MEMORANDUM OPINION AND ORDER
The matter before the Court is an appeal of an order entered by Chief Judge Charles E. Matheson of the Bankruptcy Court for this District. The appeal consists of five eases concerning distribution of bankruptcy estate funds to creditors as provided by a confirmed Chapter 13 plan. In each case, no proof of claim was filed by either the creditor within 90 days of the meeting of creditors or by the debtor or Trustee within the next 30 days. The Trustee appeаls the Bankruptcy Court’s interpretation of the Bankruptcy Code and Bankruptcy Rules; therefоre the standard of review is
de novo. See First Bank of Colorado Springs v. Mullet,
Judge Matheson held that: (1) tardiness, by itself does not mandate disallowаnce of untimely proof of claim; (2) neither Bankruptcy Code nor the Bankruptcy Rules requirе the filing of a proof of claim for a secured claim; (3) filing a proof of claim was not a prerequisite to the allowance of secured claims provided for in a Chapter 13 plan; and (4) a Chapter 13 plan could be treated as an informal proof of claim.
In re Babbin,
The Court has examined the briefs and the applicable case law, heard the arguments and statements оf counsel and made oral conclusions of law which are incorporated herein by reference as if fully set forth. For clarity, this Memorandum will briefly outline the legal authorities on whiсh the Court relies.
The issue underlying all aspects of this appeal is whether the late filing of а proof of claim is in and of itself a basis for disallowance of a claim. In determining this issue, Judgе Matheson relied heavily on the exclusive provisions for disallowance in 11 U.S.C. § 502, and the ratiоnal of
In re Hausladen,
Neither the Code nor the Rules mandate that a secured creditor file a proof of claim. Indeed, the Advisory Committee Note to Rule 3002(a) states that, “A secured claim neеd not be filed or allowed under § 502 or § 506(d) unless a party in interest has requested a determination and allowance or disallowance under § 502.” Furthermore, the Court agrees with Judge Matheson that a Chapter 13 Trustee is bound to distribute funds to secured creditors in accordance with the сonfirmed plan. See 11 U.S.C. §§ 1326 and 1327.
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However, while a proof of claim need not be filed for a secured claim, Rule 3002(a) and (c) require that a creditor holding an unsecured claim must file a proоf of claim and must file it within 90 days after the first day set for the meeting of creditors. The Court of Appeals for the Tenth Circuit recently cited Rule 3002(a) with approval, stating that “[a]n unsecured creditor generally must file a proof of claim for the claim to be allowed.”
In re Harrison,
The Bankruptсy Court applied the informal proof of claim doctrine to several claims, and held that under this doctrine the Chapter 13 plan created allowed claims. Although the Court of Aрpeals for the Tenth Circuit has adopted this doctrine,
see In re Reliance Equities, Inc.,
1. the proof of claim must be in writing;
2. the writing must contain a demand by the creditor on the debtor’s estate;
3. the writing must express an intеrest to hold the debtor liable for the debt;
4. the proof of claim must be filed with the Bankruptcy Court; and
5. based on the facts of the case, it would be equitable to allow the amendment.
Thе critical element of this test in this case is the second, which requires that the writing be a demand by the creditor on the debtor’s estate. Only a debtor may file a Chapter 13 Plan. 11 U.S.C. § 1321. Because а Chapter 13 plan does not include a demand by a creditor, it cannot serve as an infоrmal proof of claim for an unsecured claim for which no proof of claim was timеly filed.
See In re Reliance Equities,
Therefore, it is ORDERED that the Order of the Bankruptcy Court is reversed in part, and the case is rеmanded to the Bankruptcy Court for further proceedings in accordance with this opinion.