Should I File a Proof of Claim For a Creditor Who Didn’t File a Claim?

by Peter Orville, Binghamton Bankruptcy Lawyer

March 22, 2008

Generally, if a creditor doesn’t file a proof of claim in a timely fashion in your Chapter 13 case, that creditor does not get paid. If it is a dischargeable debt, and if the creditor got proper notice of the Chapter 13, the debt will be discharged at the end of the case.

So why would you ever want to file a claim for a creditor who neglected to? One reason is if the unfiled claimis for anon-dischargeable debt. For example, if you owe a priority child support claim, and they don’t file a claim, they will not get paid in the Chapter 13. You will probably still owe them after the case is over, and the money that was earmarked to pay them will simply go to pay more to the other unsecured creditors.

Another situationis if you owe a secured debt, forexample a car loan that is supposed to be “crammed down” in the Chapter 13 plan, but the creditor does not file aproof of claim. In this case also, the carcreditor will not be paid by the trustee, and the earmarked money will go instead to the unsecured creditors. Two problems can arise.Secured creditors need not file a claim by the deadline but they still retain their secured status. If theChapter 13 completes, and they never get paid, they can then repo the car, because they haven’t been paid their secured amount. Of course, if it is 5 year plan,the car may not be worthenough for you to keep after the plan ends.

The other problem that can ariseis that the secured car creditor can file a claim(but only for the secured amount) at any time prior to the end of the case. I’ve seen it happenwhere the secured creditor files their secured claim just before the case is over. This would make the plan infeasible, and subject to dismissal by the trustee,because there is not enough time left to pay all of the claims.

Early inyour Chapter 13 case you will receive a notice to allow claims, or a notice of claims filed. It is important to carefully review the list of claims filed (and not filed) by your creditors. After you have reviewed the list, be sure to speak with your bankruptcy attorney to see if any further action is needed.

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Peter Orville is a bankruptcy lawyer in Binghamton, located in the Southern Tier of New York. He is a member and New York co-chair of the National Association of Consumer Bankruptcy Attorneys.

Last modified: March 22, 2008