In re: Marcella Lee Barker
FILED OPINION (WILLIAM A. FLETCHER, RONALD M. GOULD and N. RANDY SMITH) AFFIRMED, Judge: NRS Authoring. FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE MARCELLA LEE BARKER, AKA
Marci Barker, AKA Marci Vanni
SPOKANE LAW ENFORCEMENT
FEDERAL CREDIT UNION,
MARCELLA LEE BARKER; ROBERT
DRUMMOND, Chapter 13 Trustee;
OCWEN LOAN SERVICING, LLC,
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kurtz, and Jury, Bankruptcy Judges, Presiding
Argued and Submitted October 3, 2016
Filed October 27, 2016
Before: William A. Fletcher, Ronald M. Gould,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
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The panel affirmed the Bankruptcy Appellate Panel’s
affirmance of the bankruptcy court’s decision to disallow a
creditor’s late-filed claims in a Chapter 13 proceeding.
Agreeing with the Seventh Circuit, the panel held that if
a creditor wishes to participate in the distribution of a
debtor’s assets under a Chapter 13 plan, it must file a timely
proof of claim under Federal Rule of Bankruptcy Procedure
3002. The debtor’s acknowledgment of debt owed to the
creditor in a bankruptcy schedule does not relieve the creditor
of this affirmative duty.
Quentin M. Rhoades (argued) and Francesca di Stefano,
Sullivan Tabaracci & Rhoades P.C., Missoula, Montana, for
Robert Drummond (argued), Great Falls, Montana; Kraig C.
Kazda, Kazda Law Firm P.C., Great Falls, Montana; for
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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IN RE BARKER
N.R. SMITH, Circuit Judge:
If a creditor wishes to participate in the distribution of a
debtor’s assets under a Chapter 13 plan, it must file a timely
proof of claim. The debtor’s acknowledgment of debt owed
to the creditor in a bankruptcy schedule does not relieve the
creditor of this affirmative duty.
On September 6, 2012, debtor Marcella Lee Barker filed
a Chapter 13 bankruptcy petition in the United States
Bankruptcy Court for the District of Montana. Later that day,
in response to the filed petition, the bankruptcy court issued
an Official Form B9I, titled “Notice of Chapter 13
Bankruptcy Case, Meeting of Creditors, & Deadlines”
(“Notice”). The Notice stated that the deadline for creditors1
to file a proof of claim was January 8, 2013. On September
8, 2012, the Bankruptcy Noticing Center sent the Notice to
the Appellee, Spokane Law Enforcement Federal Credit
Union (“Credit Union”), by first class mail. On September
19, 2012, Barker timely filed her Chapter 13 plan with the
bankruptcy court.2 According to her attached certificate of
As noted in the Notice, a different deadline applies to a proof of
claim filed by a “governmental unit.” See Fed. R. Bankr. P. 3002(c)(1).
This alternative deadline is not relevant in this case as Appellee is not a
A Chapter 13 debtor must file a Chapter 13 plan within fourteen
days after filing a Chapter 13 petition. Fed. R. Bankr. P. 3015(b).
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IN RE BARKER
mailing filed with the court, the plan was also sent to the
Credit Union that day via first class mail.
On September 19, 2012, Barker also properly filed
schedules of her assets and liabilities.3 In these schedules,
Barker listed the Credit Union as a secured creditor holding
a $6,646.00 purchase money security interest in a 2004 Ford
F-150. Barker also listed the Credit Union as an unsecured
creditor holding a $47,402.00 claim that had previously been
secured by an unidentified automobile, which Barker’s exhusband had sold.
Barker moved to amend and modify the Chapter 13 plan
several times over the next few months. Each time such a
motion was filed, Barker sent a notice to the Credit Union. In
addition, each time the bankruptcy court entered an order
confirming the amended plan, the Bankruptcy Noticing
Center notified the Credit Union.
