The Law Offices of Ken McCartney P.C.

Proof of Claim

 

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Many thousands of dollars are lost each year by creditors of asset bankruptcy estates simply because they do not file a claim form. Perhaps the form itself is foreboding enough to cause this lapse. In all chapters, payouts are made from a bankruptcy estate to the unsecured claimants who file a written claim form with the court.

The Federal Rules of Bankruptcy (court rules) provide a format to use in filing a proof of claim.  A form to use to file a claim can be obtained at most Stationery stores or the Clerk of the U.S. Bankruptcy Court can provide blank forms. The official form is "recommended" and any substantially similar format will suffice.  Following the official form, is the safest approach.  Click here to download a blank   PROOF OF CLAIM FORM.


HOW TO FILE A PROOF OF CLAIM FORM

At first glance, the federal court pleading captioned "Proof of Claim" is foreboding. It appears so intricate that many creditors probably waive their claim to avoid the embarrassment of improperly completing the form.

HERE IS HELP  Print the official proof of claim form which downloads HERE .  Every box on this  form is numbered.   An explanation follows for every blank on the form for easy reference by the numbers added to the form. 

Claim completion list:

1. Some states with larger populations have more than one federal district (e.g., a Northern and Southern District). Colorado and Wyoming do not. This space may be left blank in states where there is only one district.

2. The name of the state in which the court is situated (not necessarily the debtor's home state or the one in which the creditor resides) goes here (i.e., Colorado, or  Wyoming).

3. The debtor's full name goes here. It will be on notice forms received by a creditor announcing the bankruptcy filing. Many times a business and a person file separate bankruptcies. A creditor may receive notice of both. The proof of claim claim should be filed only in the debtor's personal bankruptcy if the creditor is owed only by the debtor personally.   Partnerships and sole proprietorships  allow claims against the personal debtor, while this is not generally the case if the debtor is a corporation or a Limited Liability Company. If the creditor did business only with a corporation, proving only against the corporation is appropriate.  If the individual debtor co-signed the debt, proving against both is proper, but the claim will be paid only once. Claims will participate pro rata in business and personal  estates if the are joint debtors.  Partial payment in one requires amendment in the other estate.

4. The case number goes here.  It will be on the creditor's notice of filing.  In  Colorado and  Wyoming, the case numbers contain seven digits. The first two identify the year in which the case is filed. The next three or four digits indicate how many cases have been filed in that calendar year.  The numbers are followed by the judge's initials  to whom the case is assigned.

5.  The claimant's name goes here.  If the claimant uses a d/b/a not recognizable from the true name, that should be listed also to avoid an objection based on lack of recognition.

6.  The check boxes are optional and provide the clerk of court address correction information.

7.  Expect to see a clerk filing stamp here if your copy is from the official court file.  It will show, time date, and court designations.

8.  This is the address that the trustee will use to mail the distribution check.  Do not forget to update it if you move prior to a distribution.

9.  This box is optional, but convenient if the debtor has two Sears accounts or Capital One Visas.  It would avoid an objection as to being duplicative if one claimant files multiple proofs of claim.

10.  Subsequent claims can be identified by checking one of these boxes, again to avoid the possibility of objection based on duplicative claims.

11.  Unfortunately not every type of claim has a box to check here.  Use the other box and try to be specific enough in the description to avoid an objection because the debtor does not recognize your claim.  Be sure to provide W2-tax form information if you check the wages due box.  Wages are a very high priority and often get paid at least in part.

12.  Precision is not important here.  If the date pre dates the applicable statute of limitations the claim will meet with objection.  An open and on going credit service calls for a range of dates rather than one specific date.

13.  Judgments become liens by operation of law and timing effects priorities so this information will help a trustee sort out the consequences that the date involves.

14.  This is misleading. The actual claim amount may be different than the petition date amount, so do not let the caption effect you.  Be sure to claim the proper sum.     

     This is an important space -- the amount of the claim. The amount should, if it is unsecured, include interest only to the date the petition for bankruptcy was filed by the debtor (unsecured post-filing interest is not allowed). The filing date is on the notice form received by creditors and can also be obtained from the bankruptcy court.

It is an aid to the trustee when the estate is administered to show a principal sum in dollars and an interest sum in "dollars through ____________ _____, 20____" (the filing date).

If the claim arises from an action of the debtor that makes it impossible to determine the exact amount he owes the creditor (like the car accident victim), a claim can still be filed! Under the old bankruptcy law this was not the case, for "nonprovable" debts were simply not discharged. Under the present law, a creditor may estimate a reasonable sum and file a proof of claim. If the debtor or another interested party disagrees with the creditor's guess an adversary proceeding (or perhaps a contested hearing) can be held, and the judge will determine the appropriate amount to be allowed.

15.  If the claim is secured, the bankruptcy code makes filing a little more complicated. While only unsecured claims are paid by chapter 7 trustees, if a deficiency is anticipated, a claim form should be timely filed so that it can be amended later when the deficiency is determined.  The code allows a secured claim to be treated as such only up to the present value of the collateral. If the debt is in excess of the value of the collateral it is secured to that value and unsecured for the balance. The code determination of "collateral value" ("*** determined in light of the purpose of the valuation and of the proposed disposition or use of such property,***) can be disputed by an interested party in a contested proceeding. If the claim is secured by collateral with enough value to cover interest, interest is payable through the time of the trustee's distribution(s) and not just the filing date. This also holds true for collection costs and attorney fees, if the security agreement provides for securing those costs. So the number that properly goes in space 14 if the debt is secured depends on collateral value.

     a) If the value of the collateral exceeds the debt, the claim form should show:

     $ Principal

     $ Interest to date

     $ Other costs secured and incurred

     $ A daily interest figure at the contract rate thereafter

     b) If the collateral is worth far less than the claim, the form should show:

          i. a dollar value of the secured portion, and dollar value of the unsecured portion including      interest to date of filing.

         ii. Nothing need be included for interest after filing as unsecured debt is not paid interest after the filing date.

 CAUTION - if a repossession occurs after a secured creditor files a proof of claim, the creditor is required to amend the claim and show the application of the proceeds realized by the foreclosure.

After a reaffirmation, the proof of claim must be withdrawn (or amended to show no indebtedness).

Few creditors realize that expenses incurred after filing (for instance, attorney fees) can be claimed.  A sophisticated creditor will amend his claim just prior to distribution if these costs are adequately covered by collateral value ("secured" under the code). They are payable by the estate.

16.  Code section 507(b) specifies certain claims that are paid ahead of general unsecured claims.  this space has a list of those claims.  If your claim is listed, check the applicable box.  If you have any questions about whether a claim is a priority claim or simply unsecured you need to ask a bankruptcy lawyer.  DO NOT ask the deputy clerk of court where you file the claim.  That person has no training what-so-ever on how to file a proof of claim form.  That person puts the forms in the correct file.

17.  It is a good idea to attach a payment schedule or ledger to substantiate the amount claimed.  

Claims filed without supporting attachments are often denied summarily, and almost always draws an objection.  If you do not have a document to support your claim describe it in writing to attach.  " I loaned him money and he promised to repay me."

An extra copy of the claim form will result in your receiving a file stamped copy for your records.  This is always good technique.

 

 

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