§ 134.3     Strategic Considerations: When to File Claims for Creditors
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 134.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The practice of filing proofs of claim on behalf of creditors in Chapter 13 cases is routine in some districts and unheard of in others. For example, in jurisdictions where it is common for Chapter 13 debtors to make payments on home mortgages through the trustee,1 to ensure that mortgage payments begin immediately upon confirmation, the debtor or the trustee may file a proof of claim on behalf of the mortgage holder. This makes a lot of sense—the debtor desires to keep the home, the lien may survive even if the creditor fails to file a proof of claim2 and a delay in beginning payments may provoke a motion for relief from the stay or make curing default more difficult.3

[2]

In some jurisdictions, it is common for the debtor or the Chapter 13 trustee to file proofs of claim on behalf of priority claim holders—the IRS, for example. This practice is questionable except, perhaps, with respect to priority claims that are also nondischargeable.4

[3]

In Chapter 13 cases filed before October 22, 1994, the claims entitled to priority under (former) § 507(a) were generally dischargeable upon the completion of payments under a plan.5 In such cases, if a priority claim holder failed to file a proof of claim, the claim would be discharged without payment upon completion of payments to other creditors under the plan.6 If the debtor filed a proof of claim on behalf of a priority claimant, the debtor must pay the allowed priority claim through the plan to accomplish discharge. If the debtor had no special need to pay the priority claim,7 the debtor realized no obvious advantage by filing a proof of claim for a priority debt that would otherwise be dischargeable.

[4]

Beginning with cases filed after October 22, 1994, Congress has repeatedly enlarged the class of debts that are both priority under § 5078 and nondischargeable under § 1328.9 For example, in 1994, Congress gave the seventh priority to debts for alimony, maintenance or support described in (former) § 507(a)(7).10 In Chapter 13 cases filed after October 22, 1994, alimony, maintenance and support debts described in (former) § 507(a)(7) were priority claims entitled to full payment under § 1322(a)(2)11 and were nondischargeable upon completion of payments under the plan.12

[5]

In 2005, the priority for alimony, maintenance and support was both raised and enlarged by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).13 Claims for alimony, maintenance and support were renamed “domestic support obligations,” and the content of this class was enlarged by a new definition.14 The priorities in § 507 were rearranged by BAPCPA, raising the priority of domestic support obligations to first position.15 The bulked-up domestic support obligation that resulted is both nondischargeable and entitled to priority in all Chapter 13 cases.

[6]

Alimony and child support claimants—now domestic support obligation claimants—are notoriously poor at timely filing proofs of claim in Chapter 13 cases. Without the filing of a proof of claim, payments will not begin and any delinquency will grow, increasing the likelihood that the former spouse will seek contempt or other action against the debtor in a domestic relations forum.16 The Chapter 13 debtor is best positioned to defend an ex-spouse’s request for relief from the stay and is best positioned to defend a contempt action in state court if a proof of claim is filed by the debtor in the Chapter 13 case and payments to the former spouse have commenced. Chapter 13 debtors file proofs of claim on behalf of support creditors to ensure payment through the plan and to avoid a large and growing nondischargeable support obligation remaining at the completion of payments to other creditors.

[7]

There are other priority claims that are also nondischargeable with respect to which there are incentives for Chapter 13 debtors to file proofs of claim on behalf of creditors that fail to do so for themselves. For example, in cases filed on or after October 17, 2005, withholding taxes described in § 507(a)(8)(C) are entitled to priority and are also nondischargeable at the completion of payments in a Chapter 13 case.17 Similarly, BAPCPA created a tenth priority for claims for death or personal injury resulting from the operation of a motor vehicle or vessel while unlawfully intoxicated that overlaps the debt described in § 523(a)(9) that is nondischargeable in a Chapter 13 case under § 1328(a)(2).18 A debtor with a priority tax that will be nondischargeable and a debtor with a § 507(a)(10) debt resulting from driving while intoxicated will have to provide full payment to accomplish confirmation and will often want to file a claim on behalf of the creditor to minimize the nondischargeable debt that will survive completion of payments.

[8]

There is also an ever-increasing array of debts that are nondischargeable in a Chapter 13 case but not entitled to priority with respect to which many debtors will want to ensure payment through the plan by filing proofs of claim even when the creditor does not. For example, debtors who need to manage a criminal restitution order through the Chapter 13 plan19 are best served to file a proof of claim on behalf of the victim to ensure that payments commence immediately through the plan. Filing a proof of claim to start payments to the victim may not stay revocation of probation,20 but it gives debtor’s counsel some ammunition in negotiations with the prosecutor.

[9]

In cases filed on or after October 17, 2005, nondischargeable debts at the completion of payments through a Chapter 13 plan include debts for false representations and fraud under § 523(a)(2),21 debts for fraud and defalcation described in § 523(a)(4)22 and debts for willful or malicious personal injury or death described in § 1328(a)(4).23 These claims are excepted from discharge at the completion of payments but are not entitled to priority under § 507. Nonetheless, debtors will often wish to ensure payment of these nondischargeable claims to the extent possible through the confirmed plan, and filing proofs of claim on behalf of the holders of these nondischargeable debts is prerequisite to distributions under any confirmed plan.

[10]

Detailed elsewhere,24 after the BAPCPA amendments, there are taxes that are priority debts under § 507(a)(8) that are dischargeable at the completion of payments in a Chapter 13 case, there are taxes that are nondischargeable but not entitled to priority and there are taxes that are both priority and nondischargeable. Priority status alone is not a compelling reason for the debtor to consider filing a proof of claim on behalf of the taxing authority. Nondischargeability is perhaps more compelling. Because the Chapter 13 plan must propose to pay all priority debts in full, a tax debt that is both priority and nondischargeable is perhaps the highest-category candidate for the debtor to consider filing a claim on behalf of the taxing authority.

