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It may make sense to file a proof of claim on behalf of a creditor who has not filed one on its own in your bankruptcy.

Most creditors will file a proof of claim — a form that provides information about your debt — in order to be paid if you file for bankruptcy. A creditor may fail to file a proof of claim on occasion. In rare cases, you may want to file a proof of claim on behalf of that creditor.

It may make sense to file a proof of claim on behalf of a creditor who has not filed one on its own in your bankruptcy.

Most creditors will file a proof of claim — a form that provides information about your debt — in order to be paid if you file for bankruptcy. A creditor may fail to file a proof of claim on occasion. In rare cases, you may want to file a proof of claim on behalf of that creditor.

What Is a Claim Proof?

Whether or not your creditors receive anything in your bankruptcy case is determined by a number of factors, including:

• the nature of the creditor’s claim
• whether or not you own non-exempt real estate
• whether you have a surplus of cash, and
• whether you file for bankruptcy under Chapter 7 or Chapter 13.

If a creditor wants to be paid in bankruptcy, they must file a proof of claim with the court. The proof of claim gives the court information about your debt and usually includes documentation to back up the creditor’s claim.

Creditors will, in most cases, file their own proofs of claim. If a creditor fails to file a proof of claim, you can file one on their behalf if you want that creditor to be paid in your bankruptcy.

Why Would a Creditor Refuse to Submit a Proof of Claim?

Creditors file proofs of claim in bankruptcy to receive a share of any possible distributions made by the bankruptcy trustee in your case. Even if a creditor has a valid claim, it will not be paid unless it files a proof of claim with the court. Creditors, on the other hand, frequently fail to file proofs of claim in bankruptcy.

In your bankruptcy, a creditor may refuse to file a proof of claim if:

• You have a Chapter 7 bankruptcy with no assets (meaning you don’t have any property that the bankruptcy trustee can distribute to your creditors, so they won’t be paid).
• You owe the creditor a small amount of money, or
• The creditor does not follow the court’s instructions or makes an error in some other way.
• You Might File a Proof of Claim for a Creditor for a Few Reasons

While it may seem strange to file claims on behalf of creditors in your own bankruptcy case, it can sometimes be beneficial. We’ll go over when it’s a good idea to file a proof of claim for a creditor in the sections below.

Certain debts do not disappear just because you file for bankruptcy. These are known as nondischargeable debts, and they include alimony, child support, certain taxes, and student loans. You want your nondischargeable debts to be paid before your other general unsecured creditors (such as credit card companies) in your bankruptcy because you are still responsible for them after your case is closed.

This means that whether you have nonexempt assets to distribute to creditors in Chapter 7 bankruptcy or are paying off a portion of your debts in Chapter 13 bankruptcy, you should make sure that any creditors with nondischargeable debts file proofs of claim with the court. If they don’t, it’s in your best interest to file a claim on their behalf so that they can get a piece of the settlement money.

You need to make up for unpaid secured debt payments.

You can file for Chapter 13 bankruptcy to catch up on your arrears and save your home if you are behind on your mortgage, car loan, or other secured debts. If you want to use your bankruptcy to repay your missed loan payments, make sure the creditors you want to pay (like your mortgage or car lender) file proofs of claim with the court.

If they don’t file proofs of claim, the trustee may ask the court to allow the trustee to pay your unsecured creditors instead. This means that if a secured creditor you intend to pay fails to file a claim, you may be required to do so on their behalf.

When Do You Have to File Creditor Proofs of Claim?

The majority of creditors must file proofs of claim with the court within 90 days of your creditors’ meeting (government entities have 180 days from when you filed your case). Before filing a claim on behalf of a creditor, you must wait until the creditor’s claim deadline has passed. You have 30 days after the deadline to file the claim on behalf of the creditor.

When confronted with foreclosure, many debtors file for bankruptcy—and with reason. By filing for bankruptcy, a debtor can obtain what is known as an automatic stay. During the bankruptcy case, the stay serves as an injunction, or bar, prohibiting creditors from attempting to collect debts or enforce liens.

In some instances, a debtor is not entitled to the automatic stay, or the lender successfully petitions the court to lift the automatic stay. Whether you file for Chapter 7 or Chapter 13 bankruptcy determines whether the foreclosure process is halted temporarily or permanently.

The Process of Foreclosure

When you purchase a home, you agree that if you fall behind on your monthly payments (default on the loan), the lender has the right to sell the property at auction and apply the proceeds to your loan balance. Prior to the house being auctioned, the lender must follow the foreclosure procedures outlined in federal and state law.

After the federal and state waiting periods for homeowners to catch up on arrearages or apply for a loss mitigation program (such as a mortgage modification) have expired, the lender may proceed with foreclosure in accordance with state foreclosure laws.

A lender may foreclose in one of two ways, depending on state law:

Foreclosure through the courts. All states permit lenders to foreclose through a “judicial” process that begins with the bank filing a court lawsuit. The homeowner has the option of responding to and defending the suit. The case will be litigated, and if the bank prevails, the court will order the home sold at auction.

