DAVID A. SCHOLL, Bankruptcy Judge.
At this juncture in the tortuous procedural history of this case, we are called on to decide one relatively simple legal issue, i.e., whether the Debtor's Proof of Claim was timely filed, pursuant to 11 U.S.C. § 501(c), on November 18, 1986, at least seven (7), and possibly over ten (10), months subsequent to the bar date for filing claims.
The Debtor, a married woman, filed this Chapter 13 bankruptcy case individually on February 8, 1985. We learned from the Debtor's Brief that her husband, Sheldon Gurst, also has a separate Chapter 13 case pending.
On her schedules, the Debtor listed separate loan obligations to the Creditor and
On July 25, 1985, this Court, per our predecessor, the Honorable William A. King, Jr., entered an Order granting the Creditor's Motion for Relief from the Stay. The Order notes that this was "upon agreement of the parties" and that it was "without prejudice of Debtor to seek reinstitution of stay." On August 12, 1985, a similar Order was entered as a resolution of a similar Motion by Norwest.
The Meeting pursuant to 11 U.S.C. § 341 was originally scheduled on October 24, 1985. It would therefore appear, pursuant to the indication of same on the face of the Notice scheduling the Meeting, as well as Bankruptcy Rule 3002(c), that the last day for filing of Proofs of Claim, at least by creditors, was January 22, 1986. However, the docket entries indicate that, on March 11, 1986, the Trustee sent a notice to all parties establishing April 3, 1986, as the last day for filing claims. We note that we are unable to comprehend how the Trustee would have the power to extend the claim bar date. Therefore, we must hold that January 22, 1986, is the bar date, at least as to any party who is not able to establish that (s)he was misled by the Trustee's notice.
On March 25, 1985, and April 1, 1986, respectively, Norwest and the Creditor filed Proofs of Claim. On February 13, 1986, the Debtor filed an Objection to Norwest's Proof of Claim, contending that it was entitled to a claim for recoupment under the federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. On September 19, 1986, the Debtor filed an Adversarial Proceeding, at Adv. No. 86-1121S, against the Creditor, attacking its Proof of Claim on several grounds. Ironically, in Count One, the Debtor averred that the Claim should be denied because it was averred that the bar date was January 22, 1986, and the Proof of Claim was tardily filed on April 1, 1986.
Meanwhile, the Standing Chapter 13 Trustee filed the first of a series of Motions to Dismiss this Case on April 1, 1985, and April 11, 1985. On December 4, 1985, the last of these was filed, on the ground that the Debtor's Plan was not feasible. This Motion had been continued six times due to the contentions of the Debtor that certain claims were in dispute and needed to be resolved prior to our taking the bench to succeed Judge King on August 27, 1986.
This case first came to our attention on September 17, 1986, when the continued Trustee's Motion to Dismiss was listed for a hearing for the sixth time. In order to get the case moving or remove it from the system, we entered an Order on the next day directing that Counsel for the Debtor submit a list of all Creditors whose claims were disputed on or before September 22, 1986; indicating that Objections to all Claims would be heard on October 16, 1986; and continuing the Trustee's Motion to Dismiss for, hopefully, the last time, until November 19, 1986.
We believed that the way was now paved for confirmation of the Debtor's Plan, as all four (4) of the claims concerning which there were disputes had been resolved. Little did we know, much less suspect, that on November 18, 1986, the day before the continued hearing on the Trustee's Motion to Dismiss was scheduled, the seeds of this controversy were replanted by the Debtor's filing of a Proof of Claim pursuant to § 501(c) on behalf of the Creditor, referencing both its own Claim and that of Norwest, in the munificent sum of one ($.01) cent. On November 20, 1986, the Debtor amended the Proof of Claim filed on November 18, 1986, but not the amount set forth therein.
At the hearing on November 19, 1986, the Trustee indicated that the removal of all of the disputed Claims would justify withdrawal of his Motion to Dismiss, but that the reported Stipulation with GMAC had not yet been filed of record. Therefore, on November 20, 1986, we entered an Order continuing the disposition of the Motion to Dismiss and rescheduling that hearing and a Confirmation Hearing on January 21, 1987.