[11]

Student loans present similar strategic considerations. Absent proof of “undue hardship,” most student loans are nondischargeable in Chapter 13 cases.25 Most student loans accrue interest, and by the end of a three- to five-year Chapter 13 plan, a student loan with accumulated interest becomes a large nondischargeable debt if not paid through the plan. Student lenders are notoriously inattentive to the filing of proofs of claim in Chapter 13 cases. Typically it will be in the debtor’s best interest to file a proof of claim on behalf of a student loan creditor to ensure that payments are made through the plan and to minimize the nondischargeable debt that survives completion of payments. It has been held that filing a claim on behalf of a student loan creditor will not eliminate the nondischargeable debt if the claim is not paid in full with interest through the plan.26 But filing a claim on behalf of the student loan creditor will permit the student loan to share in distributions, which will reduce the amount of any claim that survives discharge.

[12]

Debtors’ lawyers have been heard to argue that it is good practice to file proofs of claim on behalf of the IRS and other priority claim holders as a hedge against the debtor’s failure to complete payments under the plan. The theory seems to be that a priority claimant will often receive distributions under the plan in advance of payments to nonpriority unsecured claim holders.27 If the debtor fails to complete payments under the plan and the case is converted or dismissed, the priority claimant will have received whatever first distributions were available, and the debtor will be that much better off in later dealings with the priority creditor.

[13]

Planning in advance for the failure of the Chapter 13 plan is an odd strategy. And the logic of this approach falls apart altogether if the priority debt is not also nondischargeable. Instead, the debtor should wait 90 days after the first date set for the meeting of creditors (or 180 days after the filing of the petition, with respect to claims of governmental units)28 to see whether the priority claim holder files its own proof of claim. If the debt is nondischargeable or if the debtor has some other special need to pay the priority claim holder, the debtor then has 30 days in which to file a proof of claim on behalf of the creditor under Bankruptcy Rule 3004.29 Otherwise, the debtor should not file a claim for the priority creditor, and the claim will be discharged without payment upon completion of payments to other creditors.

[14]

This strategy is illustrated by comparing In re Jukel30 and Tepper v. Burnham (In re Tepper).31 In Jukel, the IRS filed a proof of claim for some taxes but neglected to file a claim for IRC § 6672 responsible person liability of the debtor for withholding taxes not remitted by the debtor’s corporation. In a misguided effort to protect the corporation from collection, the debtor raised the possibility of filing a claim on behalf of the IRS for the § 6672 taxes. The bankruptcy court noted that Bankruptcy Rule 9006(b)(1) would permit enlargement of the time for the debtor to file a proof of claim on behalf of the IRS, notwithstanding that the period specified in Bankruptcy Rule 3004 had already expired.32 But the bankruptcy court questioned why the debtor would want to do so: if neither the IRS nor the debtor filed a proof of claim for the § 6672 tax liability, those taxes “will be discharged upon successful completion of her Chapter 13 plan.”33 The debtor in Jukel achieved her best possible position by doing nothing in the Chapter 13 case. Filing a claim on behalf of the IRS would have the perverse effect of converting an otherwise dischargeable debt into a claim that must be paid in full through the Chapter 13 plan because of § 1322(a)(2).34

[15]

Tepper is an example of a Chapter 13 debtor with a good reason to file a claim on behalf of a taxing authority.35 The debtor in Tepper scheduled ad valorem taxes that were secured by statutory liens. The taxing authority failed to file a timely proof of claim. Had the debtor done nothing and completed payments under the plan, the taxes would have been discharged as a personal liability of the debtor. However, because of Southtrust Bank of Alabama v. Thomas (In re Thomas),36 the taxing authority’s lien would have survived discharge.37 To avoid this outcome, the debtor filed $100 proofs of claim on behalf of the taxing authority and modified the plan to pay the $100 claims in full satisfaction of the taxing authority’s lien. The taxing authority failed (twice again) to object to either the debtor’s proofs of claim or the modified plan. Mission accomplished: the debtor paid the $100 claims through the plan and discharged the taxing authority’s liens—all because the debtor filed (untimely) claims for the taxing authority that were allowed and paid without objection.

[16]

The debtor might be tempted to file a proof of claim on behalf of a creditor when there is a codebtor to protect. Section 1301 protects some codebtors from collection efforts during the Chapter 13 case.38 The creditor is entitled to relief from the codebtor stay to the extent the plan does not propose to pay the codebtor claim.39 Nothing in § 1301 relieves the codebtor from eventual liability for any portion of the claim that is not paid by the debtor through the plan. Thus, even though a codebtor claim may be dischargeable with respect to the debtor without regard to whether the claim is actually paid through the Chapter 13 plan, such a claim is not dischargeable with respect to the codebtor. The filing of a proof for the codebtor claim ensures that the claim is actually paid (not just proposed to be paid) through the plan.

[17]

Filing proofs of claim on behalf of secured claim holders can be a necessary strategy in Chapter 13 cases. For example, it has been held by the U.S. Court of Appeals for the Eleventh Circuit that secured claim holders need not file proofs of claim in Chapter 13 cases; the lien of a secured claim holder that fails to timely file a proof of claim is not affected by confirmation; and after confirmation, the creditor is entitled to relief from the stay.40 In the Eleventh Circuit, at least, it may be imperative for Chapter 13 debtors to file proofs of claim on behalf of secured claim holders, else management of secured claims through the plan becomes impossible.

[18]

There are (too) many reported decisions limiting the binding, vesting and free and clear effects of confirmation under § 1327 based on whether the claims allowance process has been engaged with respect to a lienholder.41 The filing of a proof of claim plays an ambiguous role in this debate. “Participation” in the claims allowance process by filing a proof of claim is held by some courts to trigger consequences for the secured claim holder.42 Other courts find that an unfiled secured claim holder has not participated in the Chapter 13 case, and the lien survives unaffected by the plan unless the debtor files an adversary proceeding or otherwise acts to engage the claims allowance process.43

[19]

Filing a claim on behalf of a secured creditor is one sure way to start the claims allowance process. Bankruptcy Rule 3004 is not dependent on the choices or mistakes made by lienholders. The Chapter 13 debtor can file a proof of claim on behalf of any secured claim holder. This may be a good strategy whenever the plan adversely affects the lienholder’s rights and the debtor is in a jurisdiction that requires something more than confirmation of a plan to guarantee the effects described in § 1327.

