the third quarter of 1999. During the Chapter 13 case, the debtor continued to fail to pay sales taxes. Eventually, the debtor filed a proof of claim on behalf of the state of Texas for sales taxes accruing before and after the petition and moved to modify the plan to pay the pre- and postpetition taxes through the plan. The state of Texas objected both to the proof of claim and to the proposed modification.

[43]

The bankruptcy court first noted, “[N]ot all postpetition claims are alike.” Citing §§ 502(i) and 501(c) and (d), the court found that a claim for sales taxes arising postpetition can be filed and is allowed or disallowed as if it were a prepetition claim. But this special form of priority claim that arises after the petition is not necessarily a “postpetition claim” under § 1305. To reconcile §§ 502(i), 501(c) and (d) and 1305, the court explained:

[W] ith respect to § 507(a)(8) sales tax liability in chapter 13 cases . . .  [t]he Debtor may file a proof of claim for the taxing authority if (i) the claim arises postpetition (because, for example, of the due date of the return), (ii) the claim is related to prepetition activity, and (iii) the taxing authority has not filed a claim within the deadline for filing a governmental claim.
        However, the debtor may not file a claim on behalf of a taxing authority with respect to postpetition claims. A postpetition claim, with respect to § 507(a)(8) sales tax liability in chapter 13 cases, is a liability that arises postpetition and relates only to postpetition activity. Bankruptcy Code Section 1305 does not authorize the debtor to file a proof of claim for the creditor for these postpetition claims. There does not appear to be any other statutory authority for the debtor to do so. Bankruptcy Code section 501(c) only authorizes the debtor to file a proof of claim on behalf of a creditor if the creditor does not file the claim timely. Since there is no deadline for filing a postpetition claim, the debtor’s right under § 501(c) never arises. Section 501(d) and Section 502(i) deal with claims for sales taxes that arise after the petition date. Congress used different words in § 1305 when it dealt with postpetition claims.69
[44]

Although the distinction between prepetition and postpetition “activity” is not found in the Code, it served the purpose in Flores: to distinguish priority tax claims arising after the petition that can be filed by the debtor under § 501(c) from postpetition taxes that fall within § 1305 and may be filed only by the entity holding the claim.70

[45]

One Chapter 13 debtor tested the concept of “withdrawal” of a claim filed on behalf of a creditor. In In re Hutchins,71 the debtor filed a proof of claim on behalf of a mortgage holder as part of an effort to save her home. The debtor apparently wanted the mortgage holder paid through the plan so that the mortgage holder would not attempt foreclosure or other litigation. The debtor eventually defaulted under the plan and lost the home to foreclosure. The debtor salvaged the rest of the plan but sought to cut off payments to the (former) mortgage holder with respect to its deficiency by withdrawing the proof of claim she filed earlier in the case. The bankruptcy court held that a debtor cannot withdraw a proof of claim filed on behalf of a creditor:

Bankruptcy Rule 3006 is the provision allowing withdrawal of a proof of claim. It provides that “a creditor may withdraw a claim as of right by filing a notice of withdrawal except as provided by this rule.” . . . While a creditor is allowed to withdraw a claim it has filed, no provision of the bankruptcy code allows a debtor to withdraw a claim filed by that debtor on behalf of a creditor. . . . The mere fact that this claim no longer is viewed as benefitting Debtor is not a ground for withdrawing it. . . . Debtor is estopped from such claim withdrawal.72
[46]

Once the debtor files a proof of claim on behalf of a creditor, there may be good reasons why the debtor will then want to object to that claim.73


 

1  See discussion of who should file proofs of claim beginning at § 132.1  1994 Code Amendments Changed the Rules.

 

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

 

3  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). See § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

4  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

5  11 U.S.C. § 502(b)(9), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in §§ 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.

 

6  See § 132.1  1994 Code Amendments Changed the Rules, § 132.2  In General: Filing is Required for Allowance and discussion beginning at § 132.4  Unsecured Claims.

 

7  Fed. R. Bankr. P. 3004 (pre-2005 version).

 

8  Of historical interest only, between October 22, 1994—the effective date of the 1994 amendment to § 502(b)(9)—and December 1, 1996—the effective date of the 1996 amendment to Bankruptcy Rule 3002(c)—the Code and the Rules were also inconsistent with respect to the “time for filing claims” referenced in Bankruptcy Rule 3004. During that gap, (former) Bankruptcy Rule 3002(c) actually prescribed a shorter definition for the timely filing of proofs of claim by a governmental unit than the time provided in § 502(b)(9) of the Code. This inconsistency, of course, was because the Rules had not yet been amended to reflect the 1994 amendments to the Code. Nonetheless, the Code prohibited the Rules from providing a shorter time, and during this gap period, Bankruptcy Rule 3004 nonsensically referred to a timeliness definition in Bankruptcy Rule 3002(c) that was not the same as the Code definition of timeliness for filing proofs of claim by governmental units in § 502(b)(9). Arguably, during this gap period, Bankruptcy Rule 3004 limited the filing of a claim by the trustee or debtor on behalf of a creditor to the 30-day period after 90 days after the first date set for the meeting of creditors, notwithstanding that § 502(b)(9) permitted the timely filing of a proof of claim by a governmental unit at least until 180 days after the filing of the petition. This inconsistency was eliminated by amendment of Bankruptcy Rule 3002(c) effective December 1, 1996.

