In re Benedict
Decision Date | 25 August 1986 |
Docket Number | Bankruptcy No. 85-00727. |
Citation | 65 BR 95 |
Parties | In re Harry J. BENEDICT, Doris I. Benedict, Debtors. |
Court | U.S. Bankruptcy Court — Northern District of New York |
Warren V. Blasland, Syracuse, N.Y., Trustee.
Jaeckle, Fleischmann & Mugel, Buffalo, N.Y., for Balboa Ins. Co.; Edward P. Yankelunas, of counsel.
Goldberg, Harding & Talev, Syracuse, N.Y., for debtor; Harold P. Goldberg, of counsel.
The Trustee herein has moved to expunge a claim of Balboa Insurance Company ("Balboa"), on the ground that Balboa filed its formal Proof of Claim after the deadline established for filing the same. The facts are generally not in dispute, and the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(B) and § 1334, as well as 11 U.S.C. § 501 ("Code").
Harry J. and Doris I. Benedict ("Debtors") filed their petition for relief under Chapter 13 of the Code on September 5, 1985. The matter was converted to a case under Chapter 7 on July 2, 1986.
Balboa is an unsecured creditor of the Debtors herein by virtue of Debtors having individually agreed to indemnify Balboa for losses it sustained in connection with the issuance of a Miller Act bond to H.J. Benedict and Sons, Inc. On February 26, 1986, Balboa filed a formal Proof of Claim in the sum of $50,296.91, plus interest accrued after November 14, 1985; this figure represented Balboa's claim for indemnity based upon settlement of a claim which had been made against the bond identified above. The bar date for the filing of claims had been set as January 14, 1986.
On October 11, 1985, prior to the initial date set for the first meeting of creditors herein (October 16, 1985), Balboa filed an objection to the confirmation of the Debtors' proposed Chapter 13 Plan. The objection, served upon the Trustee and Debtors' attorney, and filed with the Court, identified Balboa as an unsecured creditor of the Debtors, and asserted objections to confirmation based upon 1) the proposed Plan's failure to meet the "Chapter 7 test" of Code § 1325(a)(4), and 2) that Debtors did not qualify for relief under Chapter 13 inasmuch as their unsecured debt was in excess of $100,000.00, contrary to Code § 109(e).
On the day prior to the date first set for the Code § 341 meeting and confirmation hearing, Balboa's attorney contacted the Trustee and discussed the objections previously filed. The Trustee indicated the confirmation hearing would be adjourned pending receipt of additional information from Debtors' attorney, and further stated he would require Debtors to amend their schedules and Plan.
The confirmation hearing was in fact adjourned, and at least seven separate telephone conversations were had between Balboa's attorney and the Trustee between October 15, 1985, and December 17, 1985, the eventual date of the confirmation hearing. At one point during these conversations, Balboa's attorney orally informed the Trustee of the amount of the claim.
The issue presented is whether Balboa's filing of an objection to confirmation within the statutory time set for filing of proofs of claim is sufficient notice so that a formal proof of claim filed after the bar date acts as an amendment thereto. An analysis of decisions within the Second Circuit indicates it does, and the Trustee's motion must be therefor denied.
Hence, while the circumstances presented herein would not substantiate a claim of ...
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In re Egan
...to be considered an informal proof of claim under the current test used by bankruptcy courts in this Circuit. SeeIn re Benedict, 65 B.R. 95, 96 (Bankr.N.D.N.Y.1986) (“[C]ertainly [Creditor]'s timely filing of the objection to Debtors' Plan sufficiently established ‘the creditor's intention ......