[20]

Filing a proof of claim on behalf of the secured claim holder is a step toward positioning the debtor to pay the secured claim through the plan and retire the lien without litigating relief from the stay, the effects of confirmation or discharge of the underlying lien.44 In a jurisdiction that requires secured claim holders to file timely proofs of claim consistent with Bankruptcy Rule 3002,45 confirmation of a plan that provides for the lien may preclude the lienholder that has failed to timely file a proof of claim from realizing upon its collateral or being granted relief from the stay.46 In such a jurisdiction, it would not necessarily make sense for the debtor to file a proof of claim on behalf of a lienholder that has failed to timely file proof of its own claim because the debtor will be allowed to keep collateral that is subject to the lien and the creditor will not be entitled to distributions through the plan.

[21]

Most Chapter 13 debtors want to keep the collateral that is subject to liens and are willing to pay the fair value of that collateral through the plan consistent with § 1325(a)(5).47 Using Bankruptcy Rule 3004 to file a proof of claim on behalf of a secured creditor with a lien on collateral that the debtor wants to keep is in this sense substitution of payments through the plan for the costs of litigating the effects of confirmation on the secured claim holder that has failed to timely file proof of its own claim. A few decisions characterize the use of Bankruptcy Rule 3004 as a duty: debtors and their attorneys are expected to check the claim register and to file claims on behalf of critical creditors that fail to timely file claims.48

[22]

In re Hill49 illustrates how Bankruptcy Rule 3004 empowers the debtor to manage a less than diligent secured claim holder. The confirmed plan in Hill proposed to pay a mortgage holder (Matrix) in full. Matrix did not timely file a proof of claim. The debtor filed a claim on behalf of Matrix for $88,000, showing the arrearage as $4,000. Three months after the claims bar date, Matrix filed a tardy proof of claim for $105,692.37, stating the arrearage as $16,853.33. The bankruptcy court sustained the debtor’s objection, holding that Matrix’s untimely proof of claim could not supersede50 the claim filed by the debtor under the former version of Bankruptcy Rule 3004:

[I]f the creditor (on whose behalf the debtor filed a claim) thereafter files its own proof of claim “pursuant to Rule 3002,” then the creditor’s claim will “supersede the proof filed by the debtor[.]” . . . Courts have held that a claim filed “pursuant to Rule 3002” must be filed by the time deadline imposed by subsection (c) thereof. . . . If a creditor failed to timely file its proof of claim under Rule 3002(c), then the “debtor’s claim filed pursuant to Bankruptcy Rule 3004 will stand.” . . . Matrix failed to file a proof of claim capable of superseding the Debtor’s proof of claim.51
[23]

The filing of claims by the debtor or the trustee can create traps for the secured claim holder. Imagine that the debtor files a proof of claim on behalf of a nongovernmental secured claim holder 91 days after the first date set for the meeting of creditors. There is no provision of Bankruptcy Rule 3004 that would permit the secured claim holder to file a timely proof of claim in response.52 Is the secured claim holder stuck with whatever amount the debtor files as the secured claim? Absent objection to the claim, or an allowed amended claim by the creditor,53 the answer is almost certainly yes.54 What if the debtor waits 121 days after the first date set for the meeting of creditors and then files a proof of claim on behalf of a nongovernmental secured claim holder that has failed to file? This proof of claim would be untimely under Bankruptcy Rule 3004.55 Can the debtor object to the proof of claim and defeat allowance of the secured claim under § 502(b)(9)?56

[24]

This question almost played out in In re Townsville.57 The filing deadline for purposes of Bankruptcy Rule 3004 was February 22, 2001. On March 1, 2001, the debtor filed a $1 proof of claim on behalf of a mortgage holder with a prepetition foreclosure judgment for $25,398.09. The mortgage holder objected to the debtor’s claim. The debtor conceded that the proof of claim was untimely but argued that the Chapter 13 plan was an “informal claim”58 that could be amended by the (untimely) claim filed by the debtor. The bankruptcy court held that the plan could not function as an amendable informal claim.

[25]

Noting that the debtor chose not to seek an extension of the 30-day deadline in Rule 3004 for filing claims on behalf of the mortgage holder,59 the court then analyzed the debtor’s good faith in filing an untimely claim. By filing after the 30-day deadline in Bankruptcy Rule 3004, the debtor precluded the mortgage holder from filing a superseding claim under the former version of Bankruptcy Rule 3004.60 On these facts, the bankruptcy court found no good-faith basis for limiting the mortgage holder’s claim to $1:

Debtor is seeking, by filing the Proof of Claim and seeking to have the Plan treated as an informal proof of claim, to do an end run around Bankers and force it to be treated as a secured claimant with a mere $1.00 claim. I view this strategy as misguided and not deserving of the protection which equity can provide. . . . [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. . . . Bankers’ Claim Objection shall be granted and the Proof of Claim shall be stricken.61
[26]

Assuming a jurisdiction that applies the filing deadlines in Bankruptcy Rule 3002(c) to secured creditors,62 what becomes of the lien rights of a secured claim holder on whose behalf an untimely proof of claim has been filed by the debtor or the trustee? If the court sustains an objection to the untimely proof of claim, the secured claim holder will not be entitled to distributions under the plan.63 11 U.S.C. § 506(d) provides for the voiding of liens “to the extent that a lien secures a claim against the debtor that is not an allowed secured claim . . . unless . . . (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under § 501 of this title.” After the 1994 amendments, it is beyond dispute that the consequence of the failure to timely file a proof of claim is disallowance under § 502(b)(9).64 The conditions for voiding the secured claim holder’s lien under § 506(d) are present when an untimely proof of claim is filed on behalf of the lienholder and any party in interest successfully objects to that claim.65 In that circumstance, the secured claim holder’s untimely claim is disallowed, not because of “the failure of any entity to file a proof of such claim” but because an untimely proof of claim was filed by the debtor or the trustee.

