So You Missed the Claims Bar Date? – All May Not be Lost

The Ninth Circuit has for many years ascribed to the view that an informal proof of claim, although not filed with the court, will suffice as long as the informal proof of claim was “brought to the attention of the court” prior to the bar date. This liberal approach has resulted in letters to the bankruptcy trustee or the trustee’s counsel asserting a claim qualifying as an informal proof of claim. The Idaho Bankruptcy Court, in In re Parrott Broadcasting LP, Case No. 10-40017-JDP, has now taken this liberal approach even further by holding that a creditor’s declaration of willingness to serve on an unsecured creditors’ committee sent to the United States Trustee (UST) in a Chapter 11 case was sufficient to constitute an informal proof of claim. Applying the five factors for informal proofs of claim articulated by the Ninth Circuit BAP in In re Fish, 456 BR 413, 417 (9th Cir BAP 2011), the court found each factor satisfied: (1) presentment of a writing; (2) within the time for the filing of claims; (3) by or on behalf of the creditor; (4) bringing to the attention of the court; (5) the nature and amount of a claim asserted against the estate. The critical issue identified by the court was whether providing the declaration to the UST was sufficient to “bring [the claim] to the attention of the court,” which could be accomplished by either filing it with the court or sending it to a representative of the bankruptcy estate. In concluding that the UST qualified as a representative of the estate, the court relied on an Eighth Circuit Chapter 7 case with similar facts, In re Haugen Constr. Servs., Inc., 876 F2d 681, 682 (8th Cir 1989). In Haugen, the creditor was found to have submitted an informal proof of claim when it sent the UST a letter setting forth the amount and basis for the its claim and requesting that the UST forward it to the case trustee once appointed. Although not discussed in the Parrott opinion, it does not appear that any request was made for the UST to forward the declaration to the DIP or any other Chapter 11 estate representative. Nevertheless, based on the court’s findings and conclusions, the lack of any such a request would not appear to alter the court’s ruling.

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