Dennis Lee Durdle

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
IN RE:
DENNIS LEE DURDLE,
DEBTOR. 	CASE NO. 04-02396-8-JRL
Chapter 13
______________________________________________________________________________
ORDER
This case is before the court on a motion by Dennis Lee Durdle (“debtor”) to recover chapter
13 disbursements paid by the trustee to certain unsecured creditors. On January 24, 2008, the court
conducted a hearing on this matter in Wilmington, North Carolina.
The debtor filed a chapter 13 petition on March 24, 2004. The debtor’s petition listed a claim
of his ex-spouse, Kelli Durdle, for a domestic support obligation in the amount of $32,992.00. The
debtor’s plan, which included an amount sufficient to pay this obligation, was confirmed on June
30, 2004. 	The debtor made his monthly plan payments, believing that they were being used to
satisfy his domestic support obligation. However, the debtor recently learned that his ex-spouse and
the Illinois Department of Children and Family Services, the government entity responsible for
assisting his ex-spouse in collecting her domestic support claim, filed an untimely proof of claim,
SO ORDERED.
SIGNED this 29 day of January, 2008.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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1The debtor’s ex-spouse has agreed to accept approximately $27,292.22 in satisfaction of
the domestic support obligation. This figure represents $17,542.22, the amount the debtor
initially sought to recover in his present motion, and fifteen plan payments of $650.00 each,
minus administrative expenses.
2The debtor’s motion also requested disbursement from the Internal Revenue Service,
Claim Number 9, in the amount of $8,146.04. However, the debtor withdrew his request for
disbursement from the Internal Revenue Service at the January 24, 2008 hearing.
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and that as a result, the obligation had not been paid and remains due.1 The debtor’s present motion
requests that the court allow the proof of claim and order the repayment of funds already distributed
to certain unsecured creditors in order to pay this obligation. The debtor argues that, if allowed, the
claim is entitled to priority under 11 U.S.C. § 507, and that repayment from unsecured creditors is
necessary to enforce and implement the proper order of distribution under 11 U.S.C. § 726(a)(1).
The debtor seeks repayment from the following unsecured creditors:
Claim No. 	Unsecured Creditor 	Amount of Disbursement
11 	Ecast Settlement Corp. 	$5,395.12
15 	Capital One 	$114.48
16 	Capital One 	$423.87
18 	Hanover Financial Corp. 	$187.29
24 	Ecast Settlement Corp. 	$1,590.98
27 	Rescomm. Holdings #02 LLC 	$1,684.44
TOTAL 	$9,396.182
Under Federal Rule of Bankruptcy Procedure 3002(c), a proof of claim in a chapter 13 case
must be filed within ninety days after the first date set for the creditors’ meeting under 11 U.S.C.
§ 341(a). In addition, if the debtor receives the register of claims filed and notices the omission of
a claim which should have been filed, the debtor may file a proof of that claim within thirty days
after the expiration of ninety-day time period prescribed in Rule 3002(c). Fed. R. Bankr. P. 3004.
It is undisputed that the claim at issue was not filed within the applicable ninety-day period and that
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the debtor did not file a proof of this claim under Rule 3004. Normally, this would be the end of the
matter since the court’s ability to enlarge the time period for filing a claim under Bankruptcy Rule
3002 is limited only to the exceptionally narrow circumstances provided in subsections (c)(1) -
(c)(5). See Fed. R. Bankr. P. 9006(b)(3).
The debtor argues that this case falls precisely within one of these narrow exceptions. Under
Bankruptcy Rule 3002(c)(2), “[i]n the interest of justice and if it will not unduly delay the
administration of the case, the court may extend the time for filing a proof of claim by an infant or
incompetent person or the representative of either.” 	Fed. R. Bankr. P. 3002(c)(2). 	The debtor
argues that this narrow exception is applicable because the joint claim for the domestic support
obligation made by his ex-spouse and the Illinois Department of Children and Family Services is,
in effect, a claim belonging to his children and made by those parties solely in their capacity as
representatives of the children.
The court finds that the interests of justice support allowing the joint claim for domestic
support obligations. Permitting the claim to be paid through the debtor’s bankruptcy estate, rather
than requiring the joint claimants to recover through additional litigation, provides greater certainty
that the debtor’s children will, in fact, receive the domestic support that they are owed. The court
further finds that allowing the debtor’s motion would not unduly delay the administration of the
case. Although the trustee initially objected to the motion, the trustee withdrew this objection at the
January 24, 2008 hearing. Additionally, the affected unsecured creditors neither filed an objection
to the motion prior to the hearing, nor objected at the January 24, 2008 hearing. Absent objection
by the trustee or any affected creditors, there is no showing that permitting the relief sought by the
debtor would unduly delay the administration of the case. 	Therefore, the court GRANTS the
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debtor’s motion and ORDERS that the unsecured creditors listed below repay the amounts
corresponding to their claims to the chapter 13 trustee.
Claim No. 	Unsecured Creditor 	Amount of Disbursement
11 	Ecast Settlement Corp. 	$5,395.12
15 	Capital One 	$114.48
16 	Capital One 	$423.87
18 	Hanover Financial Corp. 	$187.29
24 	Ecast Settlement Corp. 	$1,590.98
27 	Rescomm. Holdings #02 LLC 	$1,684.44
“END OF DOCUMENT”
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