[27]

There could be some uncertainty about the application of § 506(d) in Chapter 13 cases after the Supreme Court’s decision in Dewsnup v. Timm.66 Prior to Dewsnup, one reported decision recognized that when the debtor filed a proof of claim on behalf of a secured claim holder, objected to that proof of claim and then filed an adversary proceeding under § 506(d), the creditor’s lien was in jeopardy.67 Courts have recognized after Dewsnup that the exception in § 506(d)(2) to the lien-voiding effect is not available to protect a lien when the debtor files a proof of claim on behalf of the lienholder.68

[28]

Without regard to § 506(d), the lienholder with an untimely claim filed by the debtor or trustee is trapped in the Chapter 13 case without immediate recourse against its collateral. The secured claim holder that disabled itself from receiving distributions under the plan by failing to timely file a proof of claim and on whose behalf an untimely proof of claim was filed will be hard pressed to convince the bankruptcy court that it should be relieved of its self-inflicted injuries by relief from the stay.69

[29]

And other creditors have incentives to object to allowance of the untimely claim filed by the debtor or trustee and to any request for relief from the stay by the creditor. Disallowing the untimely claim may increase distributions to other creditors by freeing up money that would have gone to the disallowed claim under the plan. Especially when the claim is secured by a car or other property necessary to the debtor’s performance of the plan, opposition by other creditors to stay relief makes sense.

[30]

Another area in which Bankruptcy Rule 3004 may be of much use to debtors is managing unscheduled creditors. It is a common problem in Chapter 13 cases that debtors fail to schedule all of their debts at the beginning of the case.70 Sometimes the debtor remembers the debt or the unscheduled creditor discovers the Chapter 13 case before the deadline for timely filing proofs of claim in Bankruptcy Rule 3002(c). Then, the creditor or the debtor can timely file a proof of claim, and the situation is salvaged by paying the claim through the plan along with other claims of the same class.

[31]

But when the unscheduled creditor is discovered after the bar date for filing proofs of claim, neither the Code nor the Rules provide much guidance for management of the debt. Section 502(b)(9) seems to absolutely bar the allowance of an untimely filed claim if the debtor, the trustee or a creditor objects.71 An unscheduled creditor might file an untimely claim, and if no one objects, the claim will be allowed and paid along with other creditors. Upon objection, however, there is no provision of the Code or Bankruptcy Rule 3002(c) to rescue the unscheduled creditor from the 90-day and 180-day deadlines for timely filing.72

[32]

But Bankruptcy Rule 3004 is different. Mentioned above,73 the 30-day time period within which the debtor or the trustee can file a proof of claim on behalf of a creditor under Bankruptcy Rule 3004 can be extended under Bankruptcy Rule 9006, even after the original 30-day period has expired. When an unscheduled creditor is discovered after the 90-day or 180-day periods in Bankruptcy Rule 3002(c), Bankruptcy Rule 3004 may provide a method for the filing of a claim on behalf of the unscheduled creditor that would be allowable and thus payable through the Chapter 13 plan.74

[33]

The debtor would first make a motion under Bankruptcy Rule 9006 to extend the time for filing a proof of claim on behalf of the unscheduled creditor under Bankruptcy Rule 3004. The debtor would have to show cause and excusable neglect.75 The debtor should explain the need for allowing the unscheduled debt and will have to offer an adequate excuse for the failure to schedule the debt or to discover the debt in time to timely file a proof of claim on behalf of the creditor. If both burdens are carried, the bankruptcy court has discretion to allow the debtor (or the trustee) to file a claim on behalf of the unscheduled creditor.

[34]

If the unscheduled creditor is awake and if the treatment of the claim by the plan is not favorable, the debtor will not always succeed by filing a proof of claim on behalf of an unscheduled creditor. For example, in In re Fugate,76 the confirmed plan paid a 10 percent dividend to unsecured creditors. After the claims bar date, the debtors moved to file a late claim on behalf of an unscheduled creditor. The bankruptcy court denied the debtors’ motion, basically because it just wasn’t fair:

[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. The court agrees that this result is justified “as a punishment for a fundamental bankruptcy sin, failing to list all creditors which are known or should have been known to the debtor.”77
[35]

Reading Fugate and Tepper78 raises ticklish questions for debtors’ counsel. When you represent the debtor and discover an unscheduled creditor after the claims bar date, should you move for enlargement of the time to file a claim on behalf of the creditor or just file the claim and hope that no one is awake? As Tepper demonstrates, even an untimely proof of claim filed by the debtor on behalf of a creditor is allowed in the absence of objection. Once allowed, all of the usual consequences of filing a proof of claim apply—including discharge of the debt without regard to whether the debtor’s proof of claim was accurate.79 As the student loan cases prove,80 if no one is awake, things happen to creditors in Chapter 13 cases that could be prevented by timely objection. But there are significant considerations when debtor’s counsel knows that the outcome of a filing strategy is “illegal” or “inconsistent with the Code.”81

[36]

Perhaps the filing of a proof of claim on behalf of a creditor that has failed to timely file its own claim is less burdened with ethical considerations. Given that the creditor cannot have its own allowable claim, filing a claim on behalf of the creditor in any amount entitles the creditor to distributions that it would not otherwise receive. But filing a claim that is knowingly false is almost certain to have a bad outcome.82 From the debtor’s standpoint, some distribution to certain kinds of creditors is better than litigating the consequences of no claim at all. Arguably, if the period for timely filing a claim on behalf of a creditor has expired, debtor’s counsel should first file a motion under Bankruptcy Rule 9006 to enlarge the time in Bankruptcy Rule 3004. This extra step probably increases the risk of objection from the trustee or the target creditor.

