§ 134.2     Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 134.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

By now you are ready for some relief from BAPCPA. This section is not about BAPCPA.

[2]

In the regular course of its business, the Advisory Committee on Bankruptcy Rules recommended amending Bankruptcy Rule 3004 to correct a long-standing inconsistency with § 501(c) of the Bankruptcy Code.1 As luck would have it, the rewritten version of Bankruptcy Rule 3004 became effective on December 1, 2005. The hoopla over BAPCPA quite effectively obscured the changes to Bankruptcy Rule 3004.

[3]

Chapter 13 practitioners need to know about the changes to Bankruptcy Rule 3004 because the filing of proofs of claim by the debtor or trustee is more common in Chapter 13 cases than in any other chapter. Under the prior rule, the debtor or trustee in a Chapter 13 case could file a proof of claim on behalf of a (nongovernmental) creditor at any time between the first date set for the meeting of creditors and 120 days after that date, notwithstanding that the creditor could file a timely proof of claim on its own behalf during all but the last 30 days of that period. Section 501(c) of the Code, in contrast, has always provided that the debtor or the trustee may file a proof of claim only “if a creditor does not timely file a proof of such creditor’s claim.”2 For many years, there was an inconsistency between § 501(c) and Bankruptcy Rule 3004 in that the debtor or the trustee was permitted by the Rule to file a proof of claim on behalf of a creditor before it could be known whether the creditor had failed to timely file a proof of its own claim.

[4]

Bankruptcy Rule 3004 has been rewritten to clarify that the debtor or the trustee may file a proof of claim on behalf of a creditor only after the creditor fails to timely file a proof of claim under Bankruptcy Rule 3002(c). The debtor or trustee has 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c) within which to file a claim on behalf of the creditor that has not filed its own claim. The debtor or the trustee in a Chapter 13 case can no longer file a proof of claim on behalf of a creditor immediately after the first date set for the meeting of creditors but must wait until the normal period for timely filing a proof of claim has expired under Bankruptcy Rule 3002(c), and then the debtor or the trustee has a 30-day window in which to file a claim on behalf of the creditor under new Bankruptcy Rule 3004.

[5]

Under Bankruptcy Rule 3002(c), as amended by Interim Rule 3002(c), for nongovernmental creditors, the deadline for filing a timely proof of claim is unchanged: 90 days after the first date set for the meeting of creditors. For a governmental unit, timely is 180 days after the petition with a new exception that a proof of claim resulting from a tax return filed under § 13083 is timely filed 180 days after the petition or 60 days after the date of the filing of the tax return, whichever is later.4

[6]

The good news is that Bankruptcy Rule 3004, as amended in 2005, is now consistent with § 501(c) of the Code. The bad news is that Chapter 13 debtors and trustees who want to file a proof of claim on behalf of a creditor have only a narrow 30-day window in which to accomplish that task under new Bankruptcy Rule 3004. That 30-day window for nongovernmental creditors is open between 90 and 120 days after the first date set for the meeting of creditors. For a governmental creditor, the window is between 180 days and 210 days after the petition. For a governmental unit’s claim resulting from a tax return filed after the petition under § 1308, the window will be either the 30 days between 180 days and 210 days after the petition or the 30 days beginning 60 days after the date of the filing of the tax return under § 1308. This last window may be difficult to pinpoint because the exact date of the filing of a § 1308 tax return may only be known by the taxing authority.

[7]

The 2005 amendments to Bankruptcy Rule 3004 also eliminated the possibility that a creditor could file a “superseding” proof of claim under Bankruptcy Rule 3002 after the debtor or trustee filed a claim on behalf of the creditor. This amendment was also necessary because § 501(c) of the Code precluded the possibility that a creditor could file a timely proof of claim that would supersede a claim filed by the debtor or the trustee given that the debtor or the trustee could only file a claim after the creditor failed to timely file its own claim. The notion of a creditor’s superseding claim under Bankruptcy 3004 was always an oxymoron and now is eliminated altogether by the 2005 amendments to Bankruptcy Rule 3004. Left open is the question whether a creditor can “amend” a proof of claim filed by the debtor or the trustee under Bankruptcy Rule 3004 when the creditor’s amendment is filed after the deadline for the timely filing of claims under Bankruptcy Rule 3002(c).5


 

1  See § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005.

 

2  11 U.S.C. § 501(c) (emphasis added), discussed in § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005.

 

3  See 11 U.S.C. § 1308, discussed in § 391.1 [ Tax Return Duties One Day before First Scheduled Meeting of Creditors ] § 42.6  Tax Return Duties One Day before First Scheduled Meeting of Creditors.

 

4  Interim Bankr. R. 3002(c)(1), discussed in § 508.1 [ New Timing Issues ] § 133.5  Tax Claim Exception after BAPCPA.

 

5  See §§ 284.1 [ Amended Claims ] § 133.4  Amended Claims and 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005.