2 ABR 183
HERBERT A. ROSS
U.S. Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA
605 West 4th Avenue, Room 138, Anchorage, AK 99501-2296 (Phone 907/271-2655)

In re

MARGO P. MANDEL,
	Case No. A91-00241-DMD
	Chapter 13
Debtor(s)	MEMORANDUM RE DISALLOWANCE OF
	PROOFS OF CLAIM OF COLLECT-
	ALASKA NETWORK

Contents		Page
1.	BACKGROUND	2
2.	DISCUSSION	3
	2.1.The Proofs Of Claims Were "Misdirected" And Not Timely Filed	3
	2.2.The Fact That the Claims Are Not Allowed May Not Mean That They Will Be Discharged Upon Completion Of The Plan, And May Make The Plan Unfeasible	6
3.	CONCLUSION	9

ЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛЛ

Margo Mandel, the debtor, filed objections to the three proofs of claim filed by Collect-Alaska Network (C-AN) after the claims bar date. I find that these claims were not timely filed

2 ABR 184 and should be disallowed. This may be a Pyrrhic victory for debtor, since the plans may still be unfeasible. I will defer confirming the plan subject to resolving this issue.

        1. BACKGROUND - C-AN filed Proofs of Claim Nos. 2, 3 and 4 with the court on August 15, 1991 for $3,254.10, $20,051.04 and $6,830.06 respectively. C-AN's proofs of claim were for student loans. Since the amendment to 11 USC Ї 1328(a) became effective in November, 1990, student loans are not dischargeable in chapter 13 except as provided by 11 USC Ї 523(a)(8) if they are old enough or would impose an undue hardship on the debtor.

     The C-AN proofs of claim were filed after the claims bar date which was July 8, 1991. The claims bar date was set in the notice of the Ї 341 meeting (Docket No. 4 filed on March 15, 1991), and it appears to be in accordance with Bankruptcy Rule 3002(c) which gives 90 days from the time first set for the Ї 341 meeting to file a proof of claim in a chapter 7 or 13 case. C-AN got proper advance notice of the claims bar date.

     C-AN, before it was represented by attorneys, sent executed official proof of claim forms to debtor's attorney in June, 1991, before the claims bar date expired, but neglected to file them with the court or trustee. C-AN did not ask debtor's attorney to file the proofs of claim with the court. Debtor's attorney made no representation that he would file them. He merely remained silent, but it does not appear he was trying to sandbag C-AN.

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     At a confirmation hearing on July 10, 1991, which was continued on the record because debtor's attorney failed to properly notice out the hearing, the court noted that the claims bar date had just passed and the student loan creditor shown on the schedules had not filed a proof of claim. Debtor's attorney wrote C-AN's attorneys on July 20, 1991 that he had just put two and two together and determined that C-AN's claims were untimely and could be discharged if debtor fulfilled her chapter 13 plan payment obligation.

     Debtor then filed a formal objection to the three proofs of claims. Debtor argues that if the claims are disallowed because they are untimely, they will be discharged upon successful completion of debtor's chapter 13 plan.

     Debtor's chapter 13 plan provides for plan payments of $290.37 per month for 36 months, or a gross amount of $10,453.32 which is substantially below the amount needed to pay C-AN's student loans. The plan does not specifically provide for the student loans, but has a generic unsecured creditors class which was anticipated to receive less than 100% of their allowed claims.

2. DISCUSSION -

2.1. The Proofs Of Claims Were "Misdirected" And Not Timely Filed - Bankruptcy Rule 3002(b) states that the place where a proof of claim is to be filed is governed by Bankruptcy Rule 5005. Rule 5005 provides:

RULE 5005. Filing of Papers

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(a) FILING. The proofs of claim or interest, complaints, motions, applications, objections and other papers required to be filed by these rules, except as provided in 28 U.S.C. 1409, shall be filed with the clerk in the district where the case under the Code is pending. The judge of that court may permit the papers to be filed with the judge, in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk.

