Phyllis Dove-Nation v. eCAST Settlement ( 2004 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 04-6049 EA
In re: *
*
Phyllis Michele Dove-Nation, *
*
Debtor. *
*
Phyllis Michele Dove-Nation, * Appeal from the United States
* Bankruptcy Court for the
Debtor - Appellant, * Eastern District of Arkansas
*
v. *
*
eCast Settlement Corporation, *
*
Claimant - Appellee. *
Submitted: December 1, 2004
Filed: December 17, 2004
Before SCHERMER, FEDERMAN and VENTERS, Bankruptcy Judges
SCHERMER, Bankruptcy Judge
Debtor Phylis Michele Dove-Nation (“Debtor”) appeals the bankruptcy court1
order overruling her objections to claims filed by eCast Settlement Corporation
(“Claimant”).2 We have jurisdiction over the appeal of a final order issued by the
bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we affirm
the order overruling the Debtor’s objections to the claims filed by the Claimant.
ISSUE
The issue on appeal is whether the bankruptcy court erred when it overruled
the Debtor’s objections to the claims based on the Claimant’s alleged failure to
comply with Federal Rule of Bankruptcy Procedure 3001(c). This issue has recently
been raised by debtors’ attorneys in various courts with mixed results.3 We conclude
that the bankruptcy court did not err in overruling the objections.
BACKGROUND
The Debtor filed a voluntary petition for relief under Chapter 13 of the United
States Bankruptcy Code (“Bankruptcy Code”) on October 22, 2003. In her schedules,
the Debtor listed a nonpriority unsecured credit card debt to Exxon/ Mobil in the
1
The Honorable James G. Mixon, United States Bankruptcy Judge for the
Eastern and Western Districts of Arkansas.
2
Technically, the Debtor did not appeal the order overruling her objections
to claims. Rather, she appealed a later order denying her motion to alter or amend
the order overruling her objections to the claims. This issue is discussed later in
the opinion.
3
For cases involving similar claims filed by the Claimant, see, e.g.,
In re Cluff, 313 B.R. 323 (Bankr. D. Utah 2004), and In re Hughes, 313 B.R. 205
(Bankr. E.D. Mich. 2004), overruling objections to the Claimant’s claims, and
In re Henry, 311 B.R. 813 (Bankr. W.D. Wash. 2004), striking the Claimant’s
claim while granting the Claimant thirty days to file an amended claim.
2
amount of $1,256.00 and a nonpriority unsecured credit card debt to Providian
Financial in the amount of $2,024.00. The Debtor did not list either of these
obligations as contingent, unliquidated, or disputed.
On January 19, 2004, the Claimant filed a nonpriority unsecured claim in the
amount of $1,278.10 as assignee of General Electric/Exxon Mobil (“Claim Number
8") and a nonpriority unsecured claim in the amount of $2,008.65 as assignee of
Providian National Bank (“Claim Number 9"). Each claim was signed by an
attorney/agent for the Claimant and each included a single-page attachment entitled
“Accounting Summary” which listed the Debtor’s name, address, and last four digits
of her social security number; the bankruptcy case number, filing date, and chapter;
the last four digits of the account number and the account type which was listed as
credit card for each; the balance at filing date; and a paragraph explaining that the
account information was derived from the account database of the assignor and other
sources including the bankruptcy court and that the assignor has verified that the
balance recorded thereon is the outstanding balance of the account as of the close of
business on the business day immediately preceding the bankruptcy filing date. In
addition, paragraph 8 of each claim stated as follows:
8. SUPPORTING DOCUMENTS: Itemized monthly statements
of account were mailed to the debtor pre-petition; claimant
maintains copies of said statements on microfilm or image
processing and reproduction of same absent a dispute as to the
balance would be unduly time consuming and burdensome;
nevertheless, where an interested party so requests, claimant will
search its records to provide copies of said month accounts (sic)
statements. To request further documentation please call Becket
& Lee LLP at 1-800-###-#### and ask to speak to the Claims
Servicing Supervisor. Claim may include contractual interest
and/or late charges.
