The Municipality of Carolina (the “Municipality”) appeals from the bankruptcy court’s denial of its motion to set aside a previous order disallowing a claim filed on its behalf by Shannon Leigh Baker Gonzalez (the “Debtor”) pursuant to 11 U.S.C. § 501(c) and Fed. R. Bankr.P. 3004.
BACKGROUND
The Debtor filed a chapter 13 petition in October 2010. On her Schedule E, the Debtor listed the Municipality as an unsecured creditor with a priority claim for municipal taxes in the amount of $760.28. The Debtor’s chapter 13 plan, as amended, provided for the payment of priority claims of certain creditors, including the Municipality. The plan was confirmed in May 2011.
Shortly after the bankruptcy filing, the bankruptcy court issued a “Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines” (the “Bar Date Notice”), notifying creditors and parties in interest that the deadline for filing proofs of claim was February 28, 2011, for nongovernmental creditors, and April 25, 2011, for governmental units. The clerk of the bankruptcy court served the Bar Date Notice on the Municipality by first-class mail at its correct address.
The Municipality, a governmental unit, never filed a proof of claim, and, on June 7, 2011, the Debtor filed a proof of claim asserting an unsecured priority claim in the Municipality’s name in the amount of $760.28 (the “Claim”).
Almost ten months later, on May 8, 2012, the Municipality filed a motion (the “Rule 60(b) Motion”) to set aside the Claim Order pursuant to Bankruptcy Rule 9024, which makes Fed.R.Civ.P. 60(b) (“Rule 60(b)”) applicable to bankruptcy proceedings. Without identifying a particular subsection of Rule 60(b), the Municipality argued that, although § 501(c) gives a debtor authority to file a proof of claim on behalf of a creditor, the Debtor should not have been allowed to file a proof of claim on its behalf when she knew she was filing the Claim after the bar date, and that the Claim would likely be disallowed. Accordingly, the Municipality moved the bankruptcy court to vacate its order disallowing the Claim, thereby permitting the late filing of the Claim by the Debtor.
In response, the Debtor argued that the bankruptcy court should deny the Rule 60(b) Motion because the Municipality was included on her schedules as an unsecured priority creditor, was duly notified of the case, and never filed a claim. The Trustee also filed a response, arguing that the Rule 60(b) Motion should be denied because: (1) the Municipality had not met the strict and narrow criteria set forth in Rule 60(b) to reconsider the Claim Order; and (2) the Debtor’s filing of the Claim on the Municipality’s behalf was time-barred and, as such, should remain disallowed. The Trustee also observed that the Municipality’s position was not clear: “[0]n one hand it seems to object to the filing of the claim by debtor on their behalf by alleging it was ‘not authorized’, and on the other[,] creditor is requesting the allowance of the claim.”
On August 24, 2012, the bankruptcy court, without a hearing, entered an order (the “Rule 60(b) Order”), stating without further explanation:
For [the] reasons stated in the Trustee’s motion filed on Docket No. 81, the Municipality de Carolina’s untimely motion to set aside order (docket # 54) is hereby denied.
The Municipality filed a notice of appeal with respect to the Rule 60(b) Order.
JURISDICTION
Before addressing the merits of an appeal, the Panel must determine that it has jurisdiction, even if the issue is not raised by the litigants. Garcia Matos v. Oliveras Rivera (In re Garcia Matos),
I. Scope of Appeal
In its notice of appeal, the Municipality indicated that it was appealing the Rule 60(b) Order. Thus, from the face of the notice of appeal, only the Rule 60(b) Order is subject to review, not the underlying Claim Order. In its opening brief, however, the Municipality challenges not only the denial of the Rule 60(b) Motion, but also the underlying Claim Order. According to the Municipality, “[a] timely appeal of an order denying relief [under Rule 60(b) ] is deemed also timely as to the underlying order.” The Trustee also identifies the Claim Order as one of two orders
In some circumstances, the Panel has construed a notice of appeal that only names the post-judgment order as encompassing both the post-judgment order and the judgment itself, especially when it is clear that the appellant intended to appeal both orders, and where both parties brief issues relating to the underlying judgment. See Bellas Pavers, LLC v. Stewart (In re Stewart), No. MB 12-017,
Those cases are distinguishable, however, because they involved appeals of Rule 59(e) motions, and the timely filing of the respective Rule 59(e) motions tolled the appeal period for the underlying orders. Where a party does not file a timely notice of appeal from a final order, and instead files a Rule 60(b) motion for relief from the order, an appellate court’s jurisdiction does not extend to a review of the underlying order. See Haddock Rivera v. ASUME (In re Rivera),
II. Finality
The Panel has jurisdiction to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.),
STANDARD OF REVIEW
Appellate courts apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See Lessard v. Wilton-Lyndeborough
DISCUSSION
I. Applicable Law
The Code and Bankruptcy Rules govern the requirements for the filing and allowance of proofs of claim. To determine whether a tardily filed claim can be allowed, courts must first determine whether the claim was properly filed under § 501. Section 501 identifies the parties who have a substantive right to file a claim, and it also addresses the timeliness of the filing. Section 501(a) provides that any creditor may file a proof of claim. 11 U.S.C. § 501(a). Section 501(e) provides that “[i]f a creditor does not timely file a proof of such creditor’s claim, the debtor or the trustee may file a proof of such claim.” 11 U.S.C. § 501(c).