(b) ERROR IN FILING. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery.

The Ninth Circuit discussed the concepts of "informal proofs of claim" and "misdirected claims" in In re Anderson-Walker Industries, Inc., 798 F.2d 1285 (9th Cir. 1985). An informal proof of claim is one which states an "explicit demand and shows the nature and amount of the claim against the bankruptcy estate, and evidences an intent to hold the debtor liable." Id at 1287 and In re Sambo Restaurants, Inc., 754 F.2d 811, 815 (9th Cir. 1985). Once a claimant has its foot in the door with a timely "informal claim," the claimant merely has to take advantage of the liberal amendment rules and file as an amendment a proper proof of claim. Id at 1287.

The case at bar does not really concern the informal proof of claim doctrine since the claims delivered by C-AN's attorneys to debtor's attorney before the claims bar date was actually on the official form adopted by the Administrative Office

   2 ABR 187 of the United States Courts. See present Official Form 10, which on August 1, 1991 replaced the form that C-AN used.

     In Anderson-Walker, a creditor had mailed a letter (which qualified as an "informal proof of claim") to a chapter 7 trustee. The trustee argued that this was not a validly filed claim. The court held, however, that under the predecessor rule to Bankruptcy Rule 5005(b), an erroneous filing with the trustee could, in the interest of justice, be deemed to have been filed with the court on the date the trustee received it.

     The distinction in our case is that the chapter 13 trustee was not served with the claim, but the debtor was. The debtor is not one of the authorized substitute parties for receiving a filing listed in Rule 5005(b). See In re Banchik, 115 B.R. 231, 232 (Bankr.D.Ariz. 1990) (a letter from creditor landlord to a chapter 7 debtor tenant, after conversion from chapter 11, was not sufficient to be an "informal proof of claim"). But, see In re Daystar of California, Inc., 122 B.R. 406, (Bankr.C.D.Cal. 1990) (a letter by a creditor who was unscheduled and without notice of bankruptcy was allowed as an "informal proof of claim" even though it was only served on the chapter 7 debtor, which had converted from chapter 11).

     The Daystar court was troubled by the lack of notice, but instead of analyzing the problem on due process grounds, merely gave a very expansive reading of the informal proof of claim doctrine.

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     There may be an argument that a chapter 13 debtor is in reality a hybrid between a chapter 7 trustee and a chapter 11 debtor-in-possession, and should thus qualify as one of entities upon whom service of documents which should have been filed in court may be deemed sufficient in the manner envisioned by Rule 5005(b). I believe this would allow too much looseness in the system and create unnecessary litigation about whether or not claims have been timely filed.

     Many chapter 13 debtors are pro se, and many will receive billings from a creditor before the notice of the petition as actually reached the creditor. If the debtor in a chapter 13 case were deemed to be an appropriate party to receive substitute service, any errant billing would conceivable qualify as an informal proof of claim and this would open the door to uncertainty and controversy about the timeliness of such claims.

     It is better to read Rule 5005(b) more strictly. Thus, I hold that delivery of a proof of claim to the debtor in a chapter 13 does not qualify as filing under Bankruptcy Rule 5005(b).

     Of course, if this case is converted to chapter 7, C-AN's untimely proof of claim will become timely. See Bankruptcy Rule 1019(a)(3).

2.2. The Fact That the Claims Are Not Allowed May Not Mean That They Will Be Discharged Upon Completion Of The Plan, And May Make The Plan Unfeasible - The discharge section governing

2 ABR 189 chapter 13 cases in which a confirmed plan is fully performed provides:

Ї 1328. Discharge

(a) As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter [11 USC ЇЇ 1301 et seq.], the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title [11 USC Ї 502], except any debt-

(1) provided for under section 1322(b)(5) of this title [11 USC Ї 1322(b)(5)]; or

(2) of the kind specified in section 523(a)(5) or (8) or section 523(a)(9) of this title [11 USC ЇЇ 523(a)(5),(8),(9)].