 

9  The Code allows the Rules to prescribe a “later time” than the time fixed by § 502(b)(9). See 11 U.S.C. § 502(b)(9), discussed in §§ 275.2 [ In General: Filing is Required for Allowance ] § 132.2  In General: Filing is Required for Allowance, 276.1 [ Governmental Units ] § 132.3  Governmental Units and 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1  General Rules: No Enlargement or Exceptions, Except . . ..

 

10  See § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

11  Fed. R. Bankr. P. 3002(c)(1). 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 for discussion of the 2005 amendment to Rule 3002(c)(1), giving governmental units additional time to file a proof of claim in response to a tax return filed under 11 U.S.C. § 1308.

 

12  11 U.S.C. § 502(b)(9). See § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

13  See In re Tonner, 291 B.R. 216, 217–18 (Bankr. S.D. Ga. 2002) (Debtors have 210 days to file a proof of claim on behalf of a governmental agency for child support. “Section 501(c) of the Bankruptcy Code . . . specifically gives the debtor the right to file a proof of claim on behalf of a creditor if the creditor fails to do so in the time allowed, and in Section 502(b)(9), Congress specified that the government must have at least 180 days to file a claim. Therefore, the language of the Bankruptcy Code permits a debtor to file a proof of claim on behalf of the government after 180 days following the order for relief. The Bankruptcy Rules flesh out the specifics, and are plain on their face in giving the debtor 30 days to file a proof of claim for the government after the government’s 180 days have run. Fed. R. Bankr. P. 3002(c)(1), 3004. . . . [T]he Court concludes that the debtor’s time to file a claim on behalf of a government creditor that has failed to file a claim by the first date set for the 341(a) meeting runs from the day after the date set for the meeting until 210 days after the order for relief.”).

 

14  See In re Gurst, 80 B.R. 27 (E.D. Pa. 1987) (Bankruptcy Rule 3004, as amended effective August 1, 1987, permits a debtor 30 days after the expiration of the bar period to file a § 501(c) claim on behalf of a creditor. Prior law permitted the debtor a reasonable period of time. A proof of claim filed on behalf of a creditor 10 months after the bar date is untimely notwithstanding that 34 days before the filing of the proof of claim the creditor was permitted to withdraw its proof of claim.); In re Tonner, 291 B.R. 216, 218 (Bankr. S.D. Ga. 2002) (Applying § 501(c) of the Code and Bankruptcy Rules 3002(c)(1) and 3004, debtors have 180 days plus 30 days or a total of 210 days in which to file a proof of claim for child support on behalf of a governmental agency. “[T]he Court concludes that the debtor’s time to file a claim on behalf of a government creditor that has failed to file a claim by the first date set for the 341(a) meeting runs from the day after the date set for the meeting until 210 days after the order for relief.”); In re Hill, 286 B.R. 612, 615 (Bankr. E.D. Pa. 2002) (“[I]f a creditor, including a secured creditor, fails to file a proof of claim by the first date set for the meeting of creditors, the debtor may do so in the name of the creditor within 30 days after expiration of the bar date for filing claims.”); Tepper v. Burnham (In re Tepper), 279 B.R. 859, 863 (Bankr. M.D. Fla. 2002) (“[T]he debtor or trustee may file a proof of claim in the name of the creditor within 30 days after the expiration of the time for filing claims begins to apply to the creditor.”); In re Townsville, 268 B.R. 95 (Bankr. E.D. Pa. 2001) (When the bar date for filing claims under Rule 3002(c) was January 23, 2001, the deadline for the debtor to file a claim under Bankruptcy Rule 3004 was February 22, 2001.); In re Kelley, 259 B.R. 580 (Bankr. E.D. Tex. 2001) (The proof of claim filed by the debtor on August 8, 2000, on behalf of a mortgage holder was “precarious” because the 30-day period in Bankruptcy Rule 3004 expired on July 7, 2000.); In re Moore, 247 B.R. 677, 687 (Bankr. W.D. Mich. 2000) (On its face, Rule 3004 would appear to preclude the filing of a protective claim beyond 30 days after the time limits set by Rule 3002(c).”); In re Alderman, 150 B.R. 246, 253 (Bankr. D. Mont. 1993) (“The Debtor may file proof of a secured creditor’s claim, and thereby provide that the secured claim be allowed and share in distribution, under § 501(c), within 30 days after the expiration of the 90 days set by Rule 3002(c).”); In re Martin, 130 B.R. 349 (Bankr. M.D. Fla. 1991) (Bankruptcy Rule 3004 permits a debtor to file a claim on behalf of a creditor that has failed to timely file a proof of claim, but debtor’s claim must be filed within 30 days after expiration of the time for filing claims. When a prior court order fixed the claims bar date as March 20, 1991, the debtor could not file a claim under Bankruptcy Rule 3004 on June 19, 1991, 91 days later); In re Weissman, 126 B.R. 889 (Bankr. N.D. Ill. 1991) (Bankruptcy Rule 3004 only allows filing of claims by debtor within 30 days after expiration of the time for filing claims prescribed by Bankruptcy Rule 3002(c). After expiration of 30 days after the claims bar date in Bankruptcy Rule 3002(c), debtor cannot file an allowable claim on behalf of a creditor and thus cannot subject the claim holder to the terms of the confirmed plan.).

