Generally speaking, to share in the distribution of the bankruptcy estate, a creditor must file a proof of claim. The Bankruptcy Code’s definition of a claim is very broad.
A claim should be filed even if the consumer has no judgment against the debtor, has not begun litigation or is not certain of the exact amount of the claim. If the consumer has begun litigation or has obtained a judgment outside the bankruptcy proceeding, proof of claim must still be filed in the bankruptcy court.
The claim must be made on Official Form 10 or on a substantially similar document. The form is relatively simple and self-explanatory. It should be filed by the consumer with the court, not with the trustee, unless a local rule exists to the contrary.
In cases under Chapters 7 or 13, the proof of claim must be filed within 90 days after the first date set for the meeting of creditors. A few exceptions to this deadline exist. The one most likely to be encountered is a no-asset notice. In a Chapter 7 case, if it appears that the debtor has no assets to distribute, the notice of the meeting of creditors may indicate that proofs of claim need not be filed, that creditors will be notified if it later appears that there will be assets for distribution, and that notice of a time for filing will then be given.
The first date set for the meeting of creditors, which sets the clock running for the Chapter 7 and Chapter 13 proof of claim, is usually 20 to 60 days after the filing of the bankruptcy petition. If the debtor has listed the consumer as a creditor, the consumer should receive notices of the meeting from the court. Otherwise, the consumer must check the court files to determine the date.
In a Chapter 11 case, the court sets the deadline for filing proofs of claim and may extend the time for good cause. The deadline for filing may be set in the Chapter 11 plan and may become an order of the court upon confirmation of the plan, rather than in a separate court order. A creditor whose claim is listed in the schedule of liabilities in a Chapter 11 case and not noted as disputed, contingent or unliquidated need not file a claim. Filing a claim is still advisable, however. Business debtors often do not value the claim as highly as consumer creditors or do not give it the priority that the creditors may claim. Further, if the case is converted to Chapter 7, as many Chapter 11 cases are, only claims actually filed by the creditors in Chapter 11 are deemed to be filed in the Chapter 7 case. At the time of conversion, a new claim date will be set for those who have not previously filed claims.
Certain claims are entitled to priority. They are paid in the order of priority set by the Code before payment to most unsecured creditors. In making a proof of claim, the consumer creditor should take care to claim any priorities. Unless there is an objection, a proof of claim is allowed. Therefore, the claim should be for as high an amount and with as high a priority as good faith permits.