Section 502 provides in pertinent part:
(a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects.
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that — ...
(9) proof of such claim is not timely filed, except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) of this title or, under the Federal Rules of Bankruptcy Procedure, except that a claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for relief or such later time as the Federal Rules of Bankruptcy Procedure may provide, and except that in a case under chapter 13, a claim of a governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on or before the date that is 60 days after the date on which such return was filed as required.
11 U.S.C. § 502(a) and (b)(9). Pursuant to these provisions, once the bankruptcy court determines that the claim meets the requirements of § 501, the court must then determine whether the claim should be allowed. Section 502(a) provides that a claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). If a party in interest does object, the bankruptcy court must determine if the claim is to be allowed.
Section 502(b) enumerates a variety of grounds for disallowance, including that “proof of such claim is not timely filed, except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) of this title or under the Federal Rules of Bankruptcy Proce
If an unsecured creditor’s claim is to be allowed in a chapter 13 case, a proof of claim must be filed. Fed. R. Bankr.P. 3002(a). To be timely, a governmental entity’s proof of claim must be filed within 180 days after the order for relief. Fed. R. Bankr.P. 3002(c)(1).
Section 502© of the Bankruptcy Code further provides: “A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case_” 11 U.S.C. § 502(j); see Fed. R. Bankr.P. 3008 (“A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hear
Bankruptcy Rule 9006, in conjunction with Bankruptcy Rule 3002(c), precludes the filing of an untimely proof of claim in chapter 7 and chapter 13 cases, except in very limited circumstances.
II. Analysis
The import of the Code and Rules could not be more clear: reconsideration of the disallowance of the proof of claim filed by the Debtor on the Municipality’s behalf is unwarranted as the Municipality failed to establish any legally cognizable grounds for reconsideration of the disal-lowance of the Claim filed on its behalf.
Because the Municipality undisputedly had notice and an opportunity to file a proof of claim and failed to do so, its Claim is disallowed pursuant to § 502(b)(9) and Bankruptcy Rule 3002(a). See Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval),
[T]he filing of a proof of claim is not required by the Bankruptcy Code; however, a creditor’s failure to timely file a proof of claim may affect its rights under the plan — namely, its ability to participate in the distribution of funds according to the plan. See also 11 U.S.C. § 502(b)(9). “A creditor who elects not to file a claim elects also not to be paid under the plan.” ... “The principal consequence of failing to file a proof of claim is that the creditor cannot have an allowed claim, and if it cannot have an allowed claim, then it will not be entitled to distributions under the plan.”