Unbeknown to us, on December 12, 1986, the Creditor filed an Objection to the Debtor's Proof of Claim, raising, inter alia, the issue that it was not timely filed. We also note that, on April 29, 1985, the Creditor had filed an Objection to the Confirmation of the Debtor's Plan. Unfortunately, the Court and the Trustee failed to notice the existence of this rather dated filing at the hearing on January 21, 1987, and the Trustee recommended Confirmation of the Debtor's Plan.
A hearing on the Objection to the Debtor's § 501(c) filing was scheduled on January 28, 1987. After hearing brief argument from both parties, during which the Court was advised of the existence of the Creditor's outstanding Objection to Confirmation, we entered an Order of January 29, 1987, requiring the parties to simultaneously file Briefs addressing the Objections to the Debtor's Proof of Claim on or before February 11, 1987; and advising that the Confirmation Order had not been signed and would be considered at a hearing scheduled on March 11, 1987. Because there are no material facts in dispute, and we are able to render our decision upon application of the law to undisputed facts in the record, we are able to prepare our Opinion in narrative form rather than in the form of Findings of Fact and Conclusions of Law contemplated by Bankruptcy Rules 9014 and 7052 and Federal Rule of Civil Procedure 52(a).
Compared to the recitation of this complex factual history, a review of every pertinent legal precedent can be accomplished in relatively little space. We find that the most recent and lucid appellate decision which reviews the law in this area to be an authority cited by neither party, In re Solari, 62 B.R. 31 (9th Cir.Bankr.App.1986). In that case, the Debtor filed a Proof of Claim, per § 501(c), twenty (20) months after the bar date. The two (2) judges joining in the majority opinion held that it was
A concurring judge argued that the presently applicable version of Bankruptcy Rules 3002(c) and 3004 establish the time for filing of all Proofs of Claim, without exception for § 501(c) filings, as ninety (90) days after the first date set for the meeting of creditors. Thus, the concurring judge indicated that he would disallow any claim, including those filed per § 501(c), which were filed beyond the bar date. Naturally, he joined the majority in dismissing the claim before the court in Solari.
The two (2) views expressed in Solari represent the split among the courts. The opinions of the courts in In re Thurston, 52 B.R. 71 (D.Colo.1983); and In re Schneider, 51 B.R. 196 (Bankr.D.Colo. 1984), and the view of Norton, 1 W. NORTON, BANKRUPTCY LAW & PRACTICE, § 28.01, at Part 28 — Page 2 to Page 3 (1982), is consistent with that of the concurring judge in Solari.
Consistent with the majority opinion in Solari, and hence constituting the majority view, are the following cases: In re Middle Plantation of Williamsburg, Inc., 48 B.R. 789, 800-01 (E.D.Va.1985) (matter in which there was a delay of four (4) months is remanded to bankruptcy court to determine reasonableness); In re Starkey, 49 B.R. 984 (Bankr.D.Colo.1984) (ten-month delay in filing found not reasonable); In re Gingery, 48 B.R. 1000 (Bankr.D.Colo.1985) (delay of almost six (6) months found reasonable by same bankruptcy judge who decided Starkey); In re Behrens Enterprises, Inc., 33 B.R. 751 (Bankr.M.D.Pa.1983) (six-month delay found reasonable under the circumstances); and In re Higgins, 29 B.R. 196 (Bankr.N.D.Iowa 1983) (sixteen-day delay is reasonable).
We addressed the issue of late filing of claims by creditors in In re Owens, 67 B.R. 418, 423 (Bankr.E.D.Pa.1986), pointing out therein that there is "well-established law of this Circuit and this Court that the deadlines for filing proofs of claim are `strictly construed,'" citing as our principal authority In re Pigott, 684 F.2d 239 (3d Cir.1982), where the Court of Appeals refused to find the emergent circumstance that the claimant's business was disrupted by the nuclear accident at Three Mile Island to be a sufficient justification for a late filing.