[37]

In the same sense that creditors can rarely use the claims allowance process to repair the failure to object to a damaging plan,83 Chapter 13 debtors cannot use Bankruptcy Rule 3004 to modify the rights of creditors that are protected by other provisions of the Bankruptcy Code. For example, in In re Pittman,84 the debtor exercised the purchase option in a car lease before the Chapter 13 petition but was unable to pay the lump sum required by the contract. The Chapter 13 plan proposed to convert the car lease into a secured claim.85 As part of this strategy, the debtor filed a proof of claim on behalf of the car lessor as if the lessor was a secured creditor. The lessor objected, and the bankruptcy court slammed the debtor’s effort:

Debtor’s filing of a secured claim on behalf of GE does not unilaterally transform GE from a lessor into a secured claimant. Because GE is a lessor rather than a secured claimant, § 1322(b)(2) does not permit Debtor to modify GE’s rights, including the right to receive a lump sum payment for the vehicle’s purchase price.86

 

1  See § 53.10  Make Payments to Creditors Unless Plan or Confirmation Order Provides Otherwise, § 54.6  Compensation on Direct Payments by Debtor, § 74.8  Direct Payment of Secured Claims by Debtor before BAPCPA, § 74.9  Direct Payment of Secured Debt after BAPCPA, § 85.6  Direct Payment of Mortgage or Payment by Trustee and § 89.1  Direct Payments by Debtor.

 

2  See discussion of limitations on effects of confirmation beginning at § 121.1  Overview.

 

3  See §§ 131.1 [ Postpetition Defaults ] § 82.2  Postpetition Defaults and 244.1 [ Postconfirmation Default and Relief from the Stay ] § 124.4  Postconfirmation Default and Relief from the Stay.

 

4  See below in this section, and see discussion of nondischargeable claims beginning at § 88.1  In General and § 158.1  Alimony, Maintenance or Support, § 158.7  Long-Term Debts, § 159.1  Taxes, § 159.5  Domestic Support Obligations: § 523(a)(5) and § 159.9  Chapter 7 Trustee Compensation: § 1326(d).

 

5  See § 73.2  What Claims Are Priority Claims?§ 157.1  Broadest Discharge Available and discussion of treatment of priority claims beginning at § 136.1  Treatment of Priority Claims

 

6  See § 344.1 [ Broadest Discharge Available ] § 157.1  Broadest Discharge Available.

 

7  For example, to protect a codebtor, discussed below in this section.

 

8  See §§ 99.1 [ What Claims Are Priority Claims? ] § 73.2  What Claims Are Priority Claims? and 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA.

 

9  See § 157.2  BAPCPA Shrank the Discharge. See also discussions of debts nondischargeable after completion of payments beginning at § 158.1  Alimony, Maintenance or Support and § 159.1  Taxes.

 

10  11 U.S.C. § 507(a)(7), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304, 108 Stat. 4106 (1994). See § 73.2  What Claims Are Priority Claims?§ 73.3  Priority Claims Added or Changed by BAPCPA, § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994 and § 136.21  Domestic Support Obligations after BAPCPA.

 

11  See 11 U.S.C. § 1322(a)(2), discussed in §§ 98.1 [ Plan Must Provide Full Payment ] § 73.1  Plan Must Provide Full Payment and 441.1 [ New and Changed Treatment of Priority Claims ] § 73.6  Treatment of Priority Claims Changed by BAPCPA.

 

12  See § 73.1  Plan Must Provide Full Payment, § 73.2  What Claims Are Priority Claims?, § 113.3  Domestic Support Obligations Must Be Current§ 136.1  Treatment of Priority Claims, § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994, § 158.1  Alimony, Maintenance or Support, § 136.21  Domestic Support Obligations after BAPCPA and § 159.5  Domestic Support Obligations: § 523(a)(5).

 

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

 

14  See 11 U.S.C. § 101(14A), discussed in §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA, 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA and 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

15  See 11 U.S.C. § 507(a)(1), discussed in §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA, 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA and 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

16  Relief from the stay to pursue alimony or support collection is discussed in §§ 69.1 [ Alimony and Support Exception ] § 58.5  Alimony and Support Exception and 246.1 [ Alimony and Support Collection after Confirmation ] § 124.6  Alimony and Support Collection after Confirmation.

 

17  See 11 U.S.C. § 1328(a)(2), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in § 548.1 [ Taxes ] § 159.1  Taxes.

 

18  See 11 U.S.C. §§ 507(a)(10), 523(a)(9) and 1328(a)(2), discussed in §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA, 522.1 [ The New DWI Priority ] § 136.22  The Driving or Boating while Intoxicated Priority after BAPCPA and 555.1 [ Boating or Flying while Intoxicated: § 523(a)(9) ] § 159.8  Boating or Flying while Intoxicated: § 523(a)(9).

 

19  See §§ 70.1 [ Criminal Action or Proceeding Exception ] § 58.7  Criminal Action or Proceeding Exception, 154.1 [ Restitution, Fines and Other Criminal Problems ] § 88.7  Restitution, Fines and Other Criminal Problems, 184.1 [ Criminal Misconduct ] § 106.2  Criminal Misconduct and 348.1 [ Criminal Restitution and Criminal Fines ] § 158.4  Criminal Restitution and Criminal Fines.

 

20  See § 70.1 [ Criminal Action or Proceeding Exception ] § 58.7  Criminal Action or Proceeding Exception.

 

21  See 11 U.S.C. § 1328(a)(2), discussed in § 549.1 [ False Representations and Fraud: § 523(a)(2) ] § 159.2  False Representations and Fraud: § 523(a)(2).

 

22  See 11 U.S.C. § 1328(a)(2), discussed in § 550.1 [ Fraud and Defalcation: § 523(a)(4) ] § 159.3  Fraud and Defalcation: § 523(a)(4).

