Yesterday we reported a decision where Bankruptcy Judge Michelle M. Harner of Baltimore ruled that newly modified Bankruptcy Rule 3002(c)(6) did not give her discretion to allow a creditor to file a late claim when the creditor did not know there was a bankruptcy and the creditor had been omitted from the creditor matrix.
Today, we have an opinion by Bankruptcy Judge Elizabeth W. Brown of Denver who reached the opposite result and found discretion to allow the filing of a late claim under the same rule.
The Facts in Judge Brown’s Case
The facts in the case before Judge Brown were functionally the same as those confronting Judge Harner. The chapter 13 debtor filed his creditor matrix on time but inadvertently omitted his credit card lender, who therefore did not have notice of the filing.
The creditor learned about the bankruptcy about one month after the bar date and filed a motion under Bankruptcy Rule 3002(c)(6) for authority to file a late claim. The debtor supported the motion to allow the late filing of the claim.
Noting that courts have come down both ways, Judge Brown found discretion to allow the late filing of the claim. Like Judge Harner, she observed that the rule was amended, effective December 1, 2017. The recent amendment has given courts little time to sort out the issues.
Rule 3002(c)(6) was the governing rule. It allows the filing of a late claim “if the court finds that: (A) the . . . debtor failed to timely file the list of creditors . . . required by Rule 1007(a); or (B) the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim, and the notice was mailed to the creditor at a foreign address.”
Like Judge Harner, Judge Brown said in her August 28 opinion that the “express terms” of the rule only permit the filing of a late claim “when the debtor fails to file the Creditor Matrix on a timely basis.” Because the debtor filed the creditor list, the rule on its face would seem to deprive the court of discretion to allow a late claim.
Also like Judge Harner, Judge Brown noted the difference in language between subsections (c)(6)(A) and (B). Where clause (A) requires insufficient note and the late filing of the creditor list, clause (B) only requires insufficient notice.
The two judges agreed that the inclusion of the condition regarding the creditor list in clause (A) and its omission in clause (B) implies that the drafters intended to permit no discretion to allow a late claim if the debtor had filed the creditor list on time.
However, that’s where Judge Brown parted company with Judge Harner.
Judge Brown said that a strict reading of (c)(6)(A) will rarely, if ever, come into play because a case will be automatically dismissed in 45 days after filing under Section 521(i)(1) if the debtor has not filed a list of creditors. If the case has been dismissed, there will be no need for creditors to file claims and thus no need for permission to file a late claim.
Judge Brown said she “interpreted [the rule] more broadly to apply whenever a full and complete Creditor Matrix is not timely filed, such as when a creditor is omitted from the list or is listed incorrectly in such a way that the creditor does not receive notice.” (Emphasis in original.) She went on to say that both the creditor and the debtor can benefit by a more flexible reading of the rule.
Where the benefit to the creditor is obvious, a debtor can benefit because, for example, estate assets can be paid on account of priority or nondischargeable debts.
Allowing the creditor to file a claim beyond the bar date, Judge Brown said she “believes that the intent of Congress is best effectuated by reading this rule to apply whenever the debtor fails to timely file a full and complete Creditor Matrix.”
N.B. Judge Harner could not have known about Judge Brown’s opinion because it was not reported on Lexis until later in October after Judge Harner had filed her opinion.
Yesterday we reported a decision where Bankruptcy Judge Michelle M. Harner of Baltimore ruled that newly modified Bankruptcy Rule 3002(c)(6) did not give her discretion to allow a creditor to file a late claim when the creditor did not know there was a bankruptcy and the creditor had been omitted from the creditor matrix.
Today, we have an opinion by Bankruptcy Judge Elizabeth W. Brown of Denver who reached the opposite result and found discretion to allow the filing of a late claim under the same rule.
The Facts in Judge Brown’s Case
The facts in the case before Judge Brown were functionally the same as those confronting Judge Harner. The chapter 13 debtor filed his creditor matrix on time but inadvertently omitted his credit card lender, who therefore did not have notice of the filing.
The creditor learned about the bankruptcy about one month after the bar date and filed a motion under Bankruptcy Rule 3002(c)(6) for authority to file a late claim. The debtor supported the motion to allow the late filing of the claim.