Given this framework of a strict construction of the time-deadlines against creditors, it seems inequitable to be overly indulgent with debtors who file claims on behalf of creditors pursuant to § 501(c). Although we join the majority in Solari and the other cases cited above in holding that it is only logical that a party filing under § 501(c) should be accorded some short and reasonable time dispensation beyond the period established by Bankruptcy Rule 3002(c) where circumstances justifying a late filing and lack of unfair prejudice coelesce, we cannot agree that the dispensation sought by the Debtor here is either reasonable, or attended by the requisite circumstances justifying same, or that lack of unfair prejudice to all opposing parties is established.
With respect to the length of the time dispensation sought, the Debtor argues,
Behrens, allowing a claim to be filed six (6) months after the bar date, is the high-water mark for length in time dispensations in the known cases. However, it is clear that the time-period here must be measured from the bar date of January 22, 1986, to November 18, 1986. Hence, the time-period is almost twice the time-period that was in issue in Behrens. While it is true that the Debtor's opportunity to file pursuant to § 501(c) would have been cut off by the Creditor's filing of a timely Proof of Claim on its own behalf, it seems clear to us that the Creditor's filing of its own Claim, on April 1, 1986, was not timely. The Norwest Claim was filed on March 25, 1985, giving the Debtor a period of almost ten (10) months until the bar date to dispute this Claim, have it dismissed, and file her own claim. The Debtor herself was clearly not misled by the late filing of the Creditor's own Claim, as she objected to the Creditor's own Claim on this very basis of untimeliness. It certainly does not sit well with us to observe that the Debtor challenged a Proof of Claim filed by the Creditor as untimely, and, after it succeeded partially on the strength of this point, proceeded to file its own Claim over thirty (30) days thereafter.
We should also note that we find no circumstances present which would justify the late filing, and a significant possibility of unfair prejudice to the Creditor if we allow the Claim. The Debtor offers virtually no reasons justifying her tardiness. The Creditor would, in our view, be unfairly forced back into the bankruptcy forum if we allowed the Claim, contrary to what appeared to be the course to which all of the Counsel present agreed on October 16, 1986. While it is true that the Creditor could now file a Proof of Claim due to the Debtor's filing, per Bankruptcy Rule 3004, we believe that it is unfair to force the Creditor into the bankruptcy court forum when it has already obtained relief from the automatic stay and expressed a desire, on October 16, 1986, to pursue the Debtor elsewhere.
We should also note that, rather than finding the circumstances of the Debtor here such as would encourage us to grant her a dispensation, we believe that, by the use of her and her husband of a series of separate bankruptcies in tandem, the Debtor and her husband are seeking to maximize the benefits to them in excess of those which might be obtainable in a joint bankruptcy. While the Debtor and her husband are entitled to all that the Code and their Counsel's ingenuity allows them, the Debtor hardly fits the mold of ignorant and innocent parties represented by errant counsel which appeared to be before the courts in Behrens, Gingery, and Higgins. Further, the filing of a Proof of Claim in the amount of one ($.01) cent to attempt to thus effectively eliminate the Creditor's Claim is in itself an act which evinces an ingenious, but not necessarily equitable, use of the Code. While again, we do not condemn the Debtor or her Counsel for seeking to obtain the maximum benefits available in the Code, and, to the contrary, commend Counsel for creatively doing so, we must observe that when one proceeds at the cutting edge of the Code's beneficence, one must be particularly careful to be vigilant. The delay in filing here does not exhibit the vigilance which we think is also requisite when one resorts to creative lawyering.
Therefore, even giving the Debtor the benefit of the more liberal interpretation of the time limitations suggested by the divergent opinions in Solari, and even if we follow Behrens on its facts, we cannot agree with the Debtor that her Proof of Claim, filed November 18, 1986, was, in these circumstances, timely. Accordingly, we shall enter an Order sustaining the Creditor's Objection to this Proof of Claim.