Memorandum of Decision Re: Late Claim
II. Modification of the Plan
There is no basis upon which a plan can be modified at the request of a creditor. Section 1127(b) of the Bankruptcy Code restricts the right to modify the plan to the plan proponent or the reorganized debtor, and provides that the plan may not be modified after substantial consummation. The Trust was not the plan proponent, and the plan has been substantially consummated. The motion to modify the plan must therefore be denied. The court notes that it is also far too late to seek revocation of confirmation pursuant to section 1144 of the Code.
III. Dischargeability Action
The Trust's arguments regarding the statute of limitations for filing a dischargeability action are meaningless, as there is no such thing as a dischargeability action against a corporate debtor. Section 1141(d)(2), which excepts certain debts from discharge, does not apply to corporations. see Beard v. A.H. Robins, Inc., 828 F.2d 1029 (4th Cir 1987).
IV. Leave to File Late Claim
While the court recognizes its equitable power to allow late claims in certain instances, no good cause exists to do so in this case. Had the Trust timely asserted its claim in 1988, before the debtor began performing its plan, the claim could have been litigated and allowed and the plan modified if needed. It is patently unfair to the debtor to force it to litigate the issue now, after it has paid almost all of its debts and at a time when itno longer has the power to modify the plan. Moreover, the reasons put forward as excusing the four-year delay in bringing this matter before the court do not come close to good cause. Counsel for the Trust attempts to blame the clerk's office for only making the file available rather than copying what was already a voluminous file. She further blames the effect on her of "the internal changes resulting from the departure of two of the firm's five attorneys, and the hiring of two others." The court finds such excuses insufficient to justify the failure to act in a timely manner.
Regardless of whether earlier knowledge of the bankruptcy proceedings can be imputed to the Trust, it clearly had knowledge of all relevant facts by August of 1988. Its failure to act in a timely and responsible manner thereafter is unjustified, and the prejudice to the debtor in allowing claims litigation to proceed at this late date would be severe. Accordingly, its motion will be denied in its entirety. Counsel for the debtor shall submit an appropriate form of order.
Dated: August 3, 1992 _______________________ Alan Jaroslovsky U.S. Bankruptcy