- In Re Barker, 9th Cir. B.A.P., MT-13-1393-JuKuPa (March 28, 2014) [Unpublished]
- In an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the ruling by the bankruptcy court which held, the bankruptcy court did not have the discretion to allow a late filed proof of claim in a chapter 13 case based on the holding in United States v. Osborne (In re Osborne). The court also found that SLECU had not made a written demand to hold debtor liable for the debts and thus the requirements for an informal proof of claim under Ninth Circuit law were not met. Therefore the court denied SLECU's motion for allowance of late filed claims, sustained the trustee's objection to the late filed claims and disallowed SLECU claims against the debtor.
- Procedural context:
- Spokane Law Enforcement Federal Credit Union (SLECU) timely appeals from the bankruptcy court’s order (1) denying its Motion for Allowance of Claims; (2) sustaining the objection to late-filed claims filed by chapter 131 trustee, Robert G. Drummond; and (3) disallowing SLECU’s proofs of claim nos. 6, 7, and 8 as late filed.
- Marcella Lee Barker filed her chapter 13 petition on September 6, 2012. Debtor listed SLECU as a secured creditor owed $6,646.00 in Schedule D and as an unsecured creditor owed $47,402.00 in Schedule F.3 The debts were listed as undisputed and liquidated. SLECU was properly served with notice that the deadline for filing a proof of claim was January 8, 2013. SLECU did not file a proof of claim by the bar date. On September 19, 2012, debtor filed her chapter 13 plan, which she subsequently amended. The plan was a 100% repayment plan. SLECU had notice of the plan and amended plan. On October 6, 2012, the bankruptcy court confirmed debtor’s plan. In 2013 the debtor filed 2 motions to modify of the plan both of which were served on defendant SLECU. The first motion was filed in January 2013 and approved by the court on February 8th, 2013. In March 2013 the debtor filed a second motion to modify the plan which was approved on April 2, 2013. /p/ /p/ On July 31, 2013, SLECU filed a Motion for Allowance of Claims, asserting that debtor’s Schedules D and F constituted an informal proof of claim and/or judicial admission of its debt because the schedules listed it. claims. In response, debtor argued that the listing of a creditor in schedules does not constitute an informal proof of claim. Debtor further asserted that bankruptcy courts had no discretionary authority to enlarge the time for filing a proof of claim. At the August 2, 2013 hearing on the matter, the bankruptcy court found SLECU had not made a written demand to hold debtor liable for the debts and thus the requirements for an informal proof of claim under Ninth Circuit law were not met. The court denied SLECU’s motion, sustained the trustee’s objection to its late-filed claims, and disallowed SLECU’s claims.
- JURY, KURTZ, and PAPPAS,
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