On May 30, 2013, more than four months after the
deadline to file a proof of claim expired, the Credit Union
filed three claims with the bankruptcy court: a secured claim
for $5,490.78 and unsecured claims for $28,293.94 and
$24,587.47.4 In accordance with the Local Bankruptcy Rules
In 2012, the Federal Rules of Bankruptcy Procedure required
Chapter 13 debtors to list their assets and liabilities on Official Form B6,
and its subparts. See Fed. R. Bankr. P. 9009. On December 1, 2015,
Official Form B6 was replaced by Official Form B 106. 6 West’s Fed.
Forms, Bankruptcy Courts § 1:20 (4th ed.).
The copies of the proofs of claims submitted in the excerpts of
record appear to assert two unsecured claims for $28,293.94 and
$24,587.47. These numbers are inconsistent with the Appellant’s brief
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for the United States Bankruptcy Court for the District of
Montana, the Trustee sent a “Notice of Late Filed Claims” to
the Credit Union on June 7, 2013.5 On June 10, 2013, the
Credit Union requested a hearing “to contest the tardy
response.” In this request, the Credit Union asserted that the
claims were belated, because a “disgruntled employee” failed
to timely file the claim. On July 31, 2013, the Credit Union
filed a formal motion with the bankruptcy court requesting
the court to allow the three claims. The court held a hearing
on the matter on August 2, 2013. The court denied the Credit
Union’s motion and disallowed the claims because the proofs
of claims were not timely filed.
On August 12, 2013, the Credit Union filed a notice of
appeal with the bankruptcy court, and the appeal was taken to
the Ninth Circuit Bankruptcy Appellate Panel (“BAP”). On
which list the amount of the unsecured claims as $28,293.84 and
Rule 3002-1 of the Local Bankruptcy Rules for the United States
Bankruptcy Court for the District of Montana provides as follows:
Late filed proofs of claim in Chapter 12 or 13 cases
shall be deemed disallowed, without need for formal
objection by the trustee or a hearing, if the trustee sends
a notice to the late filing creditor using Mont. LBF 21.
If a creditor files a response and requests a hearing
within thirty (30) days of the date of the notice, then the
creditor shall notice the contested matter for hearing
pursuant to Mont. LBR 9013-1 . . . . If the creditor fails
to file a written response to the objection to the late
filed claim within thirty (30) days of the date of the
notice provided by Mont. LBF 21, the failure to
respond shall be deemed an admission that the
objection should be sustained by the Court without
further notice or hearing.
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March 28, 2014, the BAP affirmed the bankruptcy court’s
decision to disallow the late filed claims. On April 24, 2014,
the Credit Union filed a timely notice of appeal to this court.
STANDARD OF REVIEW
“Whether a claim may be disallowed in a bankruptcy
proceeding on the ground that the proof of claim was not
timely filed pursuant to Rule 3002(c), Fed.R.Bankr.P., is a
question of law subject to de novo review.” IRS v. Osborne
(In re Osborne), 76 F.3d 306, 307 (9th Cir. 1996) (italics
omitted). Whether the Credit Union has asserted an informal
proof of claim is also a question of law subject to de novo
review. See Wright v. Holm (In re Holm), 931 F.2d 620, 622
(9th Cir. 1991).
In order to fully understand the intricacies of the legal
questions presented in this case, a short summary of Chapter
13 bankruptcy proceedings is helpful.
A petition filed under Chapter 13 helps overextended
debtors reorganize their debt—while allowing them to keep
their assets—by using “current and future income to repay
creditors in part, or in whole, over the course of a three-to
five-year period.” HSBC Bank USA, Nat’l Ass’n v.
Blendheim (In re Blendheim), 803 F.3d 477, 485 (9th Cir.
2015). A Chapter 13 case begins, like all other bankruptcy
cases, “with the filing of a petition and the creation of an
estate, which comprises the debtors’ legal and equitable
interests in property.” Id. at 484 (citing 11 U.S.C. § 541; Fed.
R. Bankr. P. 1002(a)). As soon as a debtor files a bankruptcy
petition, all entities are immediately prohibited from further
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pursuing collection efforts against the debtor or the debtor’s
estate. Id. (citing 11 U.S.C. § 362). Along with the petition,
a debtor must also file a schedule of assets and liabilities and
a statement of financial affairs. Fed. R. Bankr. P. 1007(b)(1).