 

15  This exception is discussed in §§ 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.

 

16  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 and 234.1 [ Failure to Provide For ] § 121.3  Failure to Provide For.

 

17  See § 231.1 [ 11 U.S.C. § 1327(c): Free and Clear Effect on Liens ] § 120.4  11 U.S.C. § 1327(c): Free and Clear Effect on Liens.

 

18  See §§ 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.

 

19  See, e.g., In re Bardell, 361 B.R. 468 (Bankr. N.D. W. Va. 2007) (Because debtor has only 30 days after 90 days after first date set for meeting of creditors in which to file a proof of claim on behalf of a creditor under Bankruptcy Rules 3004 and 3002(c), motion to file late claim on behalf of a creditor filed on July 26, 2006, is untimely when meeting of creditors was first scheduled for February 3, 2006.).

 

20  Fed. R. Bankr. P. 9006(b)(3) (“[T]he court may enlarge the time for taking action under . . . [Rule] 3002(c) . . . only to the extent and under the conditions stated in [that Rule].”). See § 282.1 [ General Rules: No Enlargement or Exceptions, Except . . . ] § 133.1  General Rules: No Enlargement or Exceptions, Except . . ..

 

21  See In re Hogan, 346 B.R. 715, 721–22 (Bankr. N.D. Tex. 2006) (“A debtor or a trustee who fails timely to file a proof of claim on behalf of a creditor under Fed. R. Bankr. P. 3004, may obtain an enlargement of the Rule 3004 deadline for ‘cause shown’ where ‘the failure to act was a result of excusable neglect.’ Fed. R. Bankr. P. 9006(b)(1). However, this procedure is not available to creditors by reason of Rule 9006(b)(3)[,] which restricts extending the Rule 3002(c) deadline.”); In re Jukel, No. 99-13833/JHW, 2002 WL 31002913, at *1 n.1 (Bankr. D.N.J. July 23, 2002) (Letter opinion) (“Bankruptcy Rule 9006(b)(1) permits enlargement of time for a debtor to file a proof of claim after the expiration of the specified period where the failure to act was the result of excusable neglect, and where the enlargement is requested by formal motion.”); In re Townsville, 268 B.R. 95, 105 (Bankr. E.D. Pa. 2001) (“Debtors can utilize [Bankruptcy Rule 9006(b)(1)] to seek an extension of the deadline imposed on them by Rule 3004 for filing claims, but creditors who are subject to the time deadline under Rule 3002(c) for filing claims cannot.”); In re Moore, 247 B.R. 677, 687 (Bankr. W.D. Mich. 2000) (“On its face, Rule 3004 would appear to preclude the filing of a protective claim beyond 30 days after the time limits set by Rule 3002(c). However, Rule 9006(b) permits enlargement of this time period.”).

 

22  Fed. R. Bankr. P. 9006(b)(1). See In re Alderman, 150 B.R. 246, 253 (Bankr. D. Mont. 1993) (“[T]ime under Rule 3002(c) may not be enlarged except in limited circumstances. . . . In contrast, the 30 day period for the Debtors to file a Proof of Claim in the name of the Bank is not so limited under Rule 9006, and may be enlarged at a court’s discretion.”).

 

23  Fed. R. Bankr. P. 9006(b)(1). See Ain v. Myers (In re Ain), 193 B.R. 41, 45–46 (D. Colo. 1996) (Excusable neglect under Bankruptcy Rule 9006 permits Chapter 13 debtor to file a proof of claim on behalf of a creditor under Bankruptcy Rule 3004 after expiration of 30 days after the 90-day period in Bankruptcy Rule 3002. “[R]ules 3002(c) and 3004 differ in that the bankruptcy court may, in its discretion, enlarge the time to file a proof of claim under rule 3004. . . . If the drafters of rule 9006 intended to exempt rule 3004 from the excusable neglect standard of rule 9006(b)(2), then surely they would have listed rule 3004 in rule 9006(b)(3). . . . I hold that a bankruptcy court may enlarge the time for taking action under rule 3004 if the court finds that excusable neglect exists pursuant to rule 9006(b)(1). Although rule 9006(b)(3) provides that the time limit imposed by rule 3002(c) may not be enlarged except as provided by one of the six exceptions recognized by rule 3002(c), rule 9006(b)(3) does not incorporate rule 3004 by implication. Rule 3004’s filing deadlines, therefore, may be enlarged only upon a finding of excusable neglect.”); In re Townsville, 268 B.R. 95, 108 (Bankr. E.D. Pa. 2001) (Untimely $1 proof of claim filed by the debtor on behalf of mortgage holder is disallowed. Deadline for filing Rule 3004 claims was February 22, 2001. On March 1, 2001, debtor filed a $1 proof of claim on behalf of the holder of a prepetition foreclosure judgment. Debtor conceded that this proof of claim was untimely but argued that earlier filed Chapter 13 plan was an informal proof of claim that could be amended by the (untimely) formal proof of claim. Mortgage holder objected to the debtor’s $1 proof of claim. Equity did not support the debtor’s effort to force the mortgage holder to be treated as a $1 secured claim: “[The debtor] has offered no explanation whatsoever for her delay. In the absence of such an explanation, which would similarly be necessary under Rule 9006(b) to obtain an extension of the claims deadline imposed by Rule 3004, I find that it would be inequitable to apply the informal claims doctrine to treat the Plan as a claim filed by Debtor on Bankers’ behalf.”).

