Second guessing myself on a Motion filed last week.

[tigergem]

Last week I quite confidently filed a DEBTOR'S MOTION TO ADMIT LATE FILED PROOF OF CLAIM ON BEHALF OF CREDITOR INTERNAL REVENUE SERVICE.

I went round and round through all of the rules of procedure for a full day before finally decided that this motion fell under the category of "enlargement of time". It really seemed to fit, and enlargement of time requires no negative notice language under local rules, and that is the way I filed it.

For once I had no nightmares about my motion. I really thought it was solid.

Then Friday, I was having a little chat with the bankruptcy clerk about some anomalies in PACER, and the subject of this motion came up, being in 21 day suspense. I said...I thought the 21 day suspense referenced negative notice language? She said, "it does". I said "but but but"... and she said... "but enlargement of time is not what you asked for". She also said "21 day suspense is appropriate for this motion."

So based only on the clues she tossed out there, I'm thinking... dang it... that either means I should have put in 21 day negative notice language - - OR - - I should have specifically requested "enlargement of time" verbatim.

Well if requesting to admit a late filed claim as timely filed isn't basically the same thing as a request for enlargement of time, then what the heck is it? What the heck am I missing?

The way I see it, I have three choices. I can:

Amend the motion to include negative notice language (although I've been looking again, and I am still not seeing a negative notice language rule that applies to my motion in any other way than enlargement of time, which doesn't require any.)

Withdraw the motion and rewrite it more specifically as a request for enlargement of time.

Do nothing, and leave it be.

The crazy thing is, even thought I didn't find the rule re: negative notice language for motions to file claims after the bar date, it seems to me that in all the other motions to allow late claims that I've seen, none was used. But none of those were in my district, either. Been PACER fishing, and couldn't find one in my district.

Then, since I am still second guessing myself, I decided to toss it out here and see what some of the more brilliant and clearer minds think about this.

What the heck am I missing? Or am I just over thinking things again?

[justbroke]

I really don't think you need to anything. I filed two "late" claims on behalf of a secured creditor and they were in my "final" (fourth) amended plan. No questions at all.

[tigergem]

Cool. Thanks!

Did yours come up with 21 day suspense in PACER, though? Actually, that is just my motion. The claim itself, is just a claim in the claims registry, and my motion isn't linked to it.

I thought about asking here first before I drove myself crazy going through all the state and federal civil procedures again. lol. Oh well. It's always a learning experience. It's not like I didn't get anything valuable out of all the research.

I'm a little worried about the 21 day suspense and the TRCC coming up though. He hasn't filed it yet, and was more than a little perturbed with me when I emailed him that it was coming. The claim is in there, but I think the order won't go before the judge before he is required to file it. I don't know if he will approve the distribution to the IRS without that order being signed.

Although. It's clearly stated in my plan, and my plan is confirmed.

[justbroke]

No. No suspense. I really don't understand what's going on with your late filed claim. As i wrote, I've done this myself for secured creditors. A secured creditor's claim is never considered late.

However, the IRS is a priority unsecured creditor. Since you're in a Chapter 13, this poses a problem for the IRS with a late filed claim. I know you were trying to be nice, but that late filed claim may be inexcusable and could be grounds to have their claim denied and discharged. I didn't have this issue with the IRS, but the IRM specicially states that...

Chapter 13 Caution. When a liability is discovered after the governmental bar date in a Chapter 13 proceeding and Insolvency cannot cite special circumstances for its tardiness (for example, the IRS was not given timely notice of the bankruptcy filing), the late claim may be disallowed unless the Service can justify it as an amendment to a timely filed proof of claim.

If the Service does not attempt to add a liability under the above circumstances, and a discharge is subsequently granted, the liability may be discharged. However, in Chapter 13, if the Service did not receive notice and the plan does not provide for the liability, the liability should not be discharged if a late claim is not filed.

Perhaps the Judge, in your case, will have one of those sua sponte moments and decide to deny their claim!

[tigergem]

hehe. I saw that too, last week, but I thought it was too good to be true. Pretty funny. All of the regular customer service reps kept denying that they had received notice, but my personal special field agent admitted to me that oh yes they had received notice via BNC in December. It's all in my motion. Every bit of it. I documented every conversation. So I guess we'll see. lol.

And I don't know if you caught my other post about this, but I pretty much summed up my own frustration with them in my argument.

14. Pursuant to Rule 9006(b)(1) of the Bankruptcy Rules, the Court may permit a proof of claim to be filed after the bar date if the failure to file a timely claim was the result of "excusable neglect." The determination of whether the failure to file a timely claim was due to excusable neglect is an equitable one and requires consideration of all relevant facts and circumstances. Pioneer Inv. Serv. Co. v. Brunswick Associ. Ltd. P'ship, 507 U.S. 380, 388 (1993) (affirming judgment holding creditor's delay was due to excusable neglect). Thus, excusable neglect is not limited to situations where a creditor's late filing was due to circumstances beyond the creditor's control, but also encompasses situations where the omission was caused by the creditor's "inadvertance, mistake or carelessness." Id. at 388.

I'm waiting to file a motion for sanctions for violation of the stay until after I hear if their nonsense affected my potential employment contract, because that letter from Personnel Security was definitely worded as an attempt to collect, and was the second? or third? notice I received from them after I filed. "Enter into a payment arrangement", it said. Within 7 days.

By the way - - Don't ever accuse me of being nice. I didn't do it to be nice. lol. My own self centered motivations are securely intact. :-)

[tigergem]

One of the voices in my head just suggested that I should file an objection to the claim. (cue twilight zone music!) ROFL!