 

23  See 11 U.S.C. § 1328(a)(4), discussed in § 554.1 [ Willful or Malicious Injury: § 1328(a)(4) ] § 159.7  Willful or Malicious Injury: § 1328(a)(4).

 

24  See § 548.1 [ Taxes ] § 159.1  Taxes.

 

25  See §§ 346.1 [ Student Loans ] § 158.2  Student Loans and 553.1 [ Student Loans: § 523(a)(8) ] § 159.6  Student Loans: § 523(a)(8).

 

26  See, e.g., Lawrence v. Educational Credit Mgmt. Corp. (In re Lawrence), 251 B.R. 467 (E.D. Va. 2000) (Student loan guarantor waived its right to challenge payment of its debt through the plan by failing to object to confirmation and failing to object to a proof of claim filed by the debtors on behalf of the guarantor. Confirmed plan provided payment of principal portion of student loan. Guarantor did not object to confirmation or file a proof of claim. Debtors filed a proof of claim on behalf of the student loan creditor in the exact amount of the principal. The trustee made distributions, and the debtors completed payments. After discharge, the guarantor argued that it had not participated in the Chapter 13 case and could apply the payments received through the plan first to the postpetition interest that accrued on the nondischargeable student loan. The district court disagreed, holding that the guarantor’s failure to object to confirmation or to challenge the proof of claim filed by the debtors bound the guarantor to the plan and barred the guarantor’s postdischarge argument that the debtors’ proof of claim was untimely.), rev’d sub nom. Kielisch v. Educational Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315, 324 (4th Cir. 2001) (“Because § 523(a)(8) explicitly precludes the discharge of the Debtors’ student loan debts absent a showing of undue hardship, because § 502 does not address ECMC’s ability to apply estate payments to post-petition interest debts, and because ECMC’s application of payments is consistent with the standard accounting practices set forth in 34 C.F.R. § 684.404(f), we cannot agree that ECMC was barred from applying the Debtor’s estate payments to postpetition interest on their student loans.”).

 

27  See § 113.7  Order of Payments to Creditors before BAPCPA and § 113.8  Order of Payments to Creditors after BAPCPA.

 

28  There may be additions to the 180-day bar date for certain tax claims after BAPCPA. 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.

 

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

 

30  No. 99-13833/JHW, 2002 WL 31002913 (Bankr. D.N.J. July 23, 2002) (Letter opinion).

 

31  279 B.R. 859 (Bankr. M.D. Fla. 2002).

 

32  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

33  2002 WL 31002913, at *2.

 

34  See §§ 98.1 [ Plan Must Provide Full Payment ] § 73.1  Plan Must Provide Full Payment and 441.1 [ New and Changed Treatment of Priority Claims ] § 73.6  Treatment of Priority Claims Changed by BAPCPA for discussion of the requirement in § 1322(a)(2) for full payment of priority claims.

 

35  Tepper is also discussed in § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005.

 

36  883 F.2d 991 (11th Cir. 1989).

 

37  This questionable holding by the Eleventh Circuit is discussed further below in this section and in §§ 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 and 358.1 [ On Liens ] § 162.3  On Liens.

 

38  See discussion of extent of codebtor stay beginning at § 65.1  Cosigners and Joint Obligors Are Protected.

 

39  11 U.S.C. § 1301(c)(2). See § 66.2  Automatic Relief under § 1301(d) and discussion of grounds for relief from codebtor stay beginning at § 67.2  Plan Does Not Pay Debt in Full

 

40  Southtrust Bank of Ala. v. Thomas (In re Thomas), 883 F.2d 991 (11th Cir. 1989). 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, 234.1 [ Failure to Provide For ] § 121.3  Failure to Provide For and 280.1 [ Secured Claim Holders ] § 132.7  Secured Claim Holders.

 

41  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.

 

42  See discussion on limitations on effects of confirmation beginning at § 121.1  Overview.

 

43  See, e.g., Southtrust Bank of Ala. v. Thomas (In re Thomas), 883 F.2d 991 (11th Cir. 1989) (Secured claim holder’s lien was not affected by confirmed plan notwithstanding that the claim holder failed to file a proof of claim and notwithstanding that the plan provided for payment in full of allowed secured claims.); In re Lee, 182 B.R. 354 (Bankr. S.D. Ga. 1995) (When plan is silent with respect to lien and the secured creditor does not file a proof of claim, lien survives and relief from the stay is appropriate after confirmation.).

 

44  See In re Hogan, 346 B.R. 715 (Bankr. N.D. Tex. 2006) (One reason for Bankruptcy Rule 3004 was to give a debtor or trustee the right to file a claim on behalf of a lienholder that fails to timely file its own claim pursuant to Bankruptcy Rule 3002(c). A lienholder that fails to timely file proof of its own claim is not entitled to distributions under the plan but can be expected to eventually seek relief from the stay or adequate protection. Bankruptcy Rule 3004 provides Chapter 13 debtors with a mechanism for dealing with this problem.).

 

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

 

46  See discussion of unfiled and untimely filed claims beginning at § 135.5  Failure to File Proof of ClaimSee also discussion beginning at § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors.

 

47  See discussion of changes to 11 U.S.C. § 1325(a) made by BAPCPA beginning at § 75.1  In General: Modification Without § 506 and § 132.8  910-Day PMSI Car Claims: Epilogue.