 

24  See § 133.2  Unscheduled Creditors before BAPCPA§ 133.3  Unscheduled Creditors after BAPCPA and § 134.3  Strategic Considerations: When to File Claims for Creditors. See, e.g., In re Moore, 247 B.R. 677, 687–89 (Bankr. W.D. Mich. 2000) (Although Chapter 13 debtors cannot modify plan after confirmation to “add” unscheduled creditors, debtor can move for an extension of time in which to file a proof of claim on behalf of the creditor under Bankruptcy Rule 3004, and in the absence of objection the unscheduled claim would be allowed and paid through the plan. “[T]here is also the possibility that the omitted creditor could still be brought within the [confirmed] plans through the allowance of a protective claim filed by the Debtor. . . . Fed. R. Bankr. P. 3004. . . . On its face, Rule 3004 would appear to preclude the filing of a protective claim beyond 30 days after the time limits set by Rule 3002(c). However, Rule 9006(b) permits enlargement of this time period. . . . A debtor who wishes to include the claim of an omitted creditor through the allowance of a late filed protective claim would begin by filing a motion to enlarge the time period to file the protective claim. . . . The motion would have to state with particularity the grounds for the enlargement. . . . [T]he movant would have to establish not only excusable neglect but also cause in order to prevail . . . . The motion would have to be served upon all parties who might be affected by the inclusion of this late claim, they being the omitted creditor, the creditors already holding allowed claims and the Chapter 13 trustee. . . . [P]arties-in-interest could object to the motion . . . . [T]he Chapter 13 trustee might object if the inclusion of the omitted creditor caused the plan to exceed 60 months. . . . An existing creditor might also object . . . . [T]he existing creditor might . . . prevail if it were to establish that the debtor’s failure to initially list the omitted creditor was not excusable. It might also prevail if it could convince the court that it would have successfully objected to the confirmation of the debtor’s initial plan . . . . The omitted creditor might also object to the protective claim. . . . If the omitted creditor objected, the debtor would have to establish at a minimum that the omission of the creditor was excusable. If the debtor could meet this threshold, then the burden would shift to the creditor to establish that it would be prejudiced by its late inclusion into the plan. . . . [T]he omitted creditor might argue that it would have successfully objected to the confirmation of debtor’s plan had it been given the opportunity to participate in the confirmation process. The omitted creditor might also argue that it incurred attorneys fees and court costs . . . . [T]he omitted creditor might argue that the amount which the debtor has set forth as owing to the creditor in the protective claim is less than what is in fact owed to it.”). But see In re Fugate, 286 B.R. 778, 778–79 (Bankr. N.D. Cal. 2002) (not to be published) (Debtors’ motion to file a late claim on behalf of an unscheduled creditor is denied. “[T]he Fugates seem to presume that if their motion is granted Bessette would suddenly become subject to the terms of their plan, including its 10% dividend to unsecured creditors, even though she never got an opportunity to object to its confirmation. . . . [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.”).

 

25  See § 280.1 [ Secured Claim Holders ] § 132.7  Secured Claim Holders.

 

26  See § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

27  See, e.g, In re Jurado, 318 B.R. 251, 256–57 (Bankr. D.P.R. 2004) (Proof of claim filed by debtor on behalf of car lender in 54th month of 60-month plan is timely because there is no bar date for the filing of proof of a secured claim; however, disbursements will be limited to funds received by the Chapter 13 trustee after the filing of the claim, and trustee need not recover monies paid to other creditors that would have gone to the car lender had an earlier proof of claim been filed. “Although there is no statutory requirement for the filing of a proof of claim to confirm a chapter 13 plan, this court’s Administrative Order 97-03 so requires. The basic reason for the requirement to file a proof of claim for a creditor specifically dealt with in the Chapter 13 Plan is to implement the intent of the plan for the benefit of both the debtor and the particular creditor. . . . In this case, the plan was confirmed even though a claim was not filed by or on behalf of [the car lender], a secured creditor specifically dealt with in the Chapter 13 plan. The creditor did not participate in the distribution of funds, and the debtor is now left with a lien and arrears on a secured claim, the treatment of which was the main reason for the filing of the bankruptcy petition.”).

