Chapter 17-5 Proofs of Claim

• Jurisdiction: United States

17-5 Proofs of Claim

The Federal Rules of Bankruptcy Procedure were amended in December 2017 to provide that all creditors, including a secured creditor, must file a proof of claim in Chapters 7, 11, and 13 in order to have an allowed claim.³⁴ In a Chapter 7 case, the Chapter 7 trustee sets a "claims bar date" if the trustee believes that the mortgagor has assets. Under Chapters 11 and 13, the deadline to file claims is set by statute.³⁵ The deadline to file a proof of claim is usually found on the bankruptcy case docket. The proof of claim form can be found on the United States Courts' website under Bankruptcy forms. A mortgagee who is over secured (i.e. the value of the property is more than the mortgage debt) may preserve the right to accrued interest and fees, including attorney's fees, in a proof of claim if the underlying agreement provides for these items.³⁶ A mortgagee who is under-secured (i.e. its equity in the property is worth less than the debt) may preserve the right to an unsecured deficiency claim.³⁷ In general, a mortgagee may amend a timely filed proof claim to account for a change in circumstances, provided the original proof of claim contemplates the change.³⁸ It is important to note that the manner in which a claim is filed may be considered an election of remedy and preclude the mortgagee from later taking an inconsistent position in enforcing its lien.³⁹ During 2017, the U.S. Supreme Court ruled that filing a proof of claim for a time-barred debt did not constitute a violation of the Fair Debt Collection Practices Act.⁴⁰ However, the filing of a time-barred debt can give rise to an objection to claim.

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Notes:

^[34] See Fed. R Bankr. P. 3002(a) as well as Committee Notes on Rules pertaining to the 2017 Amendment.

^[35] See Fed. R. Bankr. P. 3002(c).

^[36] 11 U.S.C. § 506(b).

^[37] In re Jackson, 482 B.R. 659, 664 (Bankr. S.D. Fla. 2012) (amended proof of claim for estimated unsecured deficiency disallowed where creditor filed a fully secured proof of claim and did not indicate any portion was unsecured); also see In re Wright, 486 B.R. 491, 506 (Bankr. D. Ariz. 2012) (creditor prohibited from receiving unsecured deficiency claim where it did not follow state law procedures required to secure deficiency claim).

^[38] In re Jackson, 482 B.R. 659, 664 (Bankr. S.D. Fla. 2012) ("In general, 'amendment is permitted only where the original claim provided notice to the court of the existence, nature, and amount of the claim and that it was...