Arthur J. Horowitz

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ARTHUR J. HOROWITZ,
Debtor.
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Case No. 08-00211
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE MOTION FOR RECONSIDERATION
OF DECEMBER 4, 2008 RULING REGARDING CLAIM OF GMAC
This addresses the debtor’s unopposed Motion (Docket Entry
(“DE”) No. 92) for Reconsideration of the Court’s December 4,
2008 Ruling Regarding Claim Filed by GMAC.
I
The debtor asks the court to find “that the de facto
physical surrender of [his] vehicle constitutes full satisfaction
of [GMAC’s claim] unless it can be demonstrated that the claim
should be adjusted based on proceeds received by GMAC as a result
of the sale or other disposition of the collateral.” 	For several
reasons, I must deny that request.
First, the debtor’s confirmed plan did not provide for
satisfaction of GMAC’s claim through surrender of the vehicle to
GMAC. 	Instead, the confirmed plan provided that GMAC was to be
The document below is hereby signed.
Signed: April 22, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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paid the full amount of whatever allowed claim it has in the
case. 	GMAC was a lessor, not a lienor, and the terms of the
lease governed what it would be owed as a result of the surrender
of the vehicle and GMAC’s disposing of the vehicle.
Second, under the lease, the debtor was entitled to a
reduction of the claim to the extent that GMAC’s sale of the
vehicle resulted in a surplus over the $19,390.25 residual value
of the vehicle. 	Only if the sale resulted in proceeds in excess
of the residual value of $19,390.25 would the sale proceeds have
resulted in a reduction of the amount owed to GMAC.
Third, the lease provided for the vehicle to be sold at
wholesale. 	The debtor reports that the vehicle had a NADA retail
value of $24,525.00, but has failed to report the NADA wholesale
value of the vehicle (despite my prior invitation to the debtor
to produce the evidence of wholesale value that is most favorable
to him). 1
Accordingly, the debtor has not shown error in the proof of
claim based on his having surrendered the vehicle to GMAC.
Putting aside the issue of the effect of a sale of the vehicle on
the amount owed to GMAC, the debtor has failed to show any error
1 	The debtor argues that GMAC has not even advised him
whether the car was sold. 	In the unlikely event that the car was
not sold, the debtor would only be entitled to show what the
result would have been had the car been sold, and without
evidence as to wholesale value, he has not demonstrated error in
GMAC’s proof of claim based on the car not being sold.
2
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in my calculation of the amount owed to GMAC in the Memorandum
Decision and Interim Order for a Claim of GMAC dated September
26, 2008.
II
The debtor understandably complains that GMAC has been
uncooperative in addressing how much it is owed. 	Specifically,
it has failed to reveal what was realized from the sale of the
vehicle and it has offered no meaningful assistance through
either its original proof of claim or its unsigned amended proof
of claim as to how it computed the amount owed under the
complicated provisions of the lease. 	But the burden is on the
debtor to demonstrate error in GMAC’s proof of claim. 	While GMAC
has failed to respond to the objection to its proof of claim,
that does not relieve the debtor of the burden of demonstrating
error in GMAC’s proof of claim.
The debtor is entitled to invoke Fed. R. Bankr. P. 2004 to
obtain information from GMAC. 	Once he has gathered that
information, he is free to file an amended objection to proof of
claim setting forth any evidence demonstrating error in GMAC’s
proof of claim beyond the errors that this court already noted in
limiting GMAC to an allowed claim for $14,889.96.
Nor am I precluding the debtor from asserting that GMAC has
breached any obligation that may exist under non-bankruptcy law
3
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to inform the debtor of the amounts received from the sale of the
vehicle, thus entitling the debtor to recover from GMAC by way of
set off against its proof of claim any damages recoverable under
non-bankruptcy law for such a breach. 	But at this juncture, the
debtor has not stated what reasonable steps he has taken to
obtain such information from GMAC. 	Although I share the debtor’s
frustration regarding GMAC’s mystifying silence (despite an
invitation to GMAC to file an amended proof of claim reciting the
amount of sales proceeds, which would avoid the expense of having
an attorney appear in the proceeding to provide that
information), it is not clear that the debtor has even attempted
such simple steps as a telephone call to discuss with GMAC’s
representatives the question of what was received on the sale.
III
As noted in the prior ruling, the amended proof of claim was
not signed. 	Accordingly, that proof of claim is a nullity, 2 and
GMAC continues to have an allowed claim pursuant to the original
proof of claim in the reduced amount of $14,889.96 as decided in
the Memorandum Decision and Interim Order dated September 26,
2008.
An order follows.
2 	Moreover, the discrepancies between the original and
amended proof of claim suffice to demonstrate error in the
amended proof of claim, thus shifting the burden to GMAC to
demonstrate why the amended proof of claim is correct and
warrants an allowed claim in excess of $14,889.96.
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[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Stephen
A. Hecker, Esq. (counsel for GMAC on its motion for relief from
the automatic stay); and:
GMAC
P. Bengtson, Agent
PO Box 130424
Roseville, MN 55113
GMAC
T. Trollen, Agent
PO Box 130424
Roseville, MN 55113
5	O:\TEEL\Judge Temp Docs\Horowitz Mem Decsn re Mtn to Reconsider 12-04-08 Order re GMAC Amended Claim_v2.wpd
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