TJOFLAT, Circuit Judge:
This is an appeal by a creditor in a Chapter 11 bankruptcy proceeding challenging an order of the bankruptcy court, affirmed by the district court, precluding it from filing a proof of claim after the time fixed for the filing of proofs of claims had passed. We find no error and affirm.
In 1979, the creditor, Biscayne 21 Condominium, Inc. (Biscayne), a condominium association, purchased a residential condominium, known as Biscayne 21, from the debtor, South Atlantic Financial Corporation (SAFCO), a Florida corporation engaged in real estate development. In 1981, Biscayne filed suit against SAFCO in the Florida circuit court alleging that SAFCO had breached its sales agreement with Biscayne by misrepresenting the condition of the condominium and by failing to make certain repairs to it. This litigation was pending when SAFCO filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978 (the Bankruptcy Code) in the Southern District of Florida and was stayed on October 13, 1982.
In December of 1982, SAFCO filed a schedule of claims and statement of financial affairs in the bankruptcy court, pursuant to Interim Bankruptcy Rule 1007(b).
On August 18, 1983, SAFCO requested the bankruptcy court to estimate certain contingent or unliquidated claims pursuant to section 502(c) of the Bankruptcy Code. 11 U.S.C. § 502(c) (1982).
The court heard Biscayne's request on August 31. At that hearing, Biscayne's counsel readily admitted that her client had failed to submit a timely proof of claim solely because of her error: she explained that Biscayne had employed her after the Chapter 11 proceeding began and it was her impression that its previous attorney had filed a proof of claim.
On October 26, Biscayne appealed the bankruptcy court's September 1 and October 18 orders.
Under Chapter 11 of the Bankruptcy Code only certain claimants are required to file proofs of claim in order to participate in a reorganization. Section 1111(a) of the Code, 11 U.S.C. § 1111(a) (1982), provides that all claims listed by a debtor in its schedule of claims are deemed to be filed unless the debtor lists a claim as "disputed, contingent, or unliquidated." Because SAFCO listed Biscayne's claim as disputed, Biscayne was required to file a proof of claim by the bar date; otherwise, it would be forever foreclosed from participating in SAFCO's reorganization.
Although the Bankruptcy Code informs us as to which creditors must file proofs of claim in order to participate in a reorganization, it is silent as to the time within which claims must be filed. This subject is covered by the Bankruptcy Rules.
Rule 3003(c)(3) authorizes the court to extend the time for the filing of a proof of claim for "cause shown." This rule must be read, however, in conjunction with Rule 9006(b). See In re O.P.M. Leasing Services, Inc., 35 B.R. 854, 864 (Bankr.S.D.N.Y.1983); cf. In re Magouirk, 693 F.2d 948, 950 (9th Cir.1982). Rule 9006(b) provides:
(Emphasis added.) Rule 9006(b) makes it clear that, when a party moves for an extension of time after the expiration of the time period, it must show that its failure to act before the court's deadline was the result of excusable neglect.
Courts have interpreted "excusable neglect" under Rule 9006(b) and its identically worded predecessor, Rule 906(b), as requiring the movant to show that "`the failure to timely perform a duty was due to circumstances which were beyond the reasonable control of the person whose duty it was to perform.'" In re Gem Rail Corp., 12 B.R. 929, 931 (Bankr.E.D.Pa.1981) (quoting In re Manning, 4 B.C.D. 304, 305 (D.Conn.1978)). Thus, in In re Underground Utility Construction Co., 35 B.R. 588 (Bankr.S.D.Fla.1983), the court held that a creditor had failed to show "excusable neglect" for filing his claim three days after the bar date where the untimely filing was the result of his failure to mail his claim to the proper address. Similarly, in In re Oakton Beach & Tennis Club Real Estate Limited Partnership, 9 B.R. 201 (Bankr.E.D.Wisc.1981), the court held that counsel's reliance on misinformation from a bankruptcy court clerk regarding his duty to file a proof of claim did not amount to excusable neglect; see also In re Horn Construction & Maintenance, Inc., 32 B.R. 87 (Bankr.S.D.Ala.1983), ("misunderstanding"