3
On March 23, 2004, the Debtor filed an objection to each claim, asserting the
following grounds with respect to each claim: (1) the documentation does not comply
with Federal Rules of Bankruptcy Procedure 3001 or 3002 nor with the instructions
on the Proof of Claim Form B10; (2) the Claimant did not attach the original or
duplicate of the writing with the proof of claim nor allege that it was lost or
destroyed; and (3) the Claimant failed to file as an exhibit all the documents which
support the claim.
On April 2, 2004, the Debtor amended her Schedule F to list the obligations to
Exxon/Mobil and to Providian Financial as disputed. In response to the claim
objections, the Claimant filed amended claims. Claim Number 8 was amended by
Claim Number 11 which included documentation evidencing the Claimant’s purchase
of the claim from GE. Claim Number 9 was amended by Claim Number 12 which
included documentation evidencing the Claimant’s purchase of the claim from
Providian and the Debtor’s monthly account statements for September, October, and
November, 2003.
The bankruptcy court conducted a hearing on the Debtor’s objections to the
claims on May 28, 2004. In support of its claim objections, the Debtor called an
attorney for the Chapter 13 Trustee who testified about a blank proof of claim form,
the instructions for the proof of claim form, and the committee notes to the proof of
claim form. The attorney also testified that the Chapter 13 Trustee’s office reviewed
the claims and found no reason to object to them. The Debtor presented no other
evidence. The court overruled the objections to the claims. The court entered its
order overruling the objections on June 9, 2004 (“June Order”). On June 16, 2004,
the Debtor filed a motion to alter or amend the June Order. The court denied the
motion to alter or amend by order dated August 13, 2004 (“August Order”). The
Debtor filed her notice of appeal of the August Order on August 19, 2004.
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By appealing the August Order, the Debtor has technically only appealed the
issue of whether the court abused its discretion in denying the motion to alter or
amend. The Debtor should have filed a notice of appeal of the June Order. She could
have accomplished this by mentioning the June Order in the notice of appeal. The
notice of appeal was timely as to the June Order because the motion to alter or amend
the June Order extended the deadline to appeal the June Order. Fed. R. Bankr. P.
8002(b). Despite her failure to mention the June Order in the notice of appeal, the
Debtor’s brief on appeal addresses the merits of the June Order and not the August
Order. The Claimant’s brief likewise addresses the June Order and does not address
the infirmity of the notice of appeal as it relates to the June Order. Consequently, we
shall address the merits of the June Order in this opinion. However, we caution
counsel to be more careful in drafting notices of appeal in the future.
STANDARD OF REVIEW
We review the bankruptcy court’s findings of fact for clear error and its
conclusions of law de novo. Fed. R. Bankr. P. 8013; Halverson v. Estate of Cameron
(In re Mathiason), 16 F.3d 234, 235 (8th Cir. 1994); On-Line Services Ltd, L.L.C. v.
Bradley & Riley, PC (In re Internet Navigator, Inc.), 301 B.R. 1, 2 (B.A.P. 8th Cir.
2003); White v. Coors Distrib. Co. (In re White), 260 B.R. 870, 874 (B.A.P. 8th Cir.
2001); Kimmons v. Innovative Software Designs, Inc. (In re Innovative Software
Designs, Inc.), 253 B.R. 40, 44 (B.A.P. 8th Cir. 2000); Cnsumers Realty & Dev. Co.,
Inc. v. Goetze (In re Consumers Realty & Dev. Co., Inc.), 238 B.R. 418, 422 (B.A.P.
8th Cir. 1999). In the instant case the facts are not in dispute. The sole issue on
appeal is a legal issue which we review de novo.
DISCUSSION
In the bankruptcy context, a claim is any right to payment. 11 U.S.C. § 101(5).
A creditor includes any entity which has a claim against the debtor that arose at or
5
prior to the entry of the order for relief under the Bankruptcy Code. 11 U.S.C.