 

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

 

29  11 U.S.C. § 502(b)(9). See § 276.1 [ Governmental Units ] § 132.3  Governmental Units.

 

30  See § 115.1  Timing of Hearing on Confirmation before BAPCPA and § 115.2  Timing of Hearing on Confirmation after BAPCPA.

 

31  See § 286.1 [ Strategic Considerations: When to File Claims for Creditors ] § 134.3  Strategic Considerations: When to File Claims for Creditors.

 

32  Official Bankruptcy Form 10, discussed in § 131.1  Official Bankruptcy Form 410 and Variations, § 131.2  Official Form 410 after BAPCPA and § 133.4  Amended Claims.

 

33  Amended claims are discussed below in this section and in § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

34  See In re Barton, 359 B.R. 681 (Bankr. N.D. Ill. 2006) (County had adequate notice and opportunity to amend or object to proof of claim filed on its behalf by debtors, and failure to take any action leaves county bound by claim and plan that provided for payment of property taxes without interest.).

 

35  See § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

36  Fed. R. Bankr. P. 3004 advisory committee note.

 

37  Fed. R. Bankr. P. 3004 advisory committee note.

 

38  See § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

39  Delay has been an issue in amended claims cases. See below in this section, and see § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

40  See In re Hart, No. 07-00115, 2008 WL 4998995 (Bankr. D.D.C. Oct. 15, 2008) (unpublished) (Teel) (Amended claim is disallowed when creditor failed to check the box stating claim was an amendment to prior claim.).

 

41  See § 133.4  Amended Claims, § 135.1  Timing, Procedure and Evidence Presumption and § 135.2  Allowance and Objections to Claims: Changes by BAPCPA.

 

42  See § 284.1 [ Amended Claims ] § 133.4  Amended Claims. See, e.g., In re Sacko, 394 B.R. 90, 97 (Bankr. E.D. Pa. 2008) (Amended claim allowed when 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).”).

 

43  See cases discussed in § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

44  The Committee Note to the 1987 amendments stated that “a proof of claim filed by a creditor supersedes a claim filed by the debtor or trustee only if it is timely filed within the 90 days allowed under Rule 3002(c).”

 

45  In re Townsville, 268 B.R. 95, 105 (Bankr. E.D. Pa. 2001) (“Debtors can utilize [Bankruptcy Rule 9006(b)(1)] to seek an extension of the deadline imposed on them by Rule 3004 for filing claims, but creditors who are subject to the time deadline under Rule 3002(c) for filing claims cannot.”); In re Moore, 247 B.R. 677, 689 n.10 (Bankr. W.D. Mich. 2000) (“Although the time within which a debtor may file a protective claim may be enlarged by Rule 9006(b), the reciprocal right of a creditor to file its own superceding proof of claim may not be similarly enlarged.”).

 