In order to collect a debt from a debtor filing a Chapter 13
bankruptcy petition, an unsecured creditor must file a valid
“proof of claim,” which has gone through the “allowance
process set forth in 11 U.S.C. § 502.” In re Blendheim,
803 F.3d at 484–85. A secured creditor, who wishes to
receive distributions under a Chapter 13 plan, must also file
a valid proof of claim. See id. at 485; see also Schlegel v.
Billingslea (In re Schlegel), 526 B.R. 333, 342–43 (B.A.P.
9th Cir. 2015). However, a secured creditor, who does not
wish to participate in a Chapter 13 plan or who fails to file a
timely proof of claim, does not forfeit its lien. In re
Blendheim, 803 F.3d at 485 (“A creditor with a lien on a
debtor’s property may generally ignore the bankruptcy
proceedings and decline to file a claim without imperiling his
lien, secure in the in rem right that the lien guarantees him
under non-bankruptcy law: the right of foreclosure.”).
A bankruptcy court may disallow a claim for many
reasons, including if the proof of claim was untimely.
11 U.S.C. § 502(b)(9); In re Blendheim, 803 F.3d at 485. In
order for a proof of claim to be timely, a creditor generally
must file it within “90 days after the first date set for the
meeting of creditors.”6 Fed. R. Bankr. P. 3002(c). If a
creditor fails to file a timely proof of claim, a debtor or
trustee may file a claim on the creditor’s behalf within thirty
There are a handful of exceptions to the deadline for filing proofs of
claims, none of which apply here.
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days after the creditor’s ninety-day clock has expired. Fed.
R. Bankr. P. 3004.
The Credit Union admits that it filed its proofs of claims
late. Thus, the bankruptcy court properly rejected the claims.
However, it argues that the bankruptcy court still should have
allowed it to participate in the Chapter 13 plan, because
Barker listed the debt she owed the Credit Union in her
bankruptcy schedules. We disagree.
The Federal Rules of Bankruptcy Procedure clearly
provide that, in the Chapter 13 context, “[a]n unsecured
creditor or an equity security holder must file a proof of claim
or interest for the claim or interest to be allowed.” Fed. R.
Bankr. P. 3002(a) (emphasis added). The Ninth Circuit has
made it clear that this straightforward language should be
given its “plain meaning” and enforced accordingly.
Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145, 1148
(9th Cir. 2000). In addition, “in a highly statutory area such
as bankruptcy,” the Ninth Circuit prescribes “[c]lose
adherence to the text of the relevant statutory provisions.” Id.
(“[I]n a Chapter 13 proceeding: ‘Where the statutory
language is clear, our “sole function . . . is to enforce it
according to its terms.”’” (quoting Rake v. Wade, 508 U.S.
464, 471 (1993)). A plain reading of the applicable statutes
and rules places a burden on each Chapter 13 creditor to file
a timely proof of claim. A claim will not be allowed if this
burden is not satisfied.
There is other evidence, besides the plain language of the
statute, that indicates Congress intended to place such a
burden on the creditor. Specifically, a creditor in the Chapter
11 context is not always required to file a proof of claim.
