In re Jones
In re Jones
Opinion of the Court
DECISION ON MOTION FOR RELIEF FROM STAY
Nearly twenty years ago this court said: “No one is ever required to file a proof of claim in any bankruptcy proceeding; it is just that not doing so has consequences.” In re Baldridge, 232 B.R. 394, 396 (Bankr.N.D.Ind. 1999). See also, In re Matteson, 535 B.R. 156, 163 (6th Cir. BAP 2015). That statement is as true today as it was then. By not filing a proof of claim, the Grant County State Bank is discovering what those consequences are.
Debtors filed a petition for relief under chapter 13 and the court eventually confirmed a plan. The plan proposed to pay the bank $8,000, plus interest, in monthly installments of $202.78, on account of its lien against their motor vehicle. Although it received appropriate notice of the bankruptcy and the various deadlines in the case, the bank did not object to confirmation and it did not file a proof of claim. After the plan was confirmed, it contacted the trustee and asked when it would begin receiving the payments called for by the plan, but was told it had not filed a claim and the deadline for doing so had passed. Three months later, still with no claim on file, the trustee filed a motion for post confirmation modification to take the funds the plan had allocated to the bank’s secured claim and distribute them to unsecured creditors, paying the bank nothing.
The bank is complaining about a self-inflicted wound. See, In re Humphrey, 309 B.R. 777, 781 (Bankr.W.D.Mo. 2004) (“The reason Movant is not adequately protected is that it is not receiving payments. The reason Movant is not receiving payments is that it failed to file a timely claim.”).
[A] secured creditor cannot simply absent itself from the bankruptcy process in chapter 13, then hope to obtain easy relief from the automatic stay after confirmation. Such a creditor could hardly maintain that cause existed for relief from stay where the debtor had made provision for the creditor in the plan and only the creditor’s refusal to file a claim prevented it from receiving the adequate protection that had been offered. In re Macias, 195 B.R. 659, 662 n. 5 (Bankr.W.D.Texas 1996).
“Granting post confirmation relief from the stay based upon a creditor’s choice to forgo distributions under a plan is a dangerous distortion of the Code.” Keith M. Lun-din & William H. Brown, Chapter 13 Bankruptcy, 4th ed., § 242.1 at ¶ 18, Sec. Rev. June 30, 2004, www.Chl3online.com.
The debtors provided for the bank in their plan. All it had to do to receive what had been allocated to it was to file a claim.
The failure to file a claim does not destroy or eliminate a creditor’s interest in property of the estate. Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004 (1886). Liens pass through bankruptcy unaffected, unless specifically acted upon by the bankruptcy court, and may be enforced in rem after the debtor has been discharged. See, Matter of Penrod, 50 F.3d 459, 461 (7th Cir. 1995); In re Tarnow, 749 F.2d 464 (7th Cir. 1984); In re Simmons, 765 F.2d 547 (5th Cir. 1985). See also, In re Pajian, 785 F.3d 1161, 1163 (7th Cir. 2015) (a secured creditor who fails to file a claim can still enforce its lien even after the debtor receives a discharge). Whether that remedy will have any value to the bank is something else entirely; but that is the price it must pay for failing to file a proof of claim. It is not appropriate to punish the debtors for the bank’s failure to'protect its interest. Humphrey, 309 B.R. at 781.
Grant County State Bank’s motion for adequate protection or alternatively for relief from the automatic stay and abandonment will be DENIED. An order doing so will be entered.
. "In order to receive a distribution under a confirmed Chapter 13 plan, even secured creditors must first file a proof of claim or have one filed on their behalf.” Baldridge, 232 B.R. at 396. So, in the absence of a proof of claim, tlte trustee would not be able to distribute the money earmarked for payment of the bank’s secured claim, and it would just sit there. Accordingly, a post confirmation modification was required in order to do something with those funds.
. The cases the bank cites for a seemingly contrary position, Matter of Thomas, 91 B.R. 117 (N.D.Ala. 1988); In re Lee, 182 B.R. 354 (Bankr.S.D.Ga. 1995); In re Thompson, 2014 WL 1330110 (Bankr.S.D.Ga. 2014), all involve plans that did not provide for the creditor’s secured claim.
Reference
- Full Case Name
- IN the MATTER OF: James Richard JONES, II, Amy Joe Jones, Debtors
- Cited By
- 2 cases
- Status
- Published