Although this circuit has not had occasion to construe excusable neglect under either Rule 9006(b)(1) or Rule 906(b), the definition of excusable neglect employed by the courts cited above comports with this circuit's construction of excusable neglect under Fed.R.Civ.P. 6(b)(2), from which Rule 9006(b) and Rule 906(b) are derived. See Fed.R.Bankr.P. 9006 advisory committee note. For instance, in McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387-88 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982), we held that the appellant had not demonstrated "excusable neglect" for failing to respond in a timely manner to a summary judgment motion when his only excuse for failing to do so was that his attorney was a solo practitioner with a busy schedule. See also Beaufort Concrete Co. v. Atlantic States Construction Co., 352 F.2d 460, 463 (5th Cir.1965)
Biscayne acknowledges that its failure to file a timely proof of claim was not the result of anything beyond its reasonable control, such as lack of notice of the bar date, but was the result of its counsel's failure accurately to determine whether a proof of claim had already been filed, a fact she could easily have verified by an examination of the bankruptcy court records. Biscayne contends, nevertheless, that the bankruptcy court abused its discretion when it failed to find "excusable neglect" and allow Biscayne to file a late proof of claim, because such would not have prejudiced any of the other parties participating in SAFCO's reorganization. Whether a late filing by Biscayne would have prejudiced SAFCO, its shareholders, or other creditors was not, however, a relevant inquiry for the courts below. Although some courts have examined the prejudicial effect of a late filing in determining whether excusable neglect exists, see, e.g., In re O.P.M. Leasing Services, Inc., 35 B.R. 854, 866 (Bankr.S.D.N.Y.1983) (construing excusable neglect under Rule 9006(b)(2)); In re Four Seasons Securities Laws Litigation, 493 F.2d 1288, 1290-91 (10th Cir.1974) (construing excusable neglect under Fed.R.Civ.P. 6(b)(2)); this circuit, as we have noted above, has not done so when applying Fed.R.Civ.P. 6(b)(2); and Biscayne has given us no reason why we should construe excusable neglect under Rule 9006(b) any differently. Moreover, we believe that such a construction would do violence to the plain meaning of the language of both Rule 9006(b) and Fed.R.Civ.P. 6(b)(2). Both rules extend the time for the doing of an act where "the failure to act was the result of excusable neglect."
It is well established that a creditor need not timely file a letter perfect proof of claim before the expiration of the time fixed by the court for the filing of such and that "in a bankruptcy case, amendment to a claim is freely allowed where the purpose is to cure a defect in the claim as originally filed, to describe the claim with greater particularity or to plead a new theory of recovery on the facts set forth in the original claim." In re International Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985). See In re Commonwealth Corp., 617 F.2d 415, 420-21 (5th Cir.1980); In re Imperial Sheet Metal, Inc., 352 F.Supp. 1149, 1154-55 (M.D.La.1973). Before a court will allow a party to file an amended proof of claim, however, there must be something filed in the bankruptcy court capable of being amended. In re International Horizons, Inc., 751 F.2d at 1217; In re Sems Music Co., 24 B.R. 376, 380 (Bankr.M.D.Tenn.1982). Thus, courts have held that knowledge by the debtor of the creditor's claim, standing alone, will not be a sufficient basis upon which to allow the filing of an amended claim. In re International Horizons, Inc., 751 F.2d at 1217; Wilkens v. Simon Brothers, Inc., 731 F.2d 462, 465 (7th Cir.1984). The mere filing of a document in the bankruptcy court prior to the bar date will not, however, necessarily suffice as an informal proof of claim capable of amendment. To constitute an informal proof of claim, the document must apprise the court of the existence, nature, and amount of the claim. Perry v. Certificate Holders of Thrift Savings, 320 F.2d 584, 590 (9th Cir.1963); In re Vega Baja Lumber Yard, Inc., 285 F.Supp. 143, 144 (D.P.R.1968); In re Pizza of Hawaii, Inc., 40 B.R. 1014, 1016 (Bankr.D.Hawaii 1984). In addition, it must evidence an intent on the part of the claimant to hold the debtor liable for that claim. In re International Horizons, Inc., 751 F.2d at 1218; In re Sems Music Co., 24 B.R. at 380; In re Guardian Mortgage Investors, 15 B.R. 284, 285 (Bankr.M.D.Fla.1981). Finally, the courts have universally held that the debtor's scheduling of a creditor's "disputed, contingent, or unliquidated" claim does not constitute an amendable proof of claim; to hold otherwise, would completely eviscerate the statutory requirement that such creditor file a formal proof of claim. See, e.g., In re Pigott, 684 F.2d 239, 245 (3d Cir.1982); Hoos & Co. v. Dynamics Corp. of America, 570 F.2d 433, 439 (2d Cir.1978); Perry v. Certificate Holders of Thrift Savings, 320 F.2d at 589.