Varela v. Dynamic Brokers, Inc. (In re Dynamic Brokers,
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IN RE BARKER
Inc.), 293 B.R. 489, 495 (B.A.P. 9th Cir. 2003). Both the
Federal Rules of Bankruptcy Procedure and the federal
statutes governing Chapter 11 bankruptcy make clear that “in
chapter 11 cases ‘it shall not be necessary for a creditor’ to
file a proof of claim unless the claim is either not scheduled
or is scheduled as disputed, contingent or unliquidated.” Id.;
Fed. R. Bankr. P. 3003(c)(2); 11 U.S.C. § 1111(a). Similar
language (relieving a creditor of the burden of filing a proof
of claim if the debtor has scheduled the claim) is absent from
the rules and statutes governing Chapter 13 bankruptcy. This
purposeful omission indicates Congress’s intent to require all
creditors wishing to enforce their claims to file a proof of
claim in the Chapter 13 context. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
Bankruptcy schedules serve multiple purposes
independent of a proof of claim and are as vital to the
bankruptcy plan as the proof of claim. Bankruptcy courts use
debtors’ schedules to determine whether debtors are eligible
for the particular relief they seek. Guastella v. Hampton (In
re Guastella), 341 B.R. 908, 918 (B.A.P. 9th Cir. 2006) (“The
debtors’ schedules should be the starting point to a
determination of the debtor’s aggregate debts. . . . However,
the schedules are not dispositive. If the debtors’ schedules
were dispositive, then eligibility could be created by improper
or incomplete scheduling of creditors.” (omission in original)
(quoting Quintana v. IRS (In re Quintana)), 107 B.R. 234,
238–39 n.6 (B.A.P. 9th Cir. 1989), aff’d, 915 F.2d 513 (9th
Cir. 1990)). Creditors also “rel[y] on the schedules to
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determine what action, if any, they [will] take in the matter.”
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 785
(9th Cir. 2001). A creditor may chose not to pursue a claim
after evaluating all of a Chapter 13 debtor’s debts and the
proposed repayment plan. Perry v. Certificate Holders of
Thrift Sav., 320 F.2d 584, 589 (9th Cir. 1963) (“There are
many cases where creditors, although listed on the books of
a bankrupt as such, will not be able to participate on an equal
basis with other general creditors.”). The proof of claim
plays the important role of “alert[ing] the court, trustee, and
other creditors, as well as the debtor, to claims against the
estate,” and the creditor’s intention to enforce the claims. In
re Daystar of Cal., Inc., 122 B.R. 406, 408 (Bankr. C.D. Cal.
1990); see also Adair v. Sherman, 230 F.3d 890, 896 (7th Cir.
2000). Simply put, “[t]he requirement that creditors be
scheduled is not a substitute for the further provision . . . that
creditors’ claims be proved.” Perry, 320 F.2d at 589.
A variety of courts have disallowed creditors’ late filed
claims despite the fact that they were listed on the debtor’s
bankruptcy schedules. See, e.g., Bowden v. Structured Invs.
Co. (In re Bowden), 315 B.R. 903, 907 (Bankr. W.D. Wash.
2004); In re Greenig, 152 F.3d 631, 632–34 (7th Cir. 1998)
(disallowing late filed claim even though debtor listed the
debt in a bankruptcy schedule and the bankruptcy court
confirmed the debtor’s reorganization plan, which included
the debt at issue). We agree with these courts. In a Chapter
13 case, a creditor must file a timely proof of claim in order
to participate in the distribution of the debtor’s assets, even if
the debt was listed in the debtor’s bankruptcy schedules.
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I. Whether or not Barker’s listing of debt owed to the
Credit Union was a judicial admission, it is not
sufficient to meet the Credit Union’s burden of
affirmatively filing a timely proof of claim.
The Credit Union argues first that, under the doctrine of
judicial admissions, Barker must pay all the debts she listed
in her bankruptcy schedules. The Ninth Circuit has
acknowledged the doctrine of judicial admissions. See Am.
Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.
1988). “Judicial admissions are formal admissions in the
pleadings which have the effect of withdrawing a fact from
issue and dispensing wholly with the need for proof of the
fact.” Id. (quoting Dery v. Gen. Motors Corp. (In re Fordson
Eng’g Corp.), 25 B.R. 506, 509 (Bankr. E.D. Mich. 1982)).
Judicial admissions are “conclusively binding on the party
who made them.” Id.
Although we have acknowledged this doctrine, we have
never declared that a bankruptcy schedule constitutes the
“formal admission” required for the application of the
doctrine. We need not reach this question here either. As
outlined above, a creditor who wishes to participate in a
Chapter 13 plan has an affirmative duty to file a proof of
claim. A debtor’s acknowledgment of debt in a bankruptcy
schedule—whether or not that is a judicial admission—does
not satisfy this affirmative duty. Congress chose to require
Chapter 13 creditors to file proofs of claims that demonstrate
their intent to enforce their claims; a judicial admission by a
debtor does not fulfill this strict requirement or its purpose.
