Proofs of Claim
| Jurisdiction | United States,Federal |
| Citation | Vol. 10 No. 1993 Pg. 2225 |
| Pages | 2225 |
| Publication year | 1993 |
1993, October, Pg. 2225. Proofs of Claim
As a general proposition, in order for a creditor to receive a distribution in a bankruptcy case, the creditor must file a proof of claim. In the last few years, a great deal of law has developed regarding the necessity for filing a proof of claim.
This article discusses preparing and filing a proof of claim for secured and unsecured creditors in Chapter 7,11 and 13 cases. In particular, the article focuses on the necessity for a proof of claim, deadlines for filing claims and recent District of Colorado and Tenth Circuit decisions. It is beyond the scope of this article to address the definition of a claim, objections to claims, administrative expense claims, priority claims or post-petition claims.
When a bankruptcy petition is filed, an estate is created.(fn1) A creditor has a claim against the estate, not the debtor. A proof of claim is the document used to assert that claim. It identifies the creditor and amount of the claim and provides supporting documentation as to the basis of the claim. If a creditor wants to be paid from the bankruptcy estate, he or she generally should file a proof of claim.
When a proof of claim is properly filed in a bankruptcy case, it is deemed "allowed" unless a party in interest objects.(fn2) A proof of claim constitutes prima facie evidence of the validity and the amount of the claim.(fn3) A claim that is "allowed" will be able to share in any distribution from the bankruptcy estate.
A proof of claim must conform substantially to the Official Form, which may be obtained from the U.S. Bankruptcy Court. It must name the creditor and the amount of the claim; list whether the claim is secured, unsecured or priority; and explain the basis for the claim. It may be executed by the creditor or by the creditor's authorized agent. If an agent executes the claim, the agent must disclose that he or she is an agent and disclose the name of the creditor. Otherwise, the proof of claim may be defective.(fn4) If the claim is based on a writing such as a contract, the original or a duplicate must be attached. Secured claims must show evidence of perfection of the security interest.
Typically, a proof of claim is filed by the creditor asserting the claim. Another party in interest, such as the debtor, the trustee or a third party that is jointly liable with the debtor on the debt to the creditor, also may file a claim on behalf of the creditor.(fn5) The debtor, trustee or other third party has until thirty days after the bar date in which to file a claim on behalf of the creditor.(fn6)
The need to file a proof of claim may vary, depending on whether the claim is unsecured or secured, and depending on the chapter under which the case is filed. In addition, the deadline for filing a proof of claim is different for each chapter.
In a Chapter 7 case, an unsecured creditor must file a proof of claim in order to participate in any distribution from the estate.(fn7) If no proof of claim is filed, the creditor will receive no distribution.
The general rule is that a lien passes through bankruptcy unaffected.(fn8) Thus, a fully secured creditor need not file a proof of claim if that creditor intends to look only to its collateral for payment of its claim. However, a secured creditor must file a proof of claim in order to preserve a deficiency claim as an unsecured claim entitled to a distribution out of the estate. If a secured creditor has filed a proof of claim stating that it is fully secured, the creditor must amend its claim to reflect the unsecured deficiency.(fn9)
The deadline for filing a proof of claim is set by Federal Rules of Bankruptcy Procedure ("F.R.B.P.") 3002. In a Chapter 7 asset case, a proof of claim must be filed within ninety days after the first date set for the § 341 meeting of creditors.
In most routine Chapter 7 cases, the trustee may determine initially that there are...
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