The “B” Word – Asserting Your Claim in the Wake of a Bankruptcy Filing: Proof of Claim Basics

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The word “bankruptcy” often strikes dread in the hearts of creditors.  To some, when they hear that someone who owes them money has filed bankruptcy, they envision writing off the debt and never receiving a cent.  However, all is not necessarily lost when a customer files bankruptcy.  There are some steps creditors can take to assert their claims – one of which is to file a proof of claim.

What is a proof of claim?

 A proof of claim is a written statement, usually on an official form provided by the court, setting forth a creditor’s claim.  Generally, the proof of claim must be signed by the creditor or its authorized agent.  Although an attorney can sign the proof of claim on behalf of a client, this is not advisable.  The proof of claim is signed under penalty of perjury, could subject counsel to sanctions and criminal penalties if the statements are found to be false, and could make the attorney a fact witness in the case.

Why should a creditor file a proof of claim?

 In chapter 11 cases, a creditor should file a proof of claim if the debtor does not list the claim in its schedules, lists a different amount due, or lists the claim as disputed, contingent, or unliquidated.  In chapter 7 cases, if it appears that there are no assets from which a dividend can be paid, the notice of the meeting of the creditors may instruct creditors not to file a proof of claim.

 What is the deadline to file a proof of claim?

Generally, in chapter 7 or 13 cases, a proof of claim is timely filed if it is filed no later than 90 days after the first date set for the meeting of creditors.[1]  In chapter 11 cases, the deadline for filing a proof of claim will be set by the court.

The proof of claim must be filed with the clerk of the bankruptcy court by the deadline.[2]  The “mailbox rule” does not apply to the filing of claims.  This means that a creditor must mail the proof of claim sufficiently in advance of the deadline so that it is actually received by the deadline.  Some courts allow proofs of claims to be electronically filed and may provide creditors login information for the electronic case filing system so they can electronically file their claims.

Late claims are usually not allowed.  However, if a creditor fails to timely file a proof of claim in a chapter 11 case, the claim may be allowed if the creditor can prove the creditor was not given adequate notice of the bar date or the failure to timely file the proof of claim was due to “excusable neglect.”  A creditor is not entitled to relief if its failure to timely file the proof of claim was due to an inadvertent mistake, gross carelessness, ignorance of the rules or mistakes construing the rules.

What information should a proof of claim contain?

The proof of claim provides the amount and basis for the creditor’s claim against the debtor and lists amounts owed to the creditor as of the date the bankruptcy case was filed.  If the creditor’s claim is based on a written document, a redacted copy of that document must be attached to the proof of claim.  If the document has been lost or destroyed, the creditor must include a statement explaining the circumstances of the loss or destruction.  If the debtor is an individual and the claim includes interest, fees, expenses, or other charges incurred before the debtor filed the bankruptcy petition, then the creditor must attach an itemized statement setting forth these charges.  For instance, a credit card collector must attach the credit agreement and a summary showing the name and account number of the debtor, the amount of the debt, the interest rate, and a break down of the interest charges, finance charges, and other fees that make up the balance of the debt, or attach enough monthly statements so that this information can be easily determined.  If the account has been transferred, the transferee must attach documentation showing its ownership of the claim, such as a copy of the assignment and sufficient information to identify the original account.

If the creditor claims a security interest in the debtor’s property, the creditor must attach a statement of the amount necessary to cure any default as of the date of the petition with the proof of claim and evidence that the security interest has been perfected.

There are additional requirements for creditors who claim a security interest in the debtor’s principal residence.  If an escrow account has been established in connection with the claim, an escrow account statement prepared as of the date the debtor filed bankruptcy must be filed as an attachment to the proof of claim.  A creditor should also review the bankruptcy court’s local rules for requirements particular to that jurisdiction.  For instance, the Southern District of Texas requires that, in chapter 13 cases, an approved loan history form be completed and attached to the proof of claim.

A proof of claim can be amended to cure a defect in the originally filed proof of claim, describe the claim with greater particularity, or plead a new theory of recovery on the facts set forth in the original claim.  However, a creditor cannot file a woefully deficient proof of claim hoping that the debtor will not object but then amend it just before the hearing when the creditor does object.  Once an objection to a proof of claim has been filed, some bankruptcy courts require a creditor to obtain the consent of the debtor or leave of court before filing an amended claim.

What happens after the proof of claim is filed?

A proof of claim executed and filed in accordance with the Bankruptcy Rules constitutes prima facie evidence of the validity and amount of the claim and is deemed allowed unless an objection is filed.  Conversely, a proof of claim that fails to comply with the Bankruptcy Rules is not prima facie valid but it is not automatically disallowed.

An objection to a proof of claim is a contested matter and puts the parties on notice that litigation may be required so the court can determine whether to allow or disallow the claim.  Because a properly filed proof of claim constitutes prima facie evidence of the validity and amount of the claim, the objecting party has the initial burden of presenting sufficient evidence to overcome the prima facie effect of the proof of claim.  It is up to the objecting party to produce sufficient evidence to contradict the creditor’s entitlement to the claim at issue.  Once sufficient evidence is produced, the burden of proof shifts to the creditor who filed the proof of claim to establish the validity and amount of the claim.

Summary

Filing a proof of claim is one way a creditor may be able to receive payment of its claim in a bankruptcy case.  Before filing a proof of claim, a creditor should check the schedules to see if the debtor has already scheduled the claim.  The creditor should complete Official Form 10 with information about its claim, attach supporting documentation, and file the proof of claim sufficiently in advance of the deadline.  Once the claim is allowed, it should be paid pursuant to the plan in a chapter 11 or chapter 13 case or when a distribution is made in a chapter 7 case.  For an unsecured claim, the amount of the payment will vary depending on the value of the assets liquidated and the amount of the claims filed against the debtor.

Although this is intended to provide a basic overview of the proof of claim process, due to the nuances involved dependent on the type of claim and type of bankruptcy case, it is advisable to consult an attorney before filing a proof of claim.


[1] Fed. R. Bankr. P. 3002(c).  Governmental units have a longer deadline by which to file a proof of claim.  See Fed. R. Bankr. P. 3002(c)(1).  Additionally, an unsecured claim which arises or becomes allowable as a result of a judgment may be filed within 30 days after the judgment becomes final.  See Fed. R. Bankr. P. 3002(c)(3).

[2] Fed. R. Bankr. P. 3002(b), 5005.  In large chapter 11 cases, a claims agent may be responsible for handling the proofs of claim.  In these cases, the notice with the deadline for filing the proofs of claim will provide instructions on where to file the proofs of claim.

 

Topics:  Chapter 11, Chapter 7, Consumer Bankruptcy, Creditors

Published In: Bankruptcy Updates, Civil Procedure Updates, Finance & Banking Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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