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II. Barker’s listing of debt owed to the Credit Union in
her bankruptcy schedules does not constitute an
informal proof of claim.
Creditors, failing to file a timely formal proof of claim,
often assert that an informal proof of claim can function to
establish the creditor’s claims. See Cty. of Napa v.
Franciscan Vineyards, Inc. (In re Franciscan Vineyards,
Inc.), 597 F.2d 181, 183 (9th Cir. 1979). The Ninth Circuit
has two requirements for a document to qualify as an
informal proof of claim: (1) the document “must state an
explicit demand showing the nature and amount of the claim
against the estate,” and (2) the document must “evidence an
intent to hold the debtor liable.” Sambo’s Restaurants, Inc.
v. Wheeler (In re Sambo’s Rests., Inc.), 754 F.2d 811, 815
(9th Cir. 1985). Examples of an informal proof of claim are
“demands against the estate” or “correspondence between a
creditor and the trustee or debtor-in-possession which
demonstrate an intent on the part of the creditor to assert a
claim against the bankruptcy estate.” Sullivan v. Town &
Country Home Nursing Servs., Inc. (In re Town & Country
Home Nursing Servs., Inc.), 963 F.2d 1146, 1153 (9th Cir.
The Credit Union argues that Barker’s listing of debt she
owed to the Credit Union in her bankruptcy schedules
constitutes an informal proof of claim, which is sufficient to
preserve its claims. More specifically, the Credit Union
asserts that there is no requirement that the writing
establishing the informal proof of claim must come from the
The Credit Union’s argument ignores the explicit
requirement that the creditor must somehow demonstrate its
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intent to hold the debtor liable. As explained above, the filing
of a proof of claim (which evidences the creditor’s decision
to hold the debtor liable) plays an important role in Chapter
13 bankruptcy proceedings. This function applies equally to
an informal proof of claim. In order to establish an informal
proof of claim, a creditor must have taken some affirmative
action to assert its claim within the statutorily prescribed time
frame. In re Bowden, 315 B.R. at 907 (rejecting argument
that debtor’s schedules alone suffice to establish an informal
proof of claim). The Credit Union has failed to cite any legal
authority that has held that a debtor’s bankruptcy schedules
alone qualify as an informal proof of claim. Moreover, in all
of the cases the Credit Union cites in support of its position,
the creditors took some sort of affirmative action to
demonstrate their intent to enforce their claims prior to the
filing deadline. See, e.g., Fyne v. Atlas Supply Co., 245 F.2d
107, 108 (4th Cir. 1957) (“We agree that mere knowledge on
the part of the trustee or of the referee in bankruptcy as to the
existence of a claim is not sufficient basis for allowing the
filing of an amended claim nor is the listing of the claim in
the bankrupt’s schedules sufficient. Here, however, there is
much more than this.”); Scottsville Nat’l Bank v. Gilmer (In
re Pitts), 37 F.2d 227, 229 (4th Cir. 1930) (allowing late filed
claim where “the trustee conferred with the officers and the
attorney for the bank frequently with regard to matters
connected with the estate”); Clapp v. Norwest Bank Hastings,
N.A. (In re Clapp), 57 B.R. 921, 924 (Bankr. D. Minn. 1986)
(allowing late filed claim where creditor “clearly and
frequently asserted its intention to pursue its claim” in letters
to the debtor’s attorney and in interactions with the court).
Barker’s bankruptcy schedules simply do not meet either
of the prongs required to establish an informal proof of claim.
The Barker-drafted documents are not an explicit demand and
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do not demonstrate the Credit Union’s intent to hold Barker
liable for the listed debt. Accordingly, we affirm the
bankruptcy court’s conclusion that the informal proof of
claim doctrine does not apply in this case.
Barker’s listing of debt owed to the Credit Union
in her bankruptcy schedules does not constitute a
debtor’s proof of claim.