46  See In re Townsville, 268 B.R. 95, 107 (Bankr. E.D. Pa. 2001) (Mortgage holder on whose behalf the debtor filed an untimely $1 proof of claim could not file a superseding claim under Bankruptcy Rule 3004 because the claims bar date passed under Bankruptcy Rule 3002. Deadline for filing Rule 3004 claims was February 22, 2001. On March 1, 2001, debtor filed a $1 proof of claim on behalf of the holder of a prepetition foreclosure judgment. Mortgage holder objected to the debtor’s $1 proof of claim. With respect to the debtor’s argument that the mortgage holder could have filed a superseding claim: “[A] review of Rules 3002 and 3004 of the Federal Rules of Bankruptcy Procedure indicates otherwise. According to Rule 3004, in order to file a superseding claim, Bankers would have had to comply with the bar date imposed in accordance with Rule 3002(c) which was January 23, 2001. . . . Since Debtor did not file the Proof of Claim until March 1, 2001, Bankers could not meet the claims deadline imposed by Rule 3002.”); In re Kelley, 259 B.R. 580, 585 (Bankr. E.D. Tex. 2001) (Mortgage holder’s late-filed proof of claim cannot supersede or amend the claim filed by the debtor because of timeliness requirement for a superseding claim in Bankruptcy Rule 3004. In Chapter 13 case filed on January 31, 2000, debtor scheduled Regions Mortgage, Inc., and the plan proposed to pay Regions $43,345 at 9% interest over 60 months. Regions did not timely file a proof of claim and did not object to confirmation. On August 8, 2000, the debtor filed a claim on behalf of Regions in the amount proposed in the plan. The plan was confirmed. On October 4, 2000, Regions filed a claim for $69,499.80 with a preemptive motion to allow its late-filed proof of claim. “Regions cannot utilize the claim which the Debtor filed on its behalf to achieve the allowance of its own claim. . . . While a creditor may supersede any claim filed on its behalf under Rule 3004, that objective can be achieved only through timely and prudent action by that creditor. Rule 3004 specifically states that a creditor’s proof of claim must be timely filed by the established bar date in order to supersede a claim filed on its behalf. Thus, the dilatory nature of Regions’ actions in this case have forfeited any protection which it might have otherwise received under Rule 3004.”); In re Jones, 238 B.R. 338 (Bankr. W.D. Mich. 1999) (IRS’s untimely filed proof of claim is not an amendment of a proof of claim filed on behalf of the IRS by the debtor and cannot supersede the debtor’s claim.); In re Cook, 205 B.R. 617, 622–23 (Bankr. N.D. Ala. 1996) (Proof of claim filed by creditor after bar date in Bankruptcy Rule 3002 cannot be a superseding claim for purposes of Bankruptcy Rule 3004. “A proof of claim filed by a creditor in a Chapter 13 case supersedes a claim filed by a debtor or trustee under Rule 3004 only if it is filed ‘pursuant to Rule 3002.’ . . .  [F]or any proof of claim—whether the claim be secured or unsecured—filed by a creditor to supersede a claim filed by a debtor or trustee pursuant to Rule 3004, the creditor must file the claim within the time deadline imposed by Rule 3002(c). The claim filed by FMCC does not supersede the claim filed on its behalf.”); In re Melton, 194 B.R. 418, 419 (Bankr. E.D. Tex. 1996) (IRS’s proof of claim filed after the bar dates in Bankruptcy Rule 3002 does not supersede the claim filed for the IRS by the debtor under Bankruptcy Rule 3004. Petition was filed on October 5, 1994. On November 18, 1994, debtors filed a proof of claim on behalf of the IRS. Last date to file timely claims was February 8, 1995. On April 3, 1995, IRS filed (untimely) proof of claim. Debtors objected to claim filed by the IRS. “[I]n order for the proof of claim filed by the creditor to supersede the proof filed on the creditor’s behalf by the debtor, the creditor’s proof of claim must be filed ‘pursuant to Rule 3002’ which clearly requires the proof of claim to be filed within 90 days of the first date set for the first meeting of creditors. Therefore, the IRS claim in this case could not supersede the one filed on its behalf by the Debtors.”); In re Hamilton, 179 B.R. 749, 752 (Bankr. S.D. Ga. 1995) (“In order for a creditor’s proof of claim to supersede the debtor’s, the creditor’s proof of claim must be timely filed pursuant to Fed. R. Bankr. P. 3002 or 3003(c).” Distributions to student loan creditors are limited to the amount stated in debtor’s proof of claim because the bar date in Bankruptcy Rule 3002(c) passed and creditor cannot file a superseding proof of claim.); Frascatore v. Secretary of Hous. & Urban Dev. (In re Frascatore), 98 B.R. 710 (Bankr. E.D. Pa. 1989) (Under former Bankruptcy Rule 3004, creditor has a “reasonable time, usually limited to six months after the bar date” in which to file a superseding proof of claim when the debtor has filed a claim on the creditor’s behalf.); In re Hydorn, 94 B.R. 608 (Bankr. W.D. Mo. 1988) (Debtor can file a proof of claim on behalf of a secured claim holder under Bankruptcy Rule 3004. Creditor then can file a superseding proof of claim, but the superseding proof of claim must be filed before the original 90-day bar date passes. If the 90-day bar date in Bankruptcy Rule 3002(c) has expired, the debtor’s claim filed pursuant to Bankruptcy Rule 3004 will control.).

 

