Court Denies “Comfort Order” to File Late POC

Posted by NCBRC - February 17, 2017

Neither the Code nor the Bankruptcy Rules permit a Bankruptcy Court to grant a “comfort order” allowing a late proof of claim where no objection has been made to the filing. In re Rodriguez, No. 16-70150 (Bankr. S.D. Tex. Feb. 13, 2017).

Karina Rodriguez listed Ovation as a tax lien creditor on Schedule D of her chapter 13 petition. Ovation filed its claim, along with a motion to allow late filing, after the filing deadline had passed. Ovation’s contemporaneous motion objecting to confirmation because the plan did not provide for full payment of its claim was granted pursuant to an agreed order.

Addressing the motion for leave to file a late proof of claim, the court began with section 502(a), which provides that a proof of claim is automatically allowed unless a party objects for one of the reasons enumerated in section 502(b), including untimeliness. Rule 9006(b)(3) empowers a court to grant an enlargement of time for filing a proof of claim only for one of the six reasons listed in Rule 3002(c), none of which applied in this case. (Ovation’s reliance on Rule 3003 was misplaced as that Rule applies only in Chapter 9 or chapter 11).

In any case, here, Ms. Rodriguez did not object to Ovation’s claim, and in fact, provided for its full repayment in her plan. Because allowance of a claim is automatic absent objection by a party in interest, and no such objection was made, the court found the sought-for order to be superfluous.

Rodriguez Bankr. SD Tex opinion Feb 2017


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