 

48  See, e.g., In re Frank, No. 05-86731, 2008 WL 343439, at *4 (Bankr. C.D. Ill. Feb. 5, 2008) (unpublished) (Perkins) (Primary purpose of case was to save home, and law firm failed to properly perform its duty to file proof of claim on behalf of property tax creditor. “Conscientious debtors’ lawyers will check the claim register, usually at or around the claim bar date, to make sure a claim is on file for all secured and priority claims. If not, the attorney should file a claim on the creditor’s behalf.”); In re Jurado, 318 B.R. 251 (Bankr. D.P.R. 2004) (Local rule that requires debtors to file proofs of claim on behalf of creditors specifically provided for by the plan before confirmation is intended to encourage the use of Bankruptcy Rule 3004 by debtors who desire to pay lienholders through the Chapter 13 plan. When the debtor filed a proof of claim on behalf of a lienholder in the 54th month of 60-month plan, the claim was allowable because there is no deadline for the filing of secured proofs of claim in Chapter 13 cases, but the few months remaining in the plan were insufficient to pay the lienholder in full. The debtor is left with a lien because the creditor did not participate in the distribution of funds through the plan. The burden is on the debtor to file a claim on behalf of a lienholder when the debtor really wants or needs to pay the claim through the plan.).

 

49  286 B.R. 612 (Bankr. E.D. Pa. 2002).

 

50  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004 for discussion of “superceding” claims under the pre-2005 version of Bankruptcy Rule 3004.

 

51  286 B.R. at 615–16.

 

52  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

53  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.

 

54  See In re Sarkese, 189 B.R. 531, 535 (Bankr. M.D. Fla. 1995) (“A debtor who is liable to a secured creditor may file a proof of claim if a creditor does not timely file a proof of claim of such creditor’s claim. See 11 U.S.C. § 501 (1994). A proof of claim filed under section 501 of the Bankruptcy Code is deemed allowed, unless a party in interest objects. See 11 U.S.C. § 502 (1994). Further, Rule 3001(f) . . . provides that, ‘[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of validity and amount of the secured claim.’ Fed. R. Bankr. P. 3001(f). . . . [D]ebtors filed a proof of claim . . . which provided that McWilliams had a secured claim valued at $38,364.00. . . . McWilliams was mailed a copy of the notice of the proof of claim. . . . McWilliams did not object to proof of claim filed by debtors. Therefore, the Court finds the proof of claim filed by debtors valuing McWilliams’ secured claim at $38,364.00 to be valid.” Debtor’s proposal to pay $38,364 was confirmed over creditor’s objection that the debtors really owed $62,000.).

 

55  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

56  For those offended by the proposition that the debtor would file a proof of claim on behalf of a secured claim holder and then object to that claim, it is, of course, also possible that the Chapter 13 trustee filed the claim and a creditor then objected to the trustee’s claim. There is nothing in the Code or Rules that prohibits a debtor from filing a proof of claim on behalf of a creditor and then objecting to that claim. See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

57  268 B.R. 95 (Bankr. E.D. Pa. 2001).

 

58  See §§ 273.1 [ Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations ] § 131.4  Informal Proofs of Claim: Letters, Motions, Pleadings and Conversations and 274.1 [ Is a Plan Provision a Proof of Claim? ] § 131.5  Is a Plan Provision a Proof of Claim?.

 

59  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004. See, e.g., In re Houston, No. 07-00113, 2008 WL 104076, at *1 (Bankr. D. D.C. Jan. 4, 2008) (unpublished) (Teel) (Unscheduled creditor’s claim is not subject to discharge since claim was not provided for in plan, and court couldn’t extend bar date for creditor; but “the debtor may be able to show excusable neglect justifying obtaining an enlargement of time under Rule 9006(b) for the debtor to file a proof of claim on behalf of American Express pursuant to Fed. R. Bankr. P. 3004.”).

 

60  The superseding-claims concept was removed from Bankruptcy Rule 3004 in 2005. See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

61  In re Townsville, 268 B.R. at 107–08.

 

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

 

63  See discussion of unfiled and untimely filed claims beginning at § 135.5  Failure to File Proof of Claim.

 

64  See §§ 275.2 [ In General: Filing is Required for Allowance ] § 132.2  In General: Filing is Required for Allowance, 289.1 [ Untimely Filed Claims in Cases Filed before October 22, 1994: The Hausladen Phenomenon ] § 135.6  Untimely Filed Claims in Cases Filed before October 22, 1994: The Hausladen Phenomenon and 290.1 [ Untimely Filed Claims in Cases Filed after October 22, 1994 ] § 135.7  Untimely Filed Claims in Cases Filed after October 22, 1994.

 

65  See, e.g., In re Michels, 270 B.R. 737, 741 (Bankr. N.D. Iowa 2001) (“If an untimely secured claim is disallowed, . . . the creditor’s lien may be at risk under § 506(d). . . . The conditions for voiding a secured creditor’s lien under § 506(d) are present when an untimely proof of a secured claim is filed and a party successfully objects to that claim.”).

 

66  502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (1992) (Chapter 7 debtor cannot use § 506(d) to strip down the lien of an undersecured mortgage holder.). See § 105.1 [ Valuation, Claim Splitting and Dewsnup ] § 76.1  Valuation, Claim Splitting and Dewsnup. See also § 447.1 [ Lien Retention, Including in No-Discharge Cases ] § 74.13  Lien Retention after BAPCPA, Including in No-Discharge Cases for cases holding that a debtor not eligible for Chapter 13 discharge may not strip a lien, applying Dewsnup rationale.

 

67  See Bender v. Commonwealth Mortgage Co. of Am. (In re Bender), 86 B.R. 809 (Bankr. E.D. Pa. 1988).

 

68  See Clark v. Transamerica Fin. Servs., Inc. (In re Clark), 205 B.R. 140, 141–42 (Bankr. S.D. Ill. 1997) (Wholly unsecured second mortgage lien survives Chapter 13 case because neither lienholder nor debtor filed a proof of claim; debtor could have filed a claim on behalf of the lienholder and then avoided the wholly unsecured lien under § 506(d). Lienholder is not protected from modification by § 1322(b)(2) because it did not file a proof of claim. Confirmed plan “has no effect” on lienholder’s rights because confirmed plan merely recited that the debtor would seek to avoid the lien. Filing of complaint under § 506(d) did not help the debtor because § 506(d)(2) protects the lien from avoidance in the absence of a proof of claim. “Application of § 506(d)(2) does not unfairly prejudice the debtor’s fresh start in this case because he had the ability to file such a claim on Transamerica’s behalf in order to avoid the lien under § 506(a) and (d). See Fed. R. Bankr. P. 3004.”).

