UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
IN RE:
STEPHEN LOUIS KINTZ
JACQUELINE ANN KINTZ
DEBTORS CASE NO. 91-21467
Chapter 13
MEMORANDUM OPINION
This matter is before the Court on the Response to Objection and Request for Submission Without Hearing filed by creditor John I. Peters, with accompanying affidavit. By Order entered April 29, 1996, this Court set aside its Order of March 28, 1996 sustaining the objection to the creditor's claim, and took under submission the matter of the Objection to Claim and the Response.
The record in this case reveals that the debtors filed their Chapter 13 petition and Plan on September 23, 1991. Mr. Peters was not listed as a creditor, and was not sent notice of the filing. The first meeting of creditors was set for November 6, 1991. The deadline to file a proof of claim was ninety days after that date, or February 4, 1992. An Order Confirming Chapter 13 Plan was entered on January 15, 1992. Mr. Peters filed a claim in the amount of $1,001.90 for legal services on February 10, 1992.
The Chapter 13 trustee filed an Objection to Claim on February 28, 1996, based on the fact that the claim had been filed more than ninety days after the first meeting of creditors. The Objection gave Mr. Peters thirty days from date of service to respond. An Order Sustaining Objection to Claim was entered on March 28, 1996. Mr. Peters filed his Response to Objection and Request for Submission Without Hearing on March 29, 1996, with an accompanying Affidavit, and the Court entered its above-referenced Order on April 29, 1996.
Mr. Peters contends that his claim should be allowed because he was not listed in the debtors' schedule of creditors, and did not receive notice of the filing of the bankruptcy. He argues that filing a proof of claim four days late constitutes excusable neglect under the circumstances, and that to deny payment on his claim when he had no notice would be a denial of due process. While Mr. Peters' late filing of his claim is understandable, the law on this subject is clear.
This Court has already ruled in In re Crooker, 159 B.R. 790 (Bkrtcy.E.D.Ky. 1993), that the Court may not accept a late-filed claim in a Chapter 13 case, and cited that ruling in In re Helton, 183 B.R. 474 (Bkrtcy.E.D.Ky. 1995):
Even if [the creditor] had never received notice of the bankruptcy filing, however, its claim would be barred. This Court has previously ruled in In re Crooker, ... , that the late-filed claim of a creditor who never received notice must be rejected. Agreeing with the decision in In re Zimmerman, 156 B.R. 192 (Bkrtcy.W.D.Mich.1993), the Court ruled that Federal Rule of Bankruptcy Procedure 3002(c) imposes a bar date against late claims. The question of discharge of such claims, however, is another matter not involved here.
At page 475. It is clear, therefore, that the Court may not accept Mr. Peters' claim and it should be disallowed. The Court notes that the discharge entered in a Chapter 13 proceeding does not discharge the debtor from debts which were not listed in time to allow the creditor a reasonable time within which to file a claim providing the creditor did not have actual and timely knowledge of the proceeding. An action to make a determination as to whether a particular claim was discharged or not is an adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7001 and no such proceeding is pending regarding this claim.
An order in conformity with this opinion will be entered separately.
Dated:
By the Court -
_________________________________
Judge
Copies to:
Debtors
John I. Peters, Esq.
Sidney N. White, Esq.
Jay T. Bosken, Esq.