     It is puzzling why Congress structured the chapter 13 statutes so that a plan shall provide for full payment of Ї 507 priority claims (per Ї 1322(a)), but did not provide in the Ї 1328(a) discharge section that these claims would not be nondischargeable.

     Ї 507(a)(7) priority taxes are dischargeable under a full-compliance discharge per 11 USC Ї 1328(a), but are not dischargeable under a hardship discharge under Ї 1328(b). See 11 USC Ї 523(a)(1),

     Support claims described in Ї 523(a)(5), and student loan claims (subject to exceptions) under Ї 523(a)(8) are nondischargeable under both Ї 1328(a), the full-compliance chapter 13 discharge section, and Ї 1328(b), the hardship discharge section. Student loans are nondischargeable because of the wording

   2 ABR 190 in 11 USC Ї 1328(a) with respect to a full compliance discharge, and because of the wording of Ї523(a) with respect to a hardship discharge under Ї1328(b).

     A plan must "provide for full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim." See Ї 1322(a)(2). A student loan does not qualify as a priority claim under Ї 507. Many tax claims do.

     In arguing that the disallowance of the C-AN claims makes her plan confirmable, debtor has relied on a chapter 13 tax claim case in which the IRS failed to file a timely claim, to infer that the untimely student loan claim in our case would be discharged. I am not certain this is so. The case is In re Tomlan, 907 F.2d 114 (9th Cir. 1990), in which the circuit panel incorporated the opinion of District Judge Quackenbush verbatim from 102 B.R. 790 (E.D.Wash. 1989).

     In Tomlan, the debtor's plan provided they would pay the allowed claim of the IRS. The IRS did not file a timely claim. If it had, the plan would not have been feasible. The holding was that the plan both "provided for" the IRS claim in the sense that it committed to pay the IRS allowed claim (of which there was none due to the IRS having filed its claim after the claims bar date) and that the claim was also dischargeable.

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     With respect to the dischargeability of taxes under Ї 523(a)(1) of the Bankruptcy Code (which might be nondischargeble under Ї 523(a)(1) both because they are Ї 507 priority taxes, or nondischargeable due to tardy or fraudulent filing), these will be discharged under a full compliance discharge, Ї1328(a).

     Many student loan and support claims under ЇЇ 523(a)(5) and (8) respectively, on the other hand, may not be dischargeable whether or not a proof of claim is filed because Ї 1328(a) specifically excludes them from discharge whether or not a claim is filed. There is no comparable provision in Ї 1328(a) relating to tax claims under Ї 523(a)(1). Thus, the holding in Tomlan may not benefit the debtor in this case.

     The Bankruptcy Appellate Panel in In re Pacana, 125 B.R. 19 (9th Cir. BAP 1991) recently held that a pre-petition child support claim was excepted from the automatic stay and the post-discharge injunction under Ї 524(a)(2) of the Bankruptcy Code. Pacana involved a confirmed plan. The automatic stay was at issue, the question of discharge was not the focus. In the 2-1 decision, the BAP said that child support obligations are excepted from the effect of confirmation in chapter 13. The same argument, that the automatic stay would not be available to debtor post-petition, may well apply to a student loan claim which falls under Ї 523(a)(8). The parties have not had the opportunity to brief this issue.

3. CONCLUSION - Since the effects of Ї 1328(a)(2) in this case have not been adequately briefed because the parties and

2 ABR 192 the court were focusing on the allowabilty of the C-AN proof of claim, I will continue the confirmation hearing until November 13, 1991 at 9:00 a.m to allow the parties to research this issue and file briefs.

DATED: October 18, 1991.
	BY ORDER OF THE COURT
	______________________________
	HERBERT A. ROSS
	U.S. Bankruptcy Judge

Serve:
Chris Johansen, Esq. for Debtor
Peter Giannini, Esq., and Gail Shortell, Esq., for C-AN
Beatrice Furman, Trustee
U.S. Trustee	H3789