Id. (citations omitted). In Lawrence Tractor Co. v. Gregory (In re Gregory),
Although the Debtor filed a Claim on the Municipality’s behalf, she did so in an untimely manner, resulting in disallowance of the Claim. Notably, “[s]ince the amended Rule 3004 took effect ... the courts have strictly construed the bar date of Rule 3004, as they have other bar dates in bankruptcy.” In re Ford,
Reconsideration of a claim under § 502(j) is a two-step process: (1) a showing of cause for reconsideration; and (2) a determination of the claim according to the equities of the case. In re Tri-State Ethanol Co., LLC, No. 03-10194,
Cause as required by § 502(j) is not defined. Instead, the bankruptcy court is given wide discretion in determining what constitutes adequate cause for the reconsideration of a claim. Id. at *7 (citing In re Smith,
The Municipality did not demonstrate that relief from the Claim Order was justified for cause under § 502(j). Although the Municipality argues that the equities weigh in favor of “reinstating the claim,” there can be no basis for reconsideration of an order disallowing a claim according to the equities of the case without cause. Jones,
Rule 60(b), made applicable to bankruptcy proceedings pursuant to Bankruptcy Rule 9024, provides that a party may seek relief from judgment for certain reasons, including: “mistake, inadvertence, surprise, or excusable neglect,” Fed.R.Civ.P. 60(b)(1), or “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). As noted above, the Municipality did not identify a specific subsection in its Rule 60(b) Motion, simply stating: “This motion is filed under [Bankruptcy Rule] 9024[sic], which permits a motion for reconsideration or relief of [sic] an order of the court disallowing a claim against the estate, on grounds, among others, of mistake or misrepresentation or any other reason that justifies relief.” However, the word “mistake” suggests the
Bankruptcy courts have broad discretion in deciding motions for relief under Rule 60(b), and the denial of a Rule 60(b) motion should be reviewed with “the understanding that relief under Rule 60(b) is extraordinary in nature and that motions invoking that rule should be granted sparingly.” Karak v. Bursaw Oil Corp.,
The Municipality has failed to establish that the bankruptcy court erred in denying its Rule 60(b) Motion. Granting the motion for reconsideration would have been an “empty exercise,” as the Municipality failed to establish any grounds whatsoever for reconsideration of the disallowance of Debtor’s untimely Claim filed on its behalf.
CONCLUSION
Accordingly, the order of the bankruptcy court is AFFIRMED.
Notes
. All references in the text of this opinion to a section of the “Code” shall refer to the Bankruptcy Code, 11 U.S.C. § 101 et seq. All references to a "Bankruptcy Rule” shall be to the Federal Rules of Bankruptcy Procedure.
. As noted above, the proof of claim bar date for governmental units was April 25, 2011. The bar date for filing a proof of claim on behalf of the Municipality by either the Debt- or or the Trustee pursuant to Bankruptcy Rule 3004 would have been May 25, 2011. Thus, the Claim filed on the Municipality’s behalf by the Debtor was 13 days late.
. The notice of appeal provided:
The Municipality of Carolina, a creditor of debtor, hereby appeals from the Order of the bankruptcy judge entered in the captioned bankruptcy proceedings on August 24, 2012, Doc. # 86, denying a motion of the Municipality of Carolina, Doc. 54, to set aside a previous order disallowing a claim of this Municipality, Doc. 51.
. Bankruptcy Rules 3002 and 3004 implement the provisions of the Bankruptcy Code. Bankruptcy Rule 3002 provides in pertinent part:
(a) Necessity for filing An unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005.
(c) Time for filing
In a chapter 7 liquidation, chapter 12 family farmer’s debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code, except as follows:
(1) A proof of claim filed by a governmental unit, other than for a claim resulting from a tax return filed under § 1308, is timely filed if it is filed not later than 180 days after the date of the order for relief. A proof of claim filed by a governmental unit for a claim resulting from a tax return filed under § 1308 is timely filed if it is filed no later than 180 days after the date of the order for relief or 60 days after the date of the filing of the tax return. The court may, for cause, enlarge the time for a governmental unit to file a proof of claim only upon motion of the governmental unit made before expiration of the period for filing a timely proof of claim.
Fed. R. Bankr.P. 3002.
. Bankruptcy Rule 9006 provides, in pertinent part, the following:
(b) Enlargement
(1)In general
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
(2) Enlargement not permitted
The court may not enlarge the time for taking action under Rules 1007(d), 2003(a) and (d), 7052, 9023, and 9024.
(3) Enlargement governed by other rules The court may enlarge the time for taking action under Rules 1006(b)(2), 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 4008(a), 8002, and 9033, only to the extent and under the conditions stated in those rules. In addition, the court may enlarge the time to file the statement required under Rule 1007(b)(7), and to file schedules and statements in a small business case under § 1116(3) of the Code, only to the extent and under the conditions stated in Rule 1007(c).
Fed. R. Bankr.P. 9006(b) (emphasis supplied).
. The First Circuit has defined “excusable neglect” as "a failure to timely perform a duty due to circumstances which were beyond the reasonable control of the person whose duty it was to perform.” Eck v. Dodge Chem. Co. (In re Power Recovery Sys., Inc.),
Our evaluation of what constitutes excusable neglect is an equitable determination, taking into account the entire facts and circumstances surrounding the party’s omission, including factors such as the danger of prejudice to the non-movant, the length of the delay, the reason for the delay, and whether the movant acted in good faith.
Davila-Alvarez v. Escuela de Medicina Univ. Central del Caribe,