Federal Rule of Bankruptcy Procedure 3004 and 11
U.S.C. § 501(c) provide that, if a creditor does not file a
timely proof of claim, the debtor or trustee may file a proof
of claim for the creditor. The Bankruptcy Rules specifically
require that the debtor’s proof of claim be filed in the thirty
day period immediately following the creditors’ deadline to
file their proofs of claims. Fed. R. Bankr. P. 3004. In this
case, the Credit Union’s deadline to file was January 8, 2013.
Therefore, Barker, or the Trustee, had from January 9, 2013,
until February 7, 2013, to file a proof of claim on behalf of
The Credit Union argues that Barker’s bankruptcy
schedules constitute a debtor’s proof of claim. This argument
is not persuasive.
First, the bankruptcy schedules
(acknowledging the debt at issue) were not filed within the
applicable thirty-day time frame. Thus, just considering the
issue of timing, Barker’s bankruptcy schedules do not meet
the requirements of Rule 3004.
Timing aside, Barker’s bankruptcy schedules do not
qualify as a debtor’s proof of claim. Congress adopted Rule
3004 in addition to the Rules requiring Chapter 13 debtors to
file schedules of their assets and liabilities. Therefore, Rule
3004 requires that debtors make an additional showing of
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their desire to include an unasserted claim in their Chapter 13
plan after receiving notice of which creditors intend to
enforce their claims. Barker never made this additional
showing. Therefore, the filing requirements of Rule 3004
have not been satisfied, and Barker’s bankruptcy schedules
do not constitute a debtor’s proof of claim.
The principles of equity do not permit the
bankruptcy court to retroactively extend the
deadline for the Credit Union to file its proofs of
Finally, the Credit Union argues that equity favors
allowing its claims. Specifically, the Credit Union argues
that, if its claims are not allowed, it will suffer a severe loss
while the other creditors receive an undeserved windfall.
While this may be true, the Ninth Circuit has repeatedly held
that the deadline to file a proof of claim in a Chapter 13
proceeding is “rigid,” and the bankruptcy court lacks
equitable power to extend this deadline after the fact. In re
Gardenhire, 209 F.3d at 1148 (“Our precedents support the
conclusion that a bankruptcy court lacks equitable discretion
to enlarge the time to file proofs of claim; rather, it may only
enlarge the filing time pursuant to the exceptions set forth in
the Bankruptcy Code and Rules.”); In re Osborne, 76 F.3d at
308; Zidell, Inc. v. Forsch (In re Coastal Alaska Lines, Inc.),
920 F.2d 1428, 1431–33 (9th Cir. 1990); Ledlin v. United
States (In re Tomlan), 102 B.R. 790, 792, 796 (E.D. Wash.
1989), aff’d, 907 F.2d 114 (9th Cir. 1990).
Further, allowing the bankruptcy court to retroactively
extend the deadline in this case would thwart the purpose of
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The purpose of Chapter 13 is ‘to serve as a
flexible vehicle for the repayment of part or
all of the allowed claims of the debtor.’
(Emphasis added.) Sen.Rept. No. 95–989,
Pub.L. 95-598, 92 Stat. 2549, 95th Cong., 2d
Sess. (1978), p. 141, reprinted in U.S. Code
Cong. & Admin.News 1978 at 5787, 5927. In
order to effectuate this purpose, it is essential
that all unsecured creditors seeking payment
under the plan file a proof of claim. A date
certain for such filings is crucial to the ability
to determine the full extent of the debts and
evaluate the efficacy of the plan in light of the
debtor’s assets and foreseeable future
In re Tomlan, 102 B.R. at 792 (alteration in orginal).
Barker’s Chapter 13 plan will only be successful if she and
the Trustee “know, early on, what claims must be paid.” Id.
at 794 (quoting In re Goodwin, 58 B.R. 75, 77 (Bankr. D. Me.
1986)). Barker will not get the “fresh start” she seeks if
creditors are continually allowed to add additional claims far
after the deadline to file has expired. Id. (quoting In re
Goodwin, 58 B.R. at 77).
In order to participate in distributions of Barker’s assets
under her Chapter 13 plan, the Credit Union was required to
file a proof of claim by the prescribed deadline. Because the
Credit Union’s proof of claims were untimely, the bankruptcy
court properly rejected them.
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