John R. Mickens

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
JOHN R. MICKENS,
Debtor.
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Case No. 04-1324
(Chapter 13)
DECISION RE OBJECTION TO CLAIM OF LITTON LOAN SERVICING
The trustee filed an objection to to the proof of claim
filed January 10, 2005, by Litton Loan Servicing, in the amount
of $103,653.08, with an arrearage of $13,585.12, as untimely
based on the bar deadline date of December 26, 2004. Litton has
opposed the objection, noting that failure to allow its claim
will result in Litton pursuing enforcement of its lien.
In a chapter 13 case, the court has no discretion to enlarge
the time under F.R. Bankr. P. 3002(c) for a creditor’s filing a
proof of claim other than in the case of a claim by a
governmental unit, an infant, or an incompetent person. See F.R.
Bankr. P. 3002(c)(1) and (2). Litton argues that it will be in
the debtor's best interests to address any prepetition arrearages
under a plan, and that curing an arrearage claim under 11 U.S.C.
§ 1322(b)(5) does not invoke the claims allowance and payment
procedure, and that its arrearage claim is thus not subject to
the filing deadline of Rule 3002. However, Rake v. Wade, 508
U.S. 464 (1993), makes clear that the curing of an arrearage in a
case constitutes providing for a claim such as generally to be
governed by 11 U.S.C. § 1325(a)(5); in turn, § 1325(a)(5) applies
The decision below is signed as a decision of
the court.
Signed: February 14, 2005.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 Accord, In re Hill, 286 B.R. 612, 615 (Bankr. E.D. Pa.
2002); In re Michels, 270 B.R. 737 (Bankr. N.D. Iowa 2001), rev'd
on other grounds, 286 B.R. 684 (8th Cir. B.A.P. 2002); In re
Kelley, 259 B.R. 580 (Bankr. E.D. Tex. 2001); In re Hudson, 260
B.R. 421, 431 (Bankr. W.D. Mich. 2001); In re Dennis, 230 B.R.
244, 248-49 (Bankr. N.J. 1999); In re Baldridge, 232 B.R. 394,
396 (Bankr. N.D. Ind. 1999); In re Macias, 195 B.R. 659, 661
(Bankr. W.D. Tex. 1996); In re Schaffer, 173 B.R. 393, 397
(Bankr. N.D. Ill. 1994); In re Alderman, 150 B.R. 246, 251-52
(Bankr. D. Mont. 1993); In re Zimmerman, 156 B.R. 192 (Bankr.
W.D. Mich. 1993) (en banc ).
2
to payment of only allowed claims. Moreover, F.R. Bankr. P. 3021
requires that only allowed claims receive distributions.
Litton has no allowed claim because it missed the deadline
of Rule 3002(c) for filing a proof of claim. Despite F.R. Bankr.
P. 3002(a) stating only that an unsecured creditor must file a
proof of claim for the claim to be allowed, the deadline of Rule
3002(c) is not limited to unsecured creditors, and the Bankruptcy
Code itself makes clear that filing of a timely proof of claim is
necessary for a holder of a secured claim to have an allowed
secured claim. See In re Boucek, 280 B.R. 533, 537-38 (Bankr. D.
Kan. 2002).1 Both 11 U.S.C. §§ 501(a) and 502(a) contemplate
filing of a claim in order for the claim to be allowed, and 11
U.S.C. § 502(b)(9), which became effective on October 22, 1994,
requires disallowance of an untimely claim with exceptions
inapplicable here. Boucek, 280 B.R. at 537. While 11 U.S.C. §
506(d) provides that disallowance of a claim as an allowed
secured claim solely on the ground of untimeliness does not void
the lien securing the claim, disallowance does bar distributions
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2 See, e.g., In re Babbin, 164 B.R. 157 (Bankr. D. Colo.
1994); In re Rome, 162 B.R. 872, 875 (Bankr. D. Colo. 1993)
(disregards Rule 3021 in holding that a chapter 13 trustee must
pay a secured creditor under a confirmed plan even if the secured
creditor fails to file a claim); In re Hausladen, 146 B.R. 557
(Bankr. D. Minn. 1992) (en banc); In re Harris, 64 B.R. 717,
718-19 (Bankr. D. Conn. 1986).
3 The court’s limited research found no similar decisions
issued after the amendment of § 502(b)(9).
3
on that claim under a confirmed plan. Boucek, 280 B.R. at 538.
Some older decisions hold that a secured creditor’s failure to
file a timely proof of claim may not be invoked to bar receipt of
distributions in a chapter 13 case,2 but were rendered obsolete
by the amendment of § 502(b)(9).3
A debtor or a trustee who failed timely to file a proof of
claim on behalf of a creditor under F.R. Bankr. P. 3004, may
obtain an enlargement of the Rule 3004 deadline for "cause shown"
where "the failure to act was a result of excusable neglect."
F.R. Bankr. P. 9006(b)(1). However, this procedure is not
available to creditors by reason of Rule 9006(b)(2) which bars
extending the Rule 3003(c) deadline. See In re Townsville, 268
B.R. 95, 105-06 (Bankr. E.D. Pa. 2001). As Litton urges, it may
be in the debtor’s interests to pay the arrearage claim, if one
exists, through a plan. In addition, the debtor’s plan may prove
infeasible, to the detriment of unsecured creditors, if the court
were to grant Litton relief from the automatic stay to pursue a
prepetition arrearage claim. However, the debtor has not sought
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4 Indeed, the debtor, whose plan provides for Litton to be
paid its claim outside the plan, contends that no arrearage
exists. The court does not address whether the debtor may seek
to file a late proof of claim on Litton's behalf and then object
to that claim in order to obtain an adjudication whether an
arrearage actually exists, and then seek to modify the plan if
any arrearage does exist.
4	O:\JUDGEFIL\Claims\Chapter 13 Late-Filed Claim, No Discretion to Enlarge Time, Arrearage Cl (Mickens).wpd
to file a late proof of claim for Litton's prepetition arrearage
claim.4
Accordingly, the court will disallow Litton's claim as late-
filed.
[Dated and signed above.]
S. Martin Teel, Jr.
United States Bankruptcy Judge
Copies to:
Cynthia A. Niklas; Debtor; Debtor’s Attorney; Michael Cantrell.
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