Memorandum of Decision Re: Late Claim

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re RICHARD O. BARTON,                                                                          No. 92-12977      Debtor. ___________________________/
     At the time the debtor filed his Chapter 13 petition, he was being sued by unsecured creditor Household Finance Corporation. He properly listed HFC in his schedules, and further filed a pleading in the state court giving notice of bankruptcy. Thus, both HFC and its counsel had independent formal notice of the Chapter 13 filing.      The HFC home office thought that its counsel would file a proof of claim. Its counsel thought the home office would file the claim. As a result of this confusion, no timely claim was filed. By the present motion, HFC seeks allowance of a late claim on the basis of excusable neglect.      Both sides have submitted incompetent briefs. HFC erroneously argues that FRBP 3003 applies to this action, and thus relies on the Supreme Court decision in Pioneer Inv. Serv. Co. v. Brunswick Assoc., 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and the Appellate Panel decision in In re Dix, 95 B.R. 134 (9th Cir.BAP 1988). However, Chapter 13 claims deadlines are set forth in FRBP 3002(c), not FRBP 3003. The Supreme Court in Pioneer, at footnote 4, specifically noted that its decision was limited to Chapter 11 cases and that claims in Chapter 13 cases were governed by FRBP 3002(c) and FRBP 9006(b)(3). The latter rule forbids the court to extend the time for filing claims in Chapter 13 cases except as expressly provided in the former.      The debtor's brief is an incredible mess. It contains a mass of irrelevant nonsense, and fails to discuss any relevant rules or cases. It also violated Local Rule 220-4 due to its excessive length.      While a few courts have used strained reasoning to find that FRBP 9006(b)(3) should not be given its intended effect (see, e.g., In re Hausladen, 146 B.R. 557 (Bkrtcy.D.Minn.1992)), most courts apply the rule according to its clear meaning and hold that excusable neglect is not a ground for allowance of a late claim in Chapter 13 cases. See. e.g., In re Smartt Const. Co., 138 B.R. 269 (D.Colo.1992); In re Jones, 154 B.R. 816 (Bkrtcy.M.D.Ga.1993); In re Duarte, 146 B.R. 958 (Bkrtcy.W.D.Tex.1992). The court follows these cases and finds that as a matter of law HFC's claim cannot be allowed.      Even if excusable neglect could excuse failure to file a timely claim in a Chapter 13 case, HFC has only established neglect, not excusable neglect. There were no uncontrollable factors or outside influences which caused it to file its claim late, only unwarranted assumptions by itself and its counsel which a simple phone call could have corrected. No excusable neglect has been shown.      For the foregoing reasons, IT IS ORDERED that the motion for allowance of a late claim is denied.
Dated: September 4, 1993                                                                      _______________________                                                                                                                Alan Jaroslovsky                                                                                                                U.S. Bankruptcy