Memorandum Decision re Order Denying ex Parte Application to Establish Claims Bar Date for Omitted Creditor


Original Filed
November 17, 1999

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA

In re No. 98-35362BDM Chapter 13 ARTHUR OLLIVIERRE, Debtor. ___________________________________/

ORDER DENYING EX PARTE APPLICATION TO ESTABLISH CLAIMS BAR DATE FOR OMITTED CREDITOR Arthur Ollivierre (“Debtor”) has filed an application to establish a new claims bar date for a creditor, Homecomings Financial (“Homecomings”). Homecomings had notice of this Chapter 13 case; Debtor correctly listed Homecomings on its creditor mailing matrix filed on December 3, 1998. Debtor, however, did not correctly list Homecomings as a secured creditor on his schedules filed on January 21, 1999. Consequently, the Chapter 13 trustee did not serve Homecomings with the notice of Debtor’s section 341 meeting and of the claims bar date. The last day for filing proofs of claim was June 1, 1999, and Homecomings did not file a claim. Debtor now seeks to set a new deadline for Homecomings. For the reasons discussed below, Debtor’s application is denied. Section 501 of the Bankruptcy Code governs the filing of proofs of claim. Section 501 allows a creditor to file a timely proof of claim, and allows a debtor or the trustee to file such a proof of claim if the creditor fails to do so. Federal Rule of Bankruptcy Procedure 3002(c) limits the time in which a creditor may file a proof of claim in a Chapter 13 case. A claim must be filed within 90 days after the first date set for the meeting of the section 341 meeting of creditors. Bankruptcy Rule 3002(c) also provides specific exceptions to this deadline for filing claims. Debtor argues that one of these exceptions applies here. Bankruptcy Rule 3002(c)(3) allows an unsecured creditor to file a late claim if its claim arose or became allowable as a result of a judgment “if the judgment is for the recovery of money or property from that entity or denies or avoids the entity’s interest in property.” In this case, Homecomings holds a junior lien on Debtor’s property; the senior creditor has obtained a judgment allowing it to conduct a foreclosure sale on the property. This judgment, however, does not deny or avoid Homecoming’s interest in the property, and is not for the recovery of money or property from Homecomings. Therefore, the “judgment” exception of Bankruptcy Rule 3002(c)(3) is inapplicable. By way of supplemental argument, Debtor also contends that the note and second deed of trust held by Homecomings somehow constitute an executory contract which Debtor may reject, thus triggering the extended claims filing deadline of Bankruptcy Rule 3002(c)(4). Not surprisingly, Debtor offers no authority for this novel proposition. It is no more helpful than his first argument, discussed above. Because none of the exceptions of Bankruptcy Rule 3002 apply, the original deadline for filing proofs of claim cannot be extended. Debtor has not cited any other authority which would permit this court to disregard the language of Bankruptcy Rule 3002(c), and, more particularly, Bankruptcy Rule 9006(b)(3). Bankruptcy Rule 9006(b)(3) specifically limits the court’s powers to grant extensions for late claims to the enumerated exceptions under Bankruptcy Rule 3002(c). Because none of these exceptions apply here, the court is without power to waive the deadline for Homecomings to file its claim. In re Wrobel, 197 B.R. 289, 294-95 (Bankr. N.D. Ill. 1996). See also Aboody v. United States (In re Aboody), 223 B.R. 36, 39 (1st Cir. BAP 1998) (citing numerous cases where courts have refused to allow late filing of proofs of claim in Chapter 13 cases, even where “excusable neglect” exists). As this court noted in In re Robert, 171 B.R. 881 (Bankr. N.D. Cal. 1994): “Extensions of this [Rule 3002(c)] deadline may only be obtained by filing a motion prior to the expiration time, and for cause shown.” In light of the foregoing, it is hereby ORDERED that Debtor’s ex parte application for order establishing claims bar date for omitted creditor Homecomings Financial be, and hereby is, DENIED; and FURTHER ORDERED, that nothing in this Order is intended to or does constitute a determination as to whether Debtor’s obligations to Homecomings will or will not be discharged should he complete payments under his Chapter 13 Plan and be entitled to a discharge under 11 U.S.C. §1328.
Dated: November 17, 1999

______________________________
Dennis Montali
United States Bankruptcy Judge
NOTE: FILE also available in pdf format ollivierre11-2.pdf