Final Analysis, Inc.

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
In Re: 	Case No. 01-21039PM
Final Analysis, Inc.,
Chapter 11
Debtor.
International Research Centre Gloria-Polyot,
Movant,
v.
Final Analysis, Inc.,
Respondent.
MEMORANDUM OF DECISION
Before the court is a "Motion to Allow Late Filed Amended Claim No. 84 of International
Research Centre 'Gloria Polyot' to Relate Back to the Filing of an Informal Proof of Claim or in the
Alternative, for Extension of Time to File a Proof of Claim Based Upon Excusable Neglect," filed
by International Research Centre Gloria-Polyot on November 11, 2005. By response filed
November 23, 2005, the Chapter 7 Trustee urges, while the claim is untimely, it may be allowed as
a timely filed claim under 11 U.S.C. § 726(a)(2)(C) or F.R.B.P. Rule 9006(c). Opposition to the
motion was filed on December 1, 5 and 6, 2005 (Dkt. Nos. 513, 514 and 515) by Jan Friis and
Nader Mondanlo, debtor's principal as well as some unsecured creditors. Following the departure
Date signed June 21, 2006
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on April 14, 2006, of the Judge to whom this case was originally assigned, this matter was then
assigned to Judge Wendolyn Lipp, but because of a conflict this contested matter was reassigned.
The following sections of the Bankruptcy Code are applicable: §§ 502(a), 726(a)(2)(C) and
706(a)(3), as well as F.R.B.P. Rules 3002(c), 5005(c) and 9006(b)(2).
At the outset, the court will dispose of certain matters raised by the parties. First is the
argument raised by the claimant that an extension of time may be granted after the expiration of the
specified time to permit an act to be done where the failure to act was the result of excusable
neglect. Under F.R.B.P. Rule 9006(b)(3), that is applicable to the time for filing Proofs of Claim
under F.R.B.P. Rule 3002(c), enlargement of a time for filing a Proof of Claim in a case under
chapters 7, 12 or 13 may be obtained by motion made before the expiration of the specific period to
permit the act to be done. But, F.R.B.P. Rule 9006(b)(3) limits the enlargement of time for filing a
Proof of Claim under F.R.B.P. Rule 3002(c) only to the extent and under the conditions stated in
that Rule. None of the conditions stated in F.R.B.P. Rule 3002(c) apply here. See generally 10
COLLIER ON BANKRUPTCY , ¶ 9006.08[2] (15th ed. rev. 2002). As pointed out in the 1983 Advisory
Committee note to F.R.B.P. Rule 9006, if "a rule is included in paragraph (3) an extension may not
be granted under paragraph (1)." While excusable neglect was a matter properly raised in such
cases under chapter 11 as Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380
(1993). The holding of the Supreme Court in Pioneer Inv. Serv. Co. has no relevance herein.
Similarly, § 726(a)(2)(C) of the Bankruptcy Code has no relevance to this decision in that it
is uncontradicted that the claimant had actual knowledge of this bankruptcy case no later than
December 25, 2001, as shown by the claimant's Exhibit A. Following the Chapter 7 Trustee's
Notice of Assets filed on November 27, 2001, the court sent a notice on November 29, 2001, to all
creditors fixing the bar date for filing Proofs of Claim as February 25, 2002. It cannot be disputed
that the creditor had actual knowledge of the case within ample time for the timely filing of a Proof
of Claim.
Having said that, the court returns to the single issue involved in the case -- whether the
facsimile sent by Dr. Alexander Ilyin, as president of creditor, to counsel for the Chapter 7 Trustee,
James Hoffman, dated January 13, 2002, may form the basis for an informal de facto Proof of Claim
that may be amended by the Proof of Claim executed on Official Form 10 received by the Clerk of
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Clerk on February 27, 2002 -- two days after the bar date of February 25, 2002. The decision in this
case is guided by F.R.B.P. Rule 5005(c) that provides, in part, that:
A paper intended to be filed with the clerk but erroneously delivered to the United
States trustee, the trustee, the attorney for the trustee, a bankruptcy judge, a district
judge, or the clerk of the district court shall, after the date of its receipt has been
noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. . . . In
the interest of justice, the court may order that a paper erroneously delivered shall be
deemed filed with the clerk or transmitted to the United States trustee as of the date
of its original delivery.