Applying these principles, courts have deemed an amendable proof of claim "filed" where, for example, the creditor, in applying to the court for relief from an automatic stay, set forth in great detail the nature of his claim, In re Guardian Mortgage Investors, 15 B.R. 284, 285-87 (Bankr.M.D.Fla.1981), or the bankruptcy court was fully informed as to the nature of the claim because the claim had been in litigation before the court for several months. In re Pizza of Hawaii, Inc., 40 B.R. at 1016. See also Sun Basin Lumber Co. v. United States, 432 F.2d 48, 50 (9th Cir.1970).
This case law makes it clear that SAFCO's knowledge of Biscayne's claim, SAFCO's listing of Biscayne as a "disputed" creditor in its schedule of claims and statement of financial affairs, and Biscayne's state court litigation with SAFCO did not provide the bankruptcy court a sufficient basis for allowing Biscayne to file an amended proof of claim. The only question before the courts below, therefore, was whether the notice of appearance, filed by Biscayne's attorney, constituted an amendable proof of claim.
The notice of appearance requested only that the bankruptcy court forward counsel's copies of all future pleadings filed in the Chapter 11 proceeding. It did not provide the bankruptcy court with any information as to the existence, nature, or amount of Biscayne's claim against SAFCO. Nor did it, in any way, evidence an intent on the part of Biscayne to hold SAFCO liable for that claim. As SAFCO has correctly pointed out, a notice of appearance might be filed by an attorney for a variety of reasons. An attorney might "appear" in a case, for example, for no other purpose than to monitor the progress of the proceeding. In short, there is nothing in the filing of a notice of appearance which, in itself, puts a bankruptcy court on notice that the party for whom the attorney is appearing has a claim against the debtor, much less the nature or amount of any such claim. The bankruptcy court did not err in refusing to treat counsel's notice of appearance as an amendable proof of claim by Biscayne, and its decision, as well as that of the district court is, accordingly,
Recently, in In re Committee of Unsecured Creditors of F S Communications Corp., 760 F.2d 1194 (11th Cir.1985), we held that the Supreme Court in Northern Pipeline only struck down as unconstitutional 28 U.S.C.A. § 1471(c), the jurisdictional grant of power to the bankruptcy courts; it did not disturb 28 U.S.C.A. §§ 1471(a) and (b) which granted subject matter jurisdiction of bankruptcy matters to the federal district courts. We also held that the Northern District of Georgia's emergency rule, identical to the local rule operative in this case, which allowed the district court automatically to refer bankruptcy actions to bankruptcy courts, was constitutional. Our decision in that case accords with those of every other circuit that has ruled on this issue. E.g., Lindquist v. Metropolitan Bank of Bloomington, 730 F.2d 1204, 1205 (8th Cir.1984); Oklahoma Health Services Federal Credit Union v. Webb, 726 F.2d 624, 625 (10th Cir.1984); Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 200 (3d Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983). We therefore reject Biscayne's argument that the courts below acted in an absence of jurisdiction.
Additionally, Biscayne has forwarded to us, as supplemental authority, In re Modular Engineering Corp., 41 B.R. 52 (Bankr.S.D.Tex.1984), in support of its position that the courts below should have allowed it to file an amended proof of claim. In In re Modular, the bankruptcy court allowed a creditor in a Chapter 11 proceeding to file an amended proof of claim, even though it had filed nothing in the bankruptcy court apprising that court of the existence, nature, or amount of its claim, because the creditor, in a prior arbitration proceeding between it and the debtor, had set out its claim against the debtor, made demand upon the debtor, and evidenced its intent to hold the debtor liable.
Although, previously, courts, applying former Bankruptcy Rule 509(c) and present Bankruptcy Rule 5005(b), have treated a proof of claim filed with a trustee or debtor-in-possession as having been filed with the bankruptcy court, they can only do so now when it is clear that the creditor intended to file its proof of claim with the bankruptcy court but erroneously delivered it to the trustee or debtor-in-possession. See Fed.R.Bankr.P. 5005(b); In re Evanston Motor Co., 735 F.2d 1029, 1031-32 (7th Cir.1984); see also In re International Horizons, Inc., 751 F.2d at 1218. Because the court in In re Modular failed to recognize this "misdelivery" requirement of Rule 5005(b), we reject its holding and find, consequently, that it lends no support to Biscayne's position.