 

69  See § 280.1 [ Secured Claim Holders ] § 132.7  Secured Claim Holders. See, e.g., In re Michels, 270 B.R. 737, 741 (Bankr. N.D. Iowa 2001) (“If an untimely secured claim is disallowed, . . . the creditor may be precluded from seeking relief from the stay during the term of the plan.”); In re Macias, 195 B.R. 659, 662 n.5, 663 (Bankr. W.D. Tex. 1996) (“If a secured claim is untimely filed, the trustee is entitled (perhaps even obligated) to object to its filing as untimely. Such disallowed claims will not be entitled to any distribution under the plan, nor will the creditor’s failure to timely file permit the [creditor] to later argue a lack of adequate protection.” In a note, “a secured creditor cannot simply absent itself from the bankruptcy process in chapter 13, then hope to obtain easy relief from the automatic stay after confirmation. Such a creditor could hardly maintain that cause existed for relief from stay where the debtor had made provision for the creditor in the plan and only the creditor’s refusal to file a claim prevented it from receiving the adequate protection that had been offered.”); In re Schaffer, 173 B.R. 393, 395 (Bankr. N.D. Ill. 1994) (Secured claim holder must file proof of claim within the 90-day limitation fixed by Bankruptcy Rule 3002, else the claim is disallowed. “If the admittedly late filed claim is disallowed, the Debtor may be able to retain the collateral, a 1993 Nissan Truck, throughout the administration of the case and Bank One will have to await the closing of the case before pursuing its remedies. . . . Or, of course, Bank One could move to vacate the stay for cause. Cause would not likely flow from an omission (the late filing) by the party seeking relief from the stay.”).

 

70  See § 41.2  Preconfirmation Amendment of Petition, Statements, Schedules and Lists, § 89.9  Miscellaneous Classes of Unsecured Claims, § 121.3  Failure to Provide For,§ 127.3  To “Add” Prepetition Creditors, § 133.2  Unscheduled Creditors before BAPCPA, § 133.3  Unscheduled Creditors after BAPCPA, § 158.5  Claims Not Provided for by the Plan or Disallowed under § 502 and § 159.4  Unscheduled Creditors: § 523(a)(3).

 

71  See § 133.2  Unscheduled Creditors before BAPCPA discussion of unfiled and untimely filed claims beginning at § 135.5  Failure to File Proof of Claim.

 

72  See § 283.1 [ Unscheduled Creditors ] § 133.2  Unscheduled Creditors before BAPCPA.

 

73  See § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005. See also §§ 283.1 [ Unscheduled Creditors ] § 133.2  Unscheduled Creditors before BAPCPA and 511.1 [ Filing of Claims by Debtor or Trustee: New Rule 3004 ] § 134.2  Filing of Claims by Debtor or Trustee after 2005 Amendments to Bankruptcy Rule 3004.

 

74  See, e.g., In re Moore, 247 B.R. 677, 689 (Bankr. W.D. Mich. 2000) (Chapter 13 debtors can use Bankruptcy Rule 3004 to file proofs of claim on behalf of unscheduled creditors to “add” the claims without modifying the confirmed plan. “[A] plan which contemplates a distribution to all unsecured creditors having allowed claims does leave room for claimants who were inadvertently omitted from the debtor’s schedules. . . . Debtors have the option of . . . filing a motion themselves to enlarge the time within which to file a protective claim and then overcome whatever objections the Chapter 13 trustee, the existing creditors, and the omitted creditor might have to that protective claim.”); In re McQueen, 228 B.R. 408, 411 & n.4 (Bankr. M.D. Tenn. 1998) (Court reserves the question whether Bankruptcy Rule 3004 is a method around the disallowance of untimely filed claims when the debtor has failed to give notice to a creditor. In a note, “Federal Rule of Bankruptcy Procedure 3004 provides limited relief in certain circumstances . . . . The court offers no opinion as to whether Federal Rule of Bankruptcy Procedure 9006(b) is available to extend the 30 days in Rule 3004.”), rev’d on other grounds sub nom. IRS v. Hildebrand, 245 B.R. 287 (M.D. Tenn. 2000), appeal dismissed for lack of jurisdiction, 248 F.3d 484 (6th Cir. 2001).

 

75  Fed. R. Bankr. P. 9006(b)(1).

 

76  286 B.R. 778 (Bankr. N.D. Cal. 2002).

 

77  286 B.R. at 778–79.

 

78  Tepper is discussed above in this section and in § 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005.

 

79  See also 11 U.S.C. § 523(a)(3), applicable to completion of payments in Chapter 13 cases filed on or after October 17, 2005, discussed in § 551.1 [ Unscheduled Creditors: § 523(a)(3) ] § 159.4  Unscheduled Creditors: § 523(a)(3).

 

80  See § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors, § 158.2  Student Loans and § 159.6  Student Loans: § 523(a)(8) for discussion of the discharge of student loans in Chapter 13 cases.

 

81  Some of these ethical issues are discussed with respect to student loans in § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors, § 121.2  Notice and Due Process Considerations, Including Claims Allowance and Valuation, § 158.2  Student Loans and § 159.6  Student Loans: § 523(a)(8).

 

82  See, e.g., 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.).

 

83  See §§ 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors and 233.1 [ Notice and Due Process Considerations, Including Claims Allowance and Valuation ] § 121.2  Notice and Due Process Considerations, Including Claims Allowance and Valuation for discussion of the difficult interaction between confirmation and claims allowance.

 

84  289 B.R. 448 (Bankr. M.D. Fla. 2003).

 

85  See § 175.1 [ Fake Leases and Rental Agreements ] § 102.8  Fake Leases and Rental Agreements for discussion of treating a lease as a security agreement.

 

86  289 B.R. at 451.