The court finds as a fact, based on the testimony presented, that the facsimile was received by Mr.
Hoffman, the Chapter 7 Trustee's attorney, but that he failed to transmit it to the Clerk. The court
further finds as fact, although this is not pertinent to this decision, that although the debtor and
those in control of the debtor received the facsimile dated November 26, 2001 (Exhibit I), wherein
the claim for $230,000.00 was asserted together with a copy of the agreement said to underlie the
debt, that contrary to the debtor's responsibility, it failed to amend its Schedules so as to enable this
creditor to receive official notice from the court of the filing of the bankruptcy case as well as the
notice to file claims with the clerk of the court.
The doctrine of informal Proof of Claims has a long history. In the case of In re Fant, 21
F.2d 182 (W.D.S.C. 1927), Circuit Judge Northcott, sitting as a district judge, allowed the People's
Bank of Anderson, S.C., to file an amended Proof of Claim, although it had filed no formal Proof of
Claim. The opinion was quoted with approval by the Court of Appeals for the Fourth Circuit:
The trend of modern decisions on this question, without exception, is to the effect
that, where there is anything in the record in the bankruptcy case which establishes a
claim against the bankrupt, it may be used as a basis for amendment after the
expiration of the statutory year, where substantial justice will be done by allowing
the amendment.
Fyne v. Atlas Supply Co., 245 F2 107, 108 (CA4 1957) quoting In re Fant, 21 F.2d 182, 183
(W.D.S.C. 1927). In the Fant case, the court took notice of the case of Patterson-MacDonald
Shipbuilding Co. Carstens et ux. v. Mclean, 293 F. 190 (CA9 1923), that was another case of a
letter to a trustee setting out a claim of the estate. The court finds that the informal claim made well
within the filing period may be subjected to a perfecting amendment. Wilkens v. Simon Brothers,
Inc., 731 F2d 462, 464 (CA7 1984). Sufficient notice was give more than four years prior to the
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date of this hearing. As stated in the case of In re Davis, 936 F2d 771, 775-6 (CA4 1991), "[f]or an
amended claim to be allowed in the absence of a prior written informal claim, the creditor in
question must undertake some affirmative action to constitute sufficient notice that he has a claim
against the estate." Here, the claimant did everything correctly other than file an Official Form 10
two days late. As in the case of First American Bank & Trust of Minot v. Butler Machinery Co. (In
re Haugen Construction Services, Inc.), 876 F.2d 681 (CA 1989), the original communication by
facsimile should be construed as an informal Proof of Claim serving as a platform for the amended
Proof of Claim. While unlike Butler, this creditor did not actively participate in the case, most
likely because of its location in Siberia, the court nonetheless will permit amendment of the Proof
of Claim.
An appropriate order will be entered.
cc: 	Cheryl Rose, Esq.
Chapter 7 Trustee
50 W. Edmonston Dr., #600
Rockville, MD 20852
James M. Hoffman, Esq.
11921 Rockville Pike, #320
Rockville, MD 20852
Final Analysis, Inc.
9701-E Philadelphia Court
Lanham, MD 20706
Ann E. Schmitt, Esquire
1301 K St., NW, Ste 1100
East Tower
Washington, DC 20005
Joseph P. Suntum, Esquire
Miller, Miller & Canby
200-B Monroe Street
Rockville, MD 20850
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Gregory P. Johnson
Orem & Johnson, LLC
7237 Hanover Parkway, Suite C
Greenbelt, MD 20770
David W. Baker
3074 McKinnon Way, Suite 300
Oakton, VA 22124
Janet M. Nesse, Esquire
Morrison & Hecker, LLP
1150 18th Street, N.W., Suite 800
Washington, D.C. 	20036-3816
Office of the United States Trustee
6305 Ivy Lane, Suite 600
Greenbelt, MD 20770
Joel S. Aronson, Esquire
3 Bethesda Metro Center, #650
Bethesda, MD 20814
Jan Friis
9917 Derbyshire Lane
Bethesda, MD 20817
Nader Mondanlo
5 Crestview Court
Potomac, MD 20854
End of Order
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