Acuity Medical International, Inc., 15-40126

Background

Involuntary Chapter 7 case began Jan. 16, 2015, when Linn Grove Angel Fund LP (Linn Grove) and two other creditors petitioned; order for relief entered Feb. 12, 2015.
Clerk set a claims bar date of Aug. 7, 2015; Linn Grove filed a proof of claim late on Aug. 13, 2015.
Trustee filed a final report (Jan. 21, 2016) proposing no distribution to Linn Grove because its claim was tardy and subordinated under 11 U.S.C. § 726(a)(3).
Linn Grove timely objected to the trustee’s final report, arguing the involuntary petition should be treated as an informal (timely) proof of claim and its late proof of claim should be treated as an amendment.
Court considered Eighth Circuit standard for informal proofs of claim (must state nature and amount and indicate intent to hold debtor liable and pursue the claim) and compared other circuits’ tests.
Court concluded the involuntary petition stated nature and amount but lacked any clear manifestation that Linn Grove intended to pursue the claim, so it was not an informal proof of claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the involuntary petition constitutes an informal proof of claim	The involuntary petition stated amount and nature and thus should be treated as an informal proof of claim (and the late proof as an amendment)	The petition does not show intent to pursue the claim; Eighth Circuit requires more than listing amount/nature	The petition failed to show intent to pursue the claim and is not an informal proof of claim; Linn Grove’s claim is tardy

Key Cases Cited

In re Michels, 286 B.R. 684 (B.A.P. 8th Cir. 2002) (Eighth Circuit BAP test requiring nature/amount and intent to hold debtor liable and pursue claim)
In re Haugen Constr. Serv., Inc., 876 F.2d 681 (8th Cir. 1989) (letter indicating need for trustee and active participation can qualify as amendable informal proof of claim)
In re Am. Classic Voyages Co., 405 F.3d 127 (3d Cir. 2005) (third‑circuit five‑part test and equitable consideration for informal claims)
In re Nikoloutsos, 199 F.3d 233 (5th Cir. 2000) (fifth‑circuit five‑part test for informal proof of claim)
In re M.J. Waterman & Assocs., Inc., 227 F.3d 604 (6th Cir. 2000) (sixth‑circuit five‑part test requiring written document filed with court)
In re Reliance Equities, Inc., 966 F.2d 1338 (10th Cir. 1992) (tenth‑circuit approach to informal claims)
In re Sambo’s Rests., Inc., 754 F.2d 811 (9th Cir. 1985) (ninth‑circuit requirement of explicit demand stating nature and amount and intent)
In re Fish, 456 B.R. 413 (B.A.P. 9th Cir. 2011) (BAP Ninth formulation of informal claim elements)
In re The Charter Co., 876 F.2d 861 (11th Cir. 1989) (eleventh‑circuit requirement to apprise court of nature/amount and intent)
In re Larson, 245 B.R. 609 (Bankr. D. Minn. 2000) (objection to confirmation can serve as informal proof by demonstrating intent to pursue claim)
In re Wilbert Winks Farm, 114 B.R. 95 (Bankr. E.D. Pa. 1990) (earlier view treating involuntary petition as informal proof in some circumstances)
In re Frink, 366 B.R. 870 (Bankr. D. Ind. 2007) (noting inconsistency among courts about what constitutes an informal proof of claim)