47  See § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

48  See above in this section, and see § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

49  In re Hamilton, 179 B.R. 749, 752–56 (Bankr. S.D. Ga. 1995) (Student loan creditor cannot late-file a claim to “amend” or “supersede” proof of claim filed by the debtor under Bankruptcy Rule 3004. August 1 was the deadline for filing proofs of claim. Department of Education had notice but failed to timely file. On August 23, the debtor filed a claim on behalf of the Department. The clerk notified the Department of the filing by the debtor. Department moved to late-file a proof of claim. “Rule 3004 permits a debtor to file a proof of claim on behalf of a creditor in certain circumstances. . . . The Bankruptcy Code also addresses debtor-filed proofs of claim, providing, ‘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.’ . . . In order for a creditor’s proof of claim to supersede the debtor’s, the creditor’s proof of claim must be timely filed pursuant to Fed.R.Bankr.P. 3002 or 3003(c). Fed.R.Bankr.P. 3004. In this case, Movant has failed to file a timely proof of claim capable of superseding Debtor’s proof of claim. . . . In sum, non-filing creditors must accept the treatment provided for their claims by the debtor’s plan unless the creditor was not given proper notice. A non-filing creditor with notice does not lose any rights in bankruptcy where a debtor files a proof of claim on its behalf. Such a creditor does not obtain a right to file an otherwise untimely claim simply because the debtor has provided for the creditor by filing a claim for the creditor in an amount which the creditor contests. The effect of a failure to file a proof of claim is that a creditor’s debt, with notice, may be discharged under the terms provided for by the debtor. The question of whether the debt is discharged is unrelated to the claims allowance process. The ability of a debtor to file a proof of claim for a creditor is merely an accommodation to the debtor. A debtor is under no obligation to file a claim on a creditor’s behalf. Assuming proper notice, the non-filing creditor would be barred from participating in the bankruptcy case and would have to be satisfied with whatever payment the debtor provided unless the creditor could evoke the provisions of the Bankruptcy Rules which allow a late filed proof of claim. To the extent that [United States v. Kolstad (In re Kolstad), 928 F.2d 171 (5th Cir.), reh’g denied, 936 F.2d 571 (5th Cir.), cert. denied, 502 U.S. 958, 112 S. Ct. 419, 116 L. Ed. 2d 439 (1991),] was concerned with equity, the above-cited authority shows that the Court is limited in its ability to allow late proofs of claim on equitable grounds. This Court declines to adopt the rationale proposed by Kolstad, and concludes instead that the only option is to analyze Movant’s motion as a motion to allow a late filed claim. For the reasons stated here, that motion must be denied.”). Accord 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.’”). But see In re Hill, 286 B.R. 612, 617–21 (Bankr. E.D. Pa. 2002) (“[I]n United States v. Kolstad (In re Kolstad), 928 F.2d 171 (5th Cir. 1991), the Fifth Circuit held that a bankruptcy court has discretion to allow a creditor to file an amendment to a timely proof of claim filed on its behalf by a debtor despite the fact that, under Rule 3004, the time period for the creditor to file a proof of claim that would supersede the debtor’s proof of claim has expired. . . . I am not convinced that the Fifth Circuit’s ruling . . . is incorrect. Where a creditor who opts to remain outside the bankruptcy process is subsequently pulled in when the debtor files a proof of claim on its behalf, there must be some flexibility to mitigate the unfairness of binding the creditor to that filed claim because of the passage of the bar date. . . . Matrix did not indicate anywhere on its Proof of Claim that it was an amendment . . . . Matrix failed to introduce any evidence . . . that its Proof of Claim was intended as an amendment . . . . [A]mendments are not automatically allowed . . . . I would refuse to permit Matrix to amend the Debtor’s claim.”); In re Kelley, 259 B.R. 580, 585 (Bankr. E.D. Tex. 2001) (Mortgage holder’s late-filed proof of claim cannot supersede or amend the claim filed by the debtor because of timeliness requirement for a superseding claim in Bankruptcy Rule 3004. “[T]his Court arguably could, pursuant to its equitable power recognized in [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),] construe Regions’ late claim as ‘amending’ rather than ‘superseding’ the claim filed on its behalf by the Debtor. However, Regions has failed to establish any facts which would warrant the exercise of this Court’s equitable power in such a manner.”).

 

50  See above in this section, and see § 284.1 [ Amended Claims ] § 133.4  Amended Claims.

 

51  279 B.R. 859 (Bankr. M.D. Fla. 2002).

 

52  279 B.R. at 863–64.

 

53  See § 133.1  General Rules: No Enlargement or Exceptions, Except . . . for discussion of failure to object to an untimely filed proof of claim; see § 74.3  Acceptance of Plan before BAPCPA and § 74.4  Acceptance of Plan after BAPCPA for discussion of silence as acceptance of a proposed plan; see § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors for discussion of the binding effect of confirmation on a creditor that fails to object to confirmation.

 

54  205 B.R. 617 (Bankr. N.D. Ala. 1996).

 

55  205 B.R. at 623–24.

 

56  See § 287.3 [ Reconsideration of Claims ] § 135.4  Reconsideration of Claims for discussion of reconsideration of claims.

 

57  See Thomas v. United States (In re Thomas), 223 Fed. Appx. 310 (5th Cir. 2007) (Rule 9011(b) sanctions requiring debtor’s attorney to obtain ethics instruction and referral to U.S. attorney and State Bar were appropriate when attorney filed proof of claim on behalf of IRS that knowingly misrepresented amount of claim.).

 

58  238 B.R. 338 (Bankr. W.D. Mich. 1999).

 

59  11 U.S.C. § 1305. See § 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

