Patrick J. Houston

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PATRICK J. HOUSTON,
Debtor.
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Case No. 07-00113
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER REGARDING CHAPTER 13 TRUSTEE’S
OBJECTION TO UNTIMELY CLAIM OF AMERICAN EXPRESS CENTURION BANK
American Express Centurion Bank (“American Express”) opposes
disallowance of its untimely claim, and I assume (without
deciding) that, as alleged by American Express, it did not
receive notice of the bankruptcy case in time to file a timely
proof of claim. 	Nevertheless, the chapter 13 trustee’s objection
to the claim as untimely must be sustained.
There is no provision in the Bankruptcy Code or the Federal
Rules of Bankruptcy Procedure for allowing American Express to
file a proof of claim out of time in this chapter 13 case, and
the court lacks the equitable power to alter the deadline for
filing the proof of claim despite the lack of notice. 	See In re
Nwonwu, 362 B.R. 705 (Bankr. E.D. Va. 2007); In re Jensen, 333
B.R. 906 (Bankr. M.D. Fla. 2005); United States v. Meyer, 2004 WL
The Memorandum Decision and Order below is hereby
signed. Dated: January 4, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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2203403 	(N.D. Ill. Sept. 27, 2004); In re Barnes, 2004 WL
3135459 (Bankr. D.D.C. Dec. 10, 2004); In re McNeely, 309 B.R.
711 (Bankr. M.D. Pa. 2004); In re Wright, 300 B.R. 453, 458-59
(Bankr. N.D. Ill. 2003); In re Namusyule, 300 B.R. 100 (Bankr. D.
D.C. 2003); In re Bennett, 278 B.R. 764, 765-66 (Bankr. M.D.
Tenn. 2001); In re Brogden, 274 B.R. 287 (Bankr. M.D. Tenn.
2001).
As reflected by those decisions, disallowance of American
Express’s claim will have no impact on the claim other than to
bar its being paid through plan payments, and thus disallowance
of the claim will not deny American Express due process despite
its lack of notice of the case. 	Specifically, the claim will not
be discharged. 	First, based on the debtor’s failure to insure
that American Express received notice of the case, the claim
cannot be discharged under 11 U.S.C. § 1328(c) as having been
“provided for” by the plan. 	Second, although American Express’s
claim is being disallowed as untimely under 11 U.S.C. §
502(b)(9), and a claim disallowed under § 502 is generally
discharged under § 1328(c), American Express’s claim is of a kind
described in 11 U.S.C. § 523(a)(3) and hence falls within the
exception to discharge under § 1328(c)(2). 	Because the claim
will not be discharged, American Express can seek relief from the
automatic stay, to the extent necessary to treat American Express
fairly in comparison to other creditors who were given proper
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1 	Because the plan provides for full payment of all claims,
and the case is still relatively young, the belated filing of a
claim on behalf of American Express might not cause any
disruption or any significant adverse impact on holders of
allowed claims.
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notice of the case, so that it may proceed with collection.
Because the confirmed plan provides for payment of claims
without any postpetition interest or postpetition late charges,
the debtor may prefer that American Express’s claim be paid
through the plan if it will otherwise escape discharge. 	The
debtor may be able to show excusable neglect justifying obtaining
an enlargement of time under Rule 9006(b) for the debtor to file
a proof of claim on behalf of American Express pursuant to Fed.
R. Bankr. P. 3004. 	See In re Moore, 247 B.R. 677 (Bankr. W.D.
Mich. 2000) (discussing requirements of and entities to be served
with such a motion). 1 	A failure by the debtor to seek such an
enlargement of time might bear on whether the court would grant
American Express relief from the automatic stay to proceed to
collect its claim.
The claim would be an allowed claim had no one objected to
the claim. 	In re Nwonwu, 362 B.R. at 710. 	The trustee elected
to object to the claim as was her perogative. 	Perhaps she did
not realize that American Express failed to receive notice of the
case, and did not consider that, accordingly, the debtor might
seek to file a proof of claim on behalf of American Express if
American Express’s own proof of claim were disallowed as
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untimely. 	In any event, she has not withdrawn her objection.
However, the court’s Local Bankruptcy Rules do not provide for a
reply to an opposition to an objection to claim, and so the court
does not know what her reaction is to American Express’s
opposition.
In light of the foregoing, it is
ORDERED that after January 17, 2008, unless the trustee has
filed a notice requesting to withdraw her objection to American
Express Centurion Bank’s claim, the court will proceed to issue
an order disallowing the claim as untimely.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Kevin
M. Fitzpatrick, Esq.
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