§101(10)(A). A creditor may file with the bankruptcy court a proof of its claim
against a debtor. 11 U.S.C. § 501(a). In the event the creditor does not timely file a
proof of claim, the debtor or another entity who is also liable on that claim may file
a proof of the claim. 11 U.S.C. § 501(b) and (c). A claim, proof of which is filed
pursuant to Section 501 of the Bankruptcy Code, is deemed allowed unless a party
in interest objects. 11 U.S.C. § 502(a). If an objection to a claim is filed, the court
shall determine the amount of such claim as of the date of the bankruptcy petition and
shall allow such claim in such amount except to the extent that any of nine
enumerated exceptions apply. 11 U.S.C. § 502(b)(1)-(9). Section 502(b) sets forth
the sole grounds for objecting to a claim and directs the court to allow the claim
unless one of the exceptions applies. In the instant case, the Debtor concedes that
none of the exceptions applies. Therefore, the claim is allowed.
The Debtor, however, asserts that the clear and unambiguous language of the
Bankruptcy Code is modified by the Federal Rules of Bankruptcy Procedure which,
according to the Debtor, provide the Debtor with additional grounds to object to a
claim. According to the applicable rules, a proof of claim is a written statement
setting forth a creditor’s claim. Fed. R. Bankr. P. 3001(a). A proof of claim shall
conform substantially to the appropriate official form. Id. When a claim is based on
a writing, the original or a duplicate shall be filed with the proof of claim. Fed. R.
Bankr. P. 3001(c). If the writing has been lost or destroyed, a statement of the
circumstances of the loss or destruction shall be filed with the claim. Id. A proof of
claim executed and filed in accordance with the rules shall constitute prima facie
evidence of the validity and amount of the claim. Fed. R. Bankr. P. 3001(f).
An unsecured creditor must file a proof of claim for the claim to be allowed in
a Chapter 13 case unless the debtor, the trustee, or another entity that may also be
liable to the creditor files a proof of claim with respect to the claim. Fed. R. Bankr.
P. 3002(a). In a Chapter 7, 12, or 13 case, a proof of claim is timely if it is filed no
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later than 90 days after the first date set for the meeting of creditors under Section
341(a) of the Bankruptcy Code. Fed. R. Bankr. P. 3002(c). Several exceptions to this
deadline exist, none of which is applicable in the present case. Fed. R. Bankr. P.
3002(c)(1)-(5).
The Debtor argues that a claim may be disallowed for failure to attach the
original or duplicate writing upon which the claim is based as required by Fed. R.
Bankr. P. 3001(c) and the directions contained in paragraph 8 of the Official Proof
of Claim Form. Paragraph 8 of the Official Proof of Claim Form states as follows:
8. Supporting Documents: Attach copies of supporting documents,
such as promissory notes, purchase orders, invoices, itemized
statements of running accounts, contracts, court judgments,
mortgages, security agreements, and evidence of perfection of
lien. DO NOT SEND ORIGINAL DOCUMENTS. If the
documents are not available, explain. If the documents are
voluminous, attach a summary.
The Debtor’s argument attempts to place form over substance and elevate the
status of rules to override the clear language of the Bankruptcy Code. The rules are
designed to supplement the statute, not replace it. 28 U.S.C. § 2075.4
Furthermore, the rules and instructions upon which the Debtor relies acknowledge
some variance from the Debtor’s stringent reading of select language. For example,
Rule 3001(a) acknowledges that a proof of claim need only conform substantially to
the appropriate official form. It need not conform exactly. Rule 3001(c), which
requires the attachment of the writing, excuses such attachment if the writing has
been lost or destroyed. Likewise, the instructions on the official form instruct the
4
“The Supreme Court shall have the power to prescribe by general rules, the
forms of process, writs, pleadings, and motions, and the practice and procedure in
cases under [the Bankruptcy Code]. Such rules shall not abridge, enlarge, or
modify any substantive right.” 28 U.S.C. § 2075.
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claimant to explain if the documents are not available and to attach a summary if the
documents are voluminous.
In the instant case, the Claimant complied substantially with the rules and the
instruction on the proof of claim form. The Claimant identified the claims almost to
the exact dollar amounts listed by the Debtor in her schedules, attached summaries
of the claims, provided explanations why additional documentation was not attached,
and provided instructions to request additional documentation if desired. The claims
complied with the spirit of the applicable rules and as such constituted prima facie
evidence of the validity and amount of the claims. Fed. R. Bankr. P. 3001(f).
