MARIA MAGDALENA PADILLA QUINONES

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
IN THE MATTER OF 	:
:
MARIA MAGDALENA 	: 	CASE NO. 10-08219(MCF)
PADILLA QUINONES 	:
: 	CHAPTER 13
:
DEBTOR(S) 	: 	Filed 	& 	Entered 	03/02/2011
:
OPINION AND ORDER
This 	case 	is 	before 	the 	Court 	on 	the 	following 	motions:
Trustee's objection to claim 12 by claimant Athos R. Castro Cros
(“Castro 	Cros”or 	“Claimant”) 	filed 	on 	docket 	19 	and 	Claimant's
answer 	to 	objection 	filed 	on 	docket 	number 	23. 	For 	the 	reasons
set 	forth 	below, 	the 	Chapter 	13 	Trustee's 	objection 	to 	claim 	is
DENIED.
PROCEDURAL HISTORY
On 	September 	6, 	2010, 	the 	debtor 	filed 	a 	Chapter 	13
bankruptcy petition. (Docket No. 1) 	On 	September 9, 2010, the
Clerk 	of 	the 	Court 	gave 	notice 	of 	the 	first 	341 	meeting 	of
creditors, the appointment of the Chapter 13 Trustee, the bar date
to 	file 	proof 	of 	claims 	and 	the 	first 	confirmation 	hearing.
(Docket 	No.6) 	The 	bar 	date, 	or 	last 	day, 	fixed 	to 	file 	a 	non-
governmental proof of claim was January 16, 2011. 	On January 18,
2011, Castro Cros filed proof of claim number 12 in the amount of
$7,495.00 	as 	unsecured. 	On 	January 	24, 	2011, 	the 	Chapter 	13
Trustee 	objected 	to 	claim 	number 	12 	on 	the 	grounds 	that 	it 	had
been 	filed 	after 	the 	bar 	date 	established 	by 	Fed. 	R. 	Bankr. 	P.
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1 11 U.S.C. § 341(a).
2
3002(c). (Docket No. 19) 	On January 31, 2011, Castro Cros filed
an answer to the Trustee's objection to claim. (Docket 23)
DISCUSSION
A 	proof 	of 	claim 	which 	is 	filed 	under 	11 	U.S.C. 	§ 	501 	is
deemed allowed unless a party in interest objects. 	In the instant
case, 	the 	Chapter 	13 	Trustee 	objected 	to 	the 	allowance 	of 	claim
number 	12 	because 	it 	was 	filed 	late. 	Castro 	Cos 	filed 	his 	claim
number 12 on January 18, 2011, two days after the established bar
date. 	The 	answer 	filed 	by 	the 	claimant 	alleges, 	in 	synthesis,
that the claim was not filed late because it was timely mailed on
January 	13, 	2011; 	three 	days 	before 	the 	bar 	date. 	Claimant
further requests that this Court allow this claim as timely filed.
The deadline for filing a claim is set by Fed. R. Bankr. P.
3003(c) which states that in a Chapter 13 case, a proof of claim
is 	timely 	filed 	if 	it 	is 	not 	filed 	later 	than 	90 	days 	after 	the
first date set for the meeting of creditors under section 341(a)
of 	the 	Bankruptcy 	Code. 1 	The 	first 	date 	for 	the 	341 	meeting 	of
creditors 	in 	this 	case 	was 	set 	for 	October 	18, 	2010 	and 	the 	bar
date elapsed 90 days later, which was January 16, 2011. 	This was
the last date to timely file a 	non-governmental unsecured proof
of claim.
Certain untimely filed proof of claims are excepted from the
bar 	date, 	but 	these 	are 	limited 	to 	the 	six 	exceptions 	listed 	in
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2 Fed. R. Bankr. P. 3002 (c) (1)-(6)
Filing Proof of Claim or Interest
(a) Necessity for filing. An unsecured creditor or an equity security holder must file a proof of claim or interest for
the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005.
(b) Place of filing. A proof of claim or interest shall be filed in accordance with Rule 5005.
(c) Time for filing. In a chapter 7 liquidation, chapter 12 family farmer's debt adjustment, or chapter 13 individual's
debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the
meeting of creditors called under § 341(a) of the Code, except as follows:
(1) A proof of claim filed by a governmental unit, other than for a claim resulting from a tax return filed under §
1308, is timely filed if it is filed not later than 180 days after the date of the order for relief. A proof of claim filed by
a governmental unit for a claim resulting from a tax return filed under § 1308 is timely filed if it is filed no later than
180 days after the date of the order for relief or 60 days after the date of the filing of the tax return. The court may,
for cause, enlarge the time for a governmental unit to file a proof of claim only upon motion of the governmental
unit made before expiration of the period for filing a timely proof of claim.
(2) In 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.
(3) An unsecured claim which arises in favor of an entity or becomes allowable as a result of a judgment may be
filed within 30 days after the judgment becomes final if the judgment is for the recovery of money or property from
that entity or denies or avoids the entity's interest in property. If the judgment imposes a liability which is not
satisfied, or a duty which is not performed within such period or such further time as the court may permit, the claim
shall not be allowed.
(4) A claim arising from the rejection of an executory contract or unexpired lease of the debtor may be filed within
such time as the court may direct.
