In re Marcella Lee Barker, AKA Marci Barker, AKA Marci Vanni Barker, Debtor, Spokane Law Enforcement Federal Credit Union, Appellant,
v.
Marcella Lee Barker; Robert Drummond, Chapter 13 Trustee; Ocwen Loan Servicing, LLC, Appellees.
Appeal
from the Ninth Circuit Bankruptcy Appellate Panel Pappas,
Kurtz, and Jury, Bankruptcy Judges, Presiding BAP No. 13-1393
Argued
and Submitted October 3, 2016 Seattle, Washington
Quentin M. Rhoades (argued) and Francesca di Stefano,
Sullivan Tabaracci & Rhoades P.C., Missoula, Montana, for
Appellant.
Robert
Drummond (argued), Great Falls, Montana; Kraig C. Kazda,
Kazda Law Firm P.C., Great Falls, Montana; for Appellees.
Before: William A. Fletcher, Ronald M. Gould, and N. Randy
Smith, Circuit Judges.
SUMMARY[*]
Bankruptcy
The
panel affirmed the Bankruptcy Appellate Panel's
affirmance of the bankruptcy court's decision to disallow
a creditor's late-filed claims in a Chapter 13
proceeding.
Agreeing
with the Seventh Circuit, the panel held that if a creditor
wishes to participate in the distribution of a debtor's
assets under a Chapter 13 plan, it must file a timely proof
of claim under Federal Rule of Bankruptcy Procedure 3002. The
debtor's acknowledgment of debt owed to the creditor in a
bankruptcy schedule does not relieve the creditor of this
affirmative duty.
OPINION
N.R.
SMITH, Circuit Judge
If a
creditor wishes to participate in the distribution of a
debtor's assets under a Chapter 13 plan, it must file a
timely proof of claim. The debtor's acknowledgment of
debt owed to the creditor in a bankruptcy schedule does not
relieve the creditor of this affirmative duty.
BACKGROUND
FACTS
On
September 6, 2012, debtor Marcella Lee Barker filed a Chapter
13 bankruptcy petition in the United States Bankruptcy Court
for the District of Montana. Later that day, in response to
the filed petition, the bankruptcy court issued an Official
Form B9I, titled "Notice of Chapter 13 Bankruptcy Case,
Meeting of Creditors, & Deadlines"
("Notice"). The Notice stated that the deadline for
creditors[1]to file a proof of claim was January 8,
2013. On September 8, 2012, the Bankruptcy Noticing Center
sent the Notice to the Appellee, Spokane Law Enforcement
Federal Credit Union ("Credit Union"), by first
class mail. On September 19, 2012, Barker timely filed her
Chapter 13 plan with the bankruptcy court.[2] According to her
attached certificate of mailing filed with the court, the
plan was also sent to the Credit Union that day via first
class mail.
On
September 19, 2012, Barker also properly filed schedules of
her assets and liabilities.[3] In these schedules, Barker listed
the Credit Union as a secured creditor holding a $6, 646.00
purchase money security interest in a 2004 Ford F-150. Barker
also listed the Credit Union as an unsecured creditor holding
a $47, 402.00 claim that had previously been secured by an
unidentified automobile, which Barker's ex-husband had
sold.
Barker
moved to amend and modify the Chapter 13 plan several times
over the next few months. Each time such a motion was filed,
Barker sent a notice to the Credit Union. In addition, each
time the bankruptcy court entered an order confirming the
amended plan, the Bankruptcy Noticing Center notified the
Credit Union.
On May
30, 2013, more than four months after the deadline to file a
proof of claim expired, the Credit Union filed three claims
with the bankruptcy court: a secured claim for $5, 490.78 and
unsecured claims for $28, 293.94 and $24,
587.47.[4] In accordance with the Local Bankruptcy
Rules for the United States Bankruptcy Court for the District
of Montana, the Trustee sent a "Notice of Late Filed
Claims" to the Credit Union on June 7,
2013.[5] On June 10, 2013, the Credit Union
requested a hearing "to contest the tardy
response." In this request, the Credit Union asserted
that the claims were belated, because a "disgruntled
employee" failed to timely file the claim. On July 31,
2013, the Credit Union filed a formal motion with the
bankruptcy court requesting the court to allow the three
claims. The court held a hearing on the matter on August 2,
2013. The court denied the Credit Union's motion and
disallowed the claims because the proofs of claims were not
timely filed.
On
August 12, 2013, the Credit Union filed a notice of appeal
with the bankruptcy court, and the appeal was taken to the
Ninth Circuit Bankruptcy Appellate Panel ("BAP").
On March 28, 2014, the BAP affirmed the bankruptcy
court's decision to disallow the late filed claims. On
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