Proof of claim

[moses911]

In chapter 13 which credit card or bank will most likely not file a proof of claim?

just wondering if there is any specifically knowing for not filing proof of claim

[justbroke]

There is absolutely no way to gauge this or to provide any list. About 75% of all that debt is typically sold to a junk debt buyer (JDB) and those JDBs are VERY efficient at bulk filings.

[Kikilynn]

If a creditor sells to a collection agency, can you object to their proof of claim? Don't they need to send in original agreement with the proof of claims? Anybody have any luck objecting to this matter?

[justbroke]

If a creditor sells to a collection agency, can you object to their proof of claim? Don't they need to send in original agreement with the proof of claims? Anybody have any luck objecting to this matter?

You can object, but they don't necessarily need the original agreement. They can just show that a.) the debt was sold to them, and b.) several statements showing balances. Pretty simple to establish prima facie evidence of the debt.

In fact, just submitting a claim with the initial proof is prima facie evidence of a valid debt. When you object, you need to have an actual legal position of why it's not evidence of a valid debt. Simply that you owe someone else and not the claimant may be insufficient if they have an valid assignment of the debt. All they need to do is file the assignment and several statements. The ball is then back in your court to actually prove that what they submitted is inaccurate.

So claims policing is not that simple and objecting by just saying that you don't owe "them" is not enough. I have had luck on nearly every single one of my objections because I had a basis that the alleged creditor filing the claim, didn't provide any proof that there is a debt and that the debt was owed to them specifically (via assignment or an original debt). Assignment of debt is perfectly fine under the uniform commercial code (UCC).

I objected to about 15 of the 30 or so claims filed by JDBs in my Chapter 13. Only about 5 of the objections were overruled because the Junk Debt Buyter (JDB) filed additional documentation with an actual assignment of debt and several statement copies. Many of the JDBs just file a "summary" sheet of sorts which is not proof of the debt. Notorious JDBs with this tactic, at least in 2008, were LVNV Funding, eCast Settlement, RoundUp Funding, Midland Credit Management, and Arrow Services (actual JDBs filing in my case).

Don't object just to object. If they filed an assignment along with proof of debt (statements), that is usually enough to show.

[krielly]

unless you are in a 100% payback plan (or close enough to a 100% that their lack of filing a proof of claim would put you there) it doesn't make any difference to your plan. Only to the percentage of payback the creditors who DO file will get......

[Kikilynn]

So my proof of claims date has passed. 3 did not file a proof of claims. I was to pay 65,000 at 100% , but now I only owe 22,.000 . My question is will my payment stay the same and my time is shortened or will my payment decrease and I still pay for the 60 months? I still can't believe my creditors never filed. Thank you to anyone who responds!!

[sophieanne]

In our case not everyone filed (Chase did not). It was a $20,0000 amount which was great. We still had to make the payment that was confirmed but it reduced the time to complete the case.
Once you'v e paid the 100% of filed claims you would be done.

[justbroke]

So my proof of claims date has passed. 3 did not file a proof of claims. I was to pay 65,000 at 100% , but now I only owe 22,.000 . My question is will my payment stay the same and my time is shortened or will my payment decrease and I still pay for the 60 months? I still can't believe my creditors never filed. Thank you to anyone who responds!!

You can shorten your time by paying the estimated DMI to pay 100% of $65K, or you can have your payments changed so that you pay 100% of $22K over 60 months. If you want to be out earlier, then you would keep the payments the same and be done in about 33% of the time (or about 20 months)!

[sophieanne]

justbroke - Is that a choice the debtor has??? In our case, we were told we had to pay the confirmed amount and be done early.

[justbroke]

justbroke - Is that a choice the debtor has??? In our case, we were told we had to pay the confirmed amount and be done early.

The code is clear on what you pay in a 100% plan. In a 100% plan, you only need to pay 100% over the life of the plan and DMI is not used in that calculation. It should simply be TOTAL / 36 or TOTAL / 60 (based on 3 year or 5 year plan, respectively).

However, most people don't want to "argue" the point but the caselaw is clear on this topic. I have mostly learned here on this forum that most debtor attorneys simply don't want to argue and tell the debtor to pay "DMI" and be done early. Paying DMI in a 100% plan is not required (unless your DMI pays exactly 100%).

As I always write, life happens. What's worse than paying DMI when not required and a legitimate financial emergency happens? Knowing that you should not have been paying DMI and you could have been saving for that emergency.

When you are in a 100% plan you are not required to devote "all disposable monthly income" (DMI) to the plan. You only need to devote as much DMI as required to payoff all creditors plus the Trustee's fees (and attorney fees). It's just as sophieanne writes.

This will not, however, stop a Trustee from insinuating that you must commit ALL DMI to payoff the plan early. The bankruptcy code simply does not require you to do so. If you want to payoff early, that's your choice... but I would not do it by creating a plan that pays off the Plan early. I would submit a 60 month plan paying 1/60th of the total base amount each month. Then, if I had a lot of extra income near the end of my plan (my 60 months), I might consider paying the plan off early with the savings.

Remember, you really need to save during a Chapter 13 and you never know what's going to happen! Murphy happens!

(emphasis not in original post)

See an older thread on this topic here (in which you participated sophieanne):

http://www.bkforum.com/forum/before-...37#post1013337

[sophieanne]

justbroke - thanks! It was a nice trip down memory lane . All I remembered was that our attorney said, we won't change the payment, just be done early! And we were. Having said that I totally agree with you about that sneaky Murphy. Having a little more emergency money along the journey would have been helpful.