(5) If notice of insufficient assets to pay a dividend was given to creditors under Rule 2002(e), and subsequently the
trustee notifies the court that payment of a dividend appears possible, the clerk shall give at least 90 days' notice by
mail to creditors of that fact and of the date by which proofs of claim must be filed.
(6) If notice of the time to file a proof of claim has been mailed to a creditor at a foreign address, on motion filed by
the creditor before or after the expiration of the time, the court may extend the time by not more than 60 days if the
court finds that the notice was insufficient under the circumstances to give the creditor a reasonable time to file a
proof of claim.
3
Fed. 	R. 	Bankr. 	P. 	3002(c)(1)-(6). 2 	After 	reviewing 	the 	six
exceptions, the court finds that the facts of the instant case do
not fall within any of these six exceptions. In addition, Fed. R.
Bankr. 	P. 	9006(b)(3) 	limits 	the 	court's 	jurisdiction 	to 	enlarge
the 	time 	for 	taking 	action 	under 	Bankruptcy 	Rule 	3002(c) 	to 	the
extent 	and 	only 	under 	the 	conditions 	stated 	by 	this 	particular
rule.
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3 Fed. R. Bankr. P. 9006(e).
4
The Bankruptcy Court has no discretion to allow an untimely
proof of claim in a Chapter 13 case unless one of the exceptions
in Rule 3002(c) apply, not even for equitable considerations. In
re 	Gardenshire, 	209 	F.3d 	1145(9th 	Cir. 	2000); 	In 	re 	Geenig, 	152
F.3d 631(7th Cir. 1998).
In 	the 	alternative, 	the 	court 	considers 	the 	Claimant's
allegation that the claim was filed on a timely basis because it
was deposited in the mail on January 13, 2011, three days before
the bar date. 	Bankruptcy Rule 9006(e), 3 	the rule that governs
service 	of 	any 	process, 	paper 	or 	notice 	by 	mail, 	states 	that
service 	is 	complete 	on 	mailing. 	However, Rule 	9006(e) 	does 	not
deal with "filing," only with service. If a notice must be filed
with the court on or before a certain date, the filing will not be
timely just because it was mailed within that period of time. “10-
9006 	Collier 	on 	Bankruptcy 	"10-9006 	Collier 	on 	Bankruptcy
9006.11.(emphasis 	added) 	Bankruptcy 	Rule 	9006(f) 	provides 	an
additional three days to the prescribed period for service when it
is 	done 	by 	mail. 	The 	court 	in 	In 	re 	Whitten, 	49 	B.R. 	220, 	221
(Bankr. N.D.In Ala. 1985), found that
a 	reading 	of 	Bankruptcy 	Rule 	9006(f) 	shows 	that 	it
literally 	does 	not 	apply 	to 	the 	time 	period 	for 	a
creditor to file a proof of claim in a Chapter 13 case.
The 	rule 	refers 	to 	the 	right 	to 	do 	an 	act 	within 	a
prescribed 	period 	after 	service 	of 	a 	notice, 	when 	the
notice is served by mail. The filing of a proof of claim
is 	not 	within 	a 	prescribed 	period 	after 	service 	of 	a
notice. The filing of a proof of claim is an act within
a prescribed period of 90 days after the first date set
for the meeting of creditors. It is the date first set
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4Fed. R. Bankr. P. 9006(a)(3)(A)
5
for the meeting of creditors which triggers the running
of the time for the filing of the proofs of claim -- not
the mailing of the notice by the clerk of the court.
Bankruptcy 	Courts 	have 	concluded 	that 	the 	mailbox 	rule 	is
inapplicable 	to 	the 	filing 	of 	proofs 	of 	claim. 	In 	re 	Allegheny
International, Inc., 93 B.R. 910, 912 (Bankr. W.D. Pa. 1988).
In order for filing to be complete and timely as to a proof of
claim, 	the 	same 	must 	be 	received 	at 	the 	Clerk's 	office 	before
expiration of the deadline. As such, the date the proof of claim
was mailed is irrelevant for purposes of determining timeliness.
Upon 	review, 	the 	Court 	notes, 	a 	matter 	not 	alleged 	by 	either
party in the controversy at bar: that the deadline for filing the
proof of claim was Sunday, January 16, 2011 and the following day,
Monday, 	January 	17, 	2011 	was 	a 	legal 	holiday 	commemorating 	the
birthday of Martin Luther King, Jr. 	Pursuant to Bankruptcy Rule
9006(a)(3)(A), 4 unless the court orders otherwise, if the clerk’s
office is inaccessible, the last day for filing is extended to the
first 	accessible 	day 	that 	is 	not 	a 	Saturday, 	Sunday 	or 	legal
holiday. 	In the instant case, the first accessible day for filing
was 	Tuesday, 	January 	18, 	2011, 	the 	same 	day 	that 	Claimant 	filed
his proof of claim.
CONCLUSION
In 	conclusion, 	the 	Court 	finds 	that 	the 	proof 	of 	claim 	filed 	by
claimant Athos R. Castro Cros was timely filed. 	In light of the
aforementioned, 	the 	Court 	denies 	the 	Chapter 	13 	Trustee's
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objection 	to 	claim 	12 	and 	orders 	that 	claim 	12 	be 	allowed 	as
unsecured.
SO 	ORDERED.
In San Juan, Puerto Rico, this 2 day of March, 2011.
BY THE COURT:
/s/MILDRED CABAN FLORES
U.S. Bankruptcy Judge
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