Opinion
Case No. 97-11263-SSM
October 19, 1998
Priscilla G. Bornmann, Esquire, McKinley Bornmann, P.L.C., Alexandria, VA, of Counsel for the debtors
Leland L. Baker, Jr., Esquire, Hicks, Baker Peterson, L.L.P., Fredericksburg, VA, of Counsel for Little Tire Co., Inc.
MEMORANDUM OPINION
A hearing was held in open court on October 6, 1998, on the debtors' objection to the claim of Little Tire Co., Inc.("Little Tire") in the amount of $2,307.38. The debtors were present by counsel. The chapter 13 trustee was present in person. Although Little Tire filed a response by counsel with supporting affidavit in support of its claim, counsel did not appear at the hearing. Mr. F. R. Little, the debtor's president, did appear. Because of the unusual facts, the court took the matter under advisement.
Facts
Charles L. and Theresa Lynn Holtzman ("the debtors") filed a joint voluntary petition for repayment of their debts under chapter 13 of the Bankruptcy Code in this court on February 21, 1997. The bar date for creditors, other than governmental units, to file proofs of claim was June 30, 1997. Among the creditors listed on the debtors' schedules and mailed notice of the commencement of the case and of the deadline for filing claims was Little Tire. For reasons that are not entirely clear, a plan has not yet been confirmed.
The file maintained by the clerk of court does not reflect the filing of any claim by Little Tire, nor is such a claim shown on the claims register maintained by the clerk for the Holtzmans' case. However, an original proof of claim, dated "3-25-97" by Little Tire in the amount of $2,307.38 was received by the chapter 13 trustee and logged in as claim No. 23. The proof of claim bears a handwritten date, evidently placed by a member of the trustee's staff to reflect the date the claim was entered into the trustee's computer system, of "1/8/97." Other than the hand-written dates by Mr. Little and by the trustee's staff, there is no other indication of the date the proof of claim was received.
After being advised by the chapter 13 trustee of the existence of the proof of claim, the debtors filed an objection to the claim as untimely. The affidavit submitted by Little Tire in response states that the proof of claim, together with its supporting exhibits (invoices which reflect that they were reprinted off Little Tire's computer system on March 25, 1997), was mailed to the court on or about March 25, 1997, by first class mail. At the hearing, Mr. Little explained that he had not included a return envelope or requested a file-stamped copy back, but that he had, in accordance with the instructions on the notice he received, submitted two copies of the proof of claim. The normal procedure would have been for the clerk's office to have retained one of the copies, while the other would have been transmitted to the chapter 13 trustee.
The notice of commencement of case states as follows:
PROOF OF CLAIM. Except as otherwise provided by law, in order to share in any payment from the estate, a creditor must file a proof of claim by the date set forth above in the box labeled "Deadline to File A Proof of Claim." . . . All proofs of claim should be filed in an original and one (1) copy. To receive an acknowledgment that your proof of claim has been received, you must provide an additional copy and a postage paid, self-addressed envelope.
Discussion A.
Except in chapter 11 cases, in which certain scheduled claims are "deemed filed," a creditor desiring to receive distributions in a bankruptcy case must file a timely proof of claim. § 501, Bankruptcy Code; F.R.Bankr.P. 3002(a). Once filed, a proof of claim "is deemed allowed" unless a party in interest objects. § 502(a), Bankruptcy Code. The proof of claim must be filed with the clerk of the bankruptcy court for the district in which the bankruptcy case is pending. F.R.Bankr.P. 3002(a) and 5005(a). In a chapter 13 case, a proof of claim must be filed within 90 days after the first date set for the meeting of creditors. F.R.Bankr.P. 3002(c). That time may be enlarged only for certain limited classes of creditors, such as governmental units, infants, incompetent persons, creditors with claims arising from preference avoidance, and creditors with rejection claims. F.R.Bankr.P. 3002(c)(1) through (4). Enlargement is otherwise not permitted. F.R.Bankr.P. 9006(b)(3).
Governmental units have until 180 days after the filing of the petition in a voluntary case. § 502(b)(9), Bankruptcy Code.
A paper or pleading in a bankruptcy case is, in general, deemed filed when actually received by the clerk, even though it is not formally file-stamped until a later date or is lost by the clerk after its receipt. In the present case, there is no direct evidence that the clerk received the proof of claim. Standing alone, the affidavit of Mr. Little that the proof of claim was mailed in ample time for its receipt by the clerk prior to expiration of the bar date is insufficient to establish such receipt. See In re 50-Off Stores, Inc., 220 B.R. 897 (Bankr. W.D. Tex. 1998) ("mailbox rule" does not apply to the filing of proofs of claim by creditors); Chrysler Motors Corp. v. Schneiderman, 940 F.2d 911, 914 (3rd Cir. 1991) (mailing of proof of claim is not filing and did not raise rebuttable presumption of filing); In re Allegheny Int'l, Inc., 93 B.R. 910, 912 (Bankr. W.D. Pa. 1988) (mail box rule does not apply to filing of proofs of claim); but see In re Pyle, 201 B.R. 547, 553 (Bankr. E.D. Calif. 1996) (creditor could invoke mailbox rule to create presumption that properly addressed proof of claim was in fact received). In the present case, however, there is more than simply evidence of mailing. The trustee's possession of an original proof of claim, coupled with the testimony of Little Tire's president that two copies were mailed to the clerk, and the lack of any evidence that the chapter 13 trustee received his copy from any source other than the clerk, adequately establishes that a proof of claim was in fact received by the clerk notwithstanding its absence from the file or its entry on the claims register.
That said, the dispositive question remains: when was the proof of claim received by the clerk? The proof of claim is dated March 25, 1997 (three months prior to the June 30, 1997 bar date), and Mr. Little's affidavit asserts that it was mailed on that date. The hand-written notation by the trustee's staff of "1-8-97" cannot possibly be correct, because the chapter 13 case was not even commenced until some six weeks later. One can of course speculate as to what the correct date must have been. It is, for example, quite common for people, at the beginning of a new calendar year, to continue writing, simply from force of habit, the prior year. So one reasonable explanation is that the member of the trustee's staff intended January 8, 1998 (approximately six months after the bar date) rather than January 8, 1997. Other explanations are possible. The "8", for example, is written in such a way that it might originally have been a "6" (or vice-versa). If the staff member transposed day and month, the intended date might then be June 1, 1997, or August 1, 1997.
The matter is obviously not free from doubt. The burden of proof, however, is on the creditor to establish the timely receipt of its claim. Given the conflicting evidence, I am inclined to find that the claim was most likely received on January 8, 1998, which is beyond the bar date. The Federal Rules of Bankruptcy Procedure are clear and do not permit the time to be enlarged. Accordingly, the court has no choice except to disallow the claim, notwithstanding that the underlying debt — which has never been challenged — may well be owed.
A separate order will be entered disallowing the claim of Little Tire.