If a creditor fails to file a timely proof of claim in a case in which one is required, and a dividend becomes payable, is the creditor shot on the ground? In most instances, the failure to file is going to be fatal, or at least hurt an awful lot. There is, however, a body of law recognizing what is called an “informal proof of claim” that may just save the day.
An informal proof of claim is some pleading or document filed in the case which contains essentially the same information as a proof of claim, but in a different form. A good example is a stay motion with supporting affidavit or documentation, provided it is filed before expiration of the claims bar date.
The Eleventh Circuit has held that an informal proof of claim may be allowed in bankruptcy. The case is Charter Co. v. Dioxin Claimants (In re Charter Co.), 876 F.2d 861 (11th Cir. 1989). Judge Sawyer has also written to this issue, and I would refer you to his opinion in In re Jesse C. Laprade and Betty June Laprade, Chapter 13 Case Number 07-80001-WRS, Alabama Middle. The proof of claim in Laprade was one day late. The creditor argued that it should be allowed as an amendment to an informal proof of claim.
An informal proof of claim is simply a pleading filed in the case which contains information sufficient to allow it to be treated as an “informal” proof of claim. The Eleventh Circuit has held in Charter that the pleading or document must do two things: (1) it must apprise the court of the existence, nature and amount of the claim; AND, (2) it must make clear the claimant’s intent to hold the debtor liable for the obligation. It also goes without saying that the pleading must be in writing and filed with the court. Examples of pleadings cited by the Charter court as constituting allowable informal proofs of claim include: motions for relief from the automatic stay, In re Pizza of Hawaii, Inc., 761 F.2d 1374 (9th Cir.1985); In re Guardian Mortgage Investors, 15 B.R. 284 (Bankr.M.D.Fla.1981), letters notifying the trustee of a debt of the estate, In re Anderson-Walker Industries, Inc., 798 F.2d 1285, 1288 (9th Cir.1986); complaints against a chapter 7 discharge together with an objection to a chapter 13 plan, In the Matter of Scott, 67 B.R. 1011 (Bankr.M.D.Fla.1986).
Note that to be effective, the pleading or document you assert as an informal proof of claim must be filed before the bar date is expired. Although this seems patently obvious, it has been the subject of an appeal. In In re Trans World Airlines, Inc., 96 F.3d 687 (3rd Cir. 1996), the court refused to treat a compulsory counterclaim as an informal proof of claim because the counterclaim was filed after expiration of the bar date.
One final comment: it certainly appears from my canvas of the cases addressing this issue that fairly strict adherence to the foregoing elements is required. My impression is that courts are going to be very selective in allowing informal proofs of claim.