NORTHERN DISTRICT OF CALIFORNIA
JONAS ROLYN, No. 00-11363
Memorandum of Decision
In this Chapter 13 case, the deadline for filing proofs of claim was October 17, 2000. Creditor
Travelquest, Ltd., did not file a proof of claim until October 20, 2000. However, it did file an objection
to the plan on August 11, 2000. Travelquest has asked the court to deem its objection to the plan an
"informal proof of claim" which may be amended. Debtor Jonas Rolyn opposes the request and seeks
disallowance of Travelquest's late-filed claim.
Citing In re Gardenhire,
209 F.3d 1145 (9th
Cir. 2000), Rolyn argues that in light of the 1994
amendment to the Bankruptcy Code adding § 509(b)(9) there is no longer such thing as an informal
proof of claim. However, a reading of that case does not support his position. Gardenhire
the proposition that the claims deadline cannot be equitably tolled. It does not say that a document filed
before the deadline cannot be considered an informal proof of claim. The courts have continued to
apply the informal proof of claim theory in cases subject to § 509(b)(9). See, e.g., In re Larsen
B.R. 609, 614n1 (Bkrtcy.D.Minn. 2000).
Objections to Chapter 13 plans may qualify as informal proofs of claim. In re Larsen
However, the operative word is "may." If the objection to the plan filed by Timequest before the claims
bar date had in any way discussed its claim, the court might have consider the document to be an
informal proof of claim. However, the objection contains not one word
about the nature or amount of
Travelquest's claim. It only discussed the amount of Rolyn's homestead claim and the liquidation value
of his estate. The court may not rely merely on extensive participation by a creditor in the bankruptcy
case to deem a document an informal proof of claim; the document itself must meet the basic
requirements of a claim. In re Stewart
, 46 B.R. 73, 76 (Bkrtcy.D.Ore.1985)(Declining to deem
objection to Chapter 13 plan an informal proof of claim). At a minimum, the document urged as an
informal proof of claim must state the nature and amount of the claim and the present intent to assert it.
In re Holm
, 931 F.2d 620, 622 (9th Cir.1991) ("For a document to constitute an informal proof of
claim, it must state an explicit demand showing the nature and amount of the claim against the estate,
and evidence an intent to hold the debtor liable."); In re Sambo's Restaurants, Inc.
, 754 F.2d 811, 815
Cir. 1985); Perry v. Certificate Holders of Thrift Savings,
320 F.2d 584, 590 (9th
Cir.1963); In re
, 237 B.R. 146, 154 (9th
Cir.BAP 1999). Since Travelquest's objection to the plan stated
nothing about the nature of its claim or its amount, the court cannot consider it to be an informal proof
of claim. It simply does not meet the minimum requirements for a claim.
As a fall-back position, Travelquest argues that its prepetition lawsuit against Rolyn, filed two
years before the bankruptcy, constitutes an informal proof of claim. However, prepetition lawsuits do
not meet the requirements of an informal proof of claim, as they do not establish a current intent to hold
the debtor's estate liable. (1) In re L.F. Rothschild Holdings, Inc.
, 160 B.R. 66, 71 (S.D.N.Y. 1992); In re
Thomson McKinnon, Inc.
, 130 B.R. 721, 723 (Bkrtcy.S.D.N.Y. 1991).
Because the court finds that the minimum requirements of an informal proof of claim have not
been met, the court does not need to address whether the debtor's illness or other equitable factors
make application of the doctrine inappropriate in this case.
For the foregoing reasons, Travelquest's motion will be denied and Rolyn's objection to its
claim will be sustained. Counsel for Rolyn shall submit an appropriate form of order.
Dated: May 14, 2001 ___________________________
U.S. Bankruptcy Judge
1. The lawsuit might have furnished a basis for a finding of an informal proof of claim if
Travelquest had referred to it in its objection to the plan or made a motion for relief from the stay to
prosecute it. Travelquest did ne