However, even if the claims had not substantially complied with Rule 3001, the
claims are still allowed claims under Section 502 of the Bankruptcy Code unless the
Debtor establishes an exception under Section 502(b). 11 U.S.C. § 502(a) and (b).
A proof of claim is allowed unless someone objects to it. If the proof of claim
conforms with the rules it constitutes prima facie evidence of the claim. The burden
of proof then shifts to the objector to establish that the claim fits within one of the
exceptions set forth in Section 502(b) of the Bankruptcy Code. 11 U.S.C. §
502(b)(1)-(9); Innovative Software Designs, Inc., 253 B.R. at 44; Consumers Realty
& Dev. Co, Inc., 238 B.R. at 422-23. Even if the proofs of claim are not entitled to
prima facie validity, they are some evidence of the Claimant’s claims. Cluff, 313 B.R.
at 340. Here, the Debtor never presented any evidence to contradict the claims, much
less any evidence that the claims fall within one of the exceptions set forth in Section
502(b); therefore, the claims’ validity stands.
Had the Debtor presented any evidence supporting an objection to the claim,
the ultimate burden of persuasion would have shifted to the Claimant to establish its
entitlement to the claims. At that point, the Debtor’s original schedules, signed under
oath, admitting liability on the Exxon/Mobil credit card in the amount of $1,256.00
and liability on the Providian Financial credit card in the amount of $2,024.00, would
have been additional evidence supporting the claims, with the Claimant bearing the
burden of explaining the differences between the amounts scheduled by the Debtor
and the amounts listed by the Claimant.5 Had the Debtor presented the amended
5
With respect to the Exxon/Mobil account, the amount sought by the
Claimant exceeded the amount scheduled by the Debtor by $22.10. With respect
to the Providian Financial account, the amount sought by the Claimant was $15.35
8
schedules which did not change the amounts of the debts but listed them as disputed,
the Court would have evaluated the credibility of the Debtor in light of the
inconsistent statements, taking into account the timing of the amendment.
The Debtor argues by analogy that claims may be objected to as tardy even
though such a basis is not enumerated in Section 502(b) of the Bankruptcy Code.
Ergo, according to the Debtor, the rules supplement the grounds for disallowance of
a claim set forth in Section 502(b). The Debtor’s argument is misguided. It is true
that the rules rather than the statute establish whether a claim is timely or tardy. Fed.
R. Bankr P. 3002(c). However, the concept of tardiness is recognized in the Code.
11 U.S.C. § 726(a)(2)(C) and (3). Furthermore, tardiness does not affect the
allowance of the claim; rather, it affects the treatment to which the allowed claim is
entitled. For example, Section 726 specifies when tardily filed claims shall receive
distributions in a Chapter 7 case. 11 U.S.C. § 726(a)(2)(C) and (3). Such language
has implications in a Chapter 13 case because the plan must provide creditors with
at least as much as they would receive in a hypothetical liquidation under Chapter 7.
11 U.S.C. § 1325(a)(4).
The Debtor’s argument flies in the face of the rule of construction which
requires us to apply the plain meaning of any unambiguous statutory language.
Lamie v. U. S. Trustee, 540 U.S. 526, 124 S. Ct. 1023, 1030 (2004); U.S. v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 241-42, 109 S. Ct. 1026, 1030 (1989). The
Bankruptcy Code could not be more clear: a claim, proof of which is filed, shall be
allowed unless it falls within one of the exceptions set forth in Section 502(b). The
Claimant filed proofs of claims and the Debtor failed to allege much less present any
evidence that the claims fell within one of the exceptions. Consequently, the claims
were properly allowed.
CONCLUSION
Section 502 of the Bankruptcy Code governs the allowance and disallowance
of claims filed against bankruptcy estates. Neither procedural rules nor instructional
language on official forms overrides clear statutory language. Therefore, the court
less than the amount scheduled by the Debtor.
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properly overruled the Debtor’s objections to claims based solely on grounds not
recognized by Section 502 of the Code. Accordingly, we AFFIRM the bankruptcy
court order overruling the Debtor’s objections to the Claimant’s claims.
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