UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

FRANKFORT DIVISION

 

IN RE:

KIMBERLY D. SKIRVIN CASE NO. 97-30668

DEBTOR

OPINION AND ORDER

This matter is before the Court upon the Objection to the Claim of creditor, National City Bank, filed herein by the Chapter 13 trustee. A Response was filed by the creditor challenging the Objection and the matter was heard before the Court on June 10, 1998 and submitted to the Court for a decision.

A review of the record reveals that March 10, 1998 was the last day for filing claims pursuant to the notice to creditors herein, and FRBP 3002(c). That date is 90 days after the first meeting of creditors pursuant to the terms of that Rule and the notice to creditors mailed on November 6, 1997. The name of National City Bank did not appear on the initial schedules or mailing matrix and it was only by an amendment to schedules and the matrix that National City was added as a creditor. National City has objected to the validity of the amendment to add it as a creditor since the amended schedules were not signed by the debtor but by the attorney for the debtors. That amendment was served on all creditors including, presumably, National City Bank, on February 10, 1998 by the attorney for the debtor herein in accordance with the certification thereon. It was filed with the Court on February 17, 1998.

The creditor cites United States v. Cardinal Mine Supply, 916 F.2d 1087 (6th Cir. 1990) and Internal Revenue Service v. Century Boat Company, 986 F.2d 154 (6th Cir. 1993) as authority for its late filed claim herein. A review of those cases indicates that, in both cases, the claim involved was a priority claim. They appear clearly to establish an exception for a late filed priority claim but do not appear to apply to unsecured claims, such as that of National City herein, in Chapter 13 proceedings.

On two previous occasions, this Court has considered the matter of late filed claims in Chapter 13 proceedings. In re Crooker, Case No. 92-20928 and In re Helton, Case No. 94-20507. Copies of opinions in both cases are attached hereto. This Court specifically adopts the reasoning used earlier in those cases and holds that where, as here, the notice to the creditor added to the schedules was mailed to the creditor some 28 days prior to the expiration of the filing period, that time is adequate to allow the filing of a claim by the March 10, 1998 deadline.

With regard to the creditor=s arguments that the failure of the debtors to sign the amendments to the schedules adding this creditor, a violation of FRBP 1008, does not make inadequate the notice to the creditor to alert it to the need to file a claim in a Chapter 13 proceeding. For the foregoing reasons, it is hereby

ORDERED that the Objection of the trustee to the claim of National City Bank be, and the same hereby is, SUSTAINED.

Dated this ____ day of June, 1998.

BY THE COURT

__________________________________

JUDGE

COPIES TO:

Debtor

John L. Day Jr., Esq.

Sidney N. White, Esq.