60  See § 132.9  Postpetition Claims§ 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

61  See, e.g., United States v. Beane (In re Beane), No. 1-96-03487, 2000 WL 33180213, at *1 (Bankr. M.D. Pa. Nov. 29, 2000) (unpublished) (“11 U.S.C. § 1305 provides that a tax creditor, unlike ordinary creditors, may file a proof of claim for a post-petition debt and have it paid through the Plan. The IRS asserts that Section 1305 does not allow a debtor to file said claim on the tax creditor’s behalf. I agree.”); In re Epstein, 200 B.R. 611 (Bankr. S.D. Ohio 1996) (Debtor cannot file a claim for postpetition taxes on behalf of the IRS. Amendment of the schedules does not satisfy § 1305.); In re Smith, 192 B.R. 712 (Bankr. E.D. Tenn. 1996) (Bankruptcy Rule 3004 does not authorize a debtor to file a proof of claim on behalf of a postpetition claim holder); In re Trentham, 145 B.R. 564 (Bankr. E.D. Tenn. 1992) (Debtor has no standing under § 1305 or under the Bankruptcy Rules to file a proof of claim on behalf of a postpetition consumer creditor.); In re Martin, 130 B.R. 349 (Bankr. M.D. Fla. 1991) (Debtor cannot use Bankruptcy Rule 3004 to file a claim on behalf of the IRS for postpetition taxes.); In re Farquhar, 112 B.R. 34 (Bankr. D. Colo. 1989); In re Glover, 107 B.R. 579 (Bankr. S.D. Ohio 1989) (Bankruptcy Rule 3004 does not authorize the debtor to file a claim on behalf of a postpetition claim holder.); In re Roseboro, 77 B.R. 38 (Bankr. W.D.N.C. 1987) (Only the postpetition claim holder can file proof of a postpetition claim.); In re Dickey, 64 B.R. 3 (Bankr. E.D. Va. 1985) (Neither § 1305 nor § 501 permits a Chapter 13 debtor to file a proof of claim for postpetition taxes when the IRS chooses not to file a proof of claim.); In re Pritchett, 55 B.R. 557 (Bankr. W.D. Va. 1985) (Debtor may not file proof of a § 1305 claim on behalf of the holder of such claim.). Contra In re Zook, 144 B.R. 489 (Bankr. D. Idaho 1992) (Debtor can file a claim on behalf of a state for taxes that accrued both before and after the petition. Court rejects state’s argument that § 1305 precludes the debtor from filing a claim for a postpetition tax. “[T]he claim is for postpetition taxes, and is thus authorized as a postpetition claim for treatment in the debtor’s plan under Section 1305(a). [The state] does not dispute the amount of the claim, and shows no prejudice as a result of the debtors’ filing of the claim. The filing of a claim by a debtor for a taxing entity under 11 U.S.C. § 501(c) and F.R.B.P. 3004 is not specifically prohibited by any statute or rule.”).

 

62  11 U.S.C. § 502(i).

 

63  See § 136.2  Taxes before BAPCPA, § 136.3  Taxes after BAPCPA§ 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

64  There is also the possibility that taxes “arising” after the petition are administrative expenses with completely different rules for “requesting,” allowance and treatment through a confirmed plan. See § 133.5  Tax Claim Exception after BAPCPA, § 136.2  Taxes before BAPCPA, § 136.3  Taxes after BAPCPA§ 132.6  Priority Claims, Including Requests for Payment of Administrative Expenses, § 136.14  Miscellaneous Administrative Expenses and Priority Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

65  11 U.S.C. § 507(a)(8)(C). See also § 136.2  Taxes before BAPCPA§ 136.3  Taxes after BAPCPA,§ 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

66  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

67  11 U.S.C. § 502(b)(9), discussed in § 132.3  Governmental Units, § 132.9  Postpetition Claims, § 133.5  Tax Claim Exception after BAPCPA, § 136.2  Taxes before BAPCPA, § 136.3  Taxes after BAPCPA, § 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

68  270 B.R. 203 (Bankr. S.D. Tex. 2001).

 

69  270 B.R. at 206–09.

 

70  See § 132.9  Postpetition Claims, § 136.2  Taxes before BAPCPA§ 136.3  Taxes after BAPCPA§ 137.1  Postpetition Claims before BAPCPA and § 137.2  Postpetition Claims after BAPCPA.

 

71  162 B.R. 1014 (Bankr. N.D. Ill. 1994).

 

72  162 B.R. at 1021. Accord In re Melton, 194 B.R. 418, 419 (Bankr. E.D. Tex. 1996) (No authority exists in Bankruptcy Rule 3006 for a debtor to withdraw a proof of claim filed on behalf of a creditor under Bankruptcy Rule 3004; IRS’s late-filed proof of claim does not supersede the claim filed for the IRS by the debtor. Petition was filed on October 5, 1994. On November 18, 1994, debtors filed a proof of claim on behalf of the IRS. Last date to file timely claims was February 8, 1995. On March 8, 1995, debtors withdrew claim they filed on behalf of the IRS. On April 3, 1995, IRS filed (untimely) proof of claim in approximately the same amount as the claim filed but withdrawn by the debtors. Debtors objected to claim filed by the IRS. “The IRS correctly points out that Federal Rule of Bankruptcy Procedure 3006 allows a creditor to withdraw a claim by filing a notice of withdrawal. Although Rule 3004 allows a Debtor to file a claim on behalf of a creditor, there is no corresponding provision in Rule 3006 which would allow the Debtor to withdraw that claim once it has been filed. . . . [I]n order for the proof of claim filed by the creditor to supersede the proof filed on the creditor’s behalf by the debtor, the creditor’s proof of claim must be filed ‘pursuant to Rule 3002’ which clearly requires the proof of claim to be filed within 90 days of the first date set for the first meeting of creditors. Therefore, the IRS claim in this case could not supersede the one filed on its behalf by the Debtors regardless of whether the earlier claim was withdrawn or not.”).

 

73  See § 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 Hodges, 362 B.R. 304 (Bankr. N.D. Ill. 2007) (Failure to exhaust administrative remedies bars debtor’s objection to proof of claim that debtor filed on behalf of Social Security Administration for overpayment of disability benefits.).