Foreclosure without judicial intervention. Certain states permit lenders to use a streamlined “nonjudicial” foreclosure procedure that entails following state-mandated steps. The bank is frequently required to allow the homeowner time to bring the account current. Additionally, the lender must notify the owner of the sale date and, in some cases, publish the sale date via newspaper advertisement or public posting. Following completion of the steps, the lender may sell the home at auction without first obtaining court approval.

As long as the foreclosure sale has not occurred, filing for bankruptcy will halt either type of foreclosure process.

When the Automatic Stay Is Inapplicable

The stay is automatically triggered upon filing for Chapter 7 or Chapter 13 bankruptcy. There is no additional action required to bring the automatic stay into effect. (For more information, see Bankruptcy’s Automatic Stay.)

There are, however, two exceptions to the automatic stay that prohibit debtors from interfering with a creditor’s right to foreclose by filing and dismissing successive bankruptcy cases. The following are the rules.

Within the last year, one previous bankruptcy case was dismissed. The automatic stay is only in effect for 30 days following your bankruptcy filing.

Two or more previously dismissed bankruptcy cases within the last year. The automatic stay is not invoked at all.

Debtors who qualify for the automatic stay exceptions may petition the bankruptcy court to impose the automatic stay and halt the foreclosure. To prevail, the debtor must establish beyond a reasonable doubt (a relatively high standard) that the previous bankruptcy cases were not filed in bad faith.

The automatic stay exceptions for repeat or serial filers do not apply if you initially filed for bankruptcy under Chapter 7 but then converted to Chapter 13 after the means test determined that your income was too high to qualify for Chapter 7.

How the Automatic Stay Can Aid in Foreclosure Prevention

The automatic stay extends the time period available to attempt to resolve a pending foreclosure. The options for dealing with an impending foreclosure are largely dependent on whether you file for Chapter 7 or Chapter 13 bankruptcy.

Bankruptcy under Chapter 7

Chapter 7 bankruptcy does not include a mechanism to assist you in catching up on payments and retaining your home. Therefore, if you’re falling behind and wish to remain in your home, this is probably not the chapter for you. However, there are additional advantages.

When you file for bankruptcy under Chapter 7, all of your property becomes part of the bankruptcy estate. The Chapter 7 trustee appointed to your case will liquidate (sell) your assets and make any necessary payments to creditors. The automatic stay allows the trustee to sell property that would have been foreclosed on otherwise if there is a potential benefit to the estate (the property must have sufficient equity).

Depending on your circumstances, the stay may also be beneficial to you:

If the property is your primary residence, the stay may provide you with additional time to secure alternative housing or negotiate a loan modification with the lender.

You may be entitled to a portion of the proceeds if the trustee sells the property for a sufficient price. After resolving any mortgages or other valid liens, the trustee must reimburse you for your homestead exemption before resolving any other creditors. Additionally, you are entitled to excess proceeds if the property sells for a price sufficient to pay off all of your creditors.

Bankruptcy under Chapter 13

The automatic stay in Chapter 13 bankruptcy may provide you with time to catch up on any mortgage arrears and remain in your home. You’ll repay debts (some in full, some in part) over a three- to five-year period—including delinquent mortgage payments.

To make Chapter 13 restructuring effective, you must have sufficient income to cover current mortgage payments and make payments on arrearages that accrued prior to filing bankruptcy. Once the court approves a Chapter 13 repayment plan that includes mortgage arrears, the lender is prohibited from foreclosing. However, if you fall behind on mortgage or arrearage payments following the approval of your plan, the lender will be able to proceed with the foreclosure.

Removal of the Automatic Stay

A lender may file a motion with the bankruptcy court requesting that the automatic stay be lifted (terminated) and the lender be permitted to proceed with foreclosure. You have the right to respond, and if you do, the bankruptcy court will hold a hearing before deciding whether to lift the stay. If the court lifts the stay, the lender may resume foreclosure efforts, unless the bankruptcy court orders otherwise.

When you file for bankruptcy, you must disclose your debts, referred to as “creditor claims,” on official bankruptcy paperwork. However, as simple as that may sound, categorizing claims can be a bit tricky.

To begin, you’ll classify the debt as either secured or unsecured. Then, you’ll categorize the unsecured claims as priority or nonpriority. This article will teach you how to properly label each debt and determine what will happen to it if you file for bankruptcy.

Incorporating Creditor Claims into Your Bankruptcy Documents

After you complete and file official bankruptcy forms, your bankruptcy case is initiated. The cover document, referred to as the petition, is where you will disclose personal information about yourself, such as your name, address, and the bankruptcy chapter for which you are filing. On schedules, you’ll detail your income, creditor claims (debts), and assets.

Creditor claims will be listed on one of the following schedules:

Schedule D: Creditors With Property-Backed Claims Secured claims, such as a mortgage, car payment, or other collateralized obligation, are included here.

Creditors With Unsecured Claims Schedule E/F This form is for listing unsecured claims. Part 1 is reserved for priority unsecured claims, such as unpaid taxes and child support. In Part 2, you’ll detail your non-priority unsecured claims (all remaining debts).

How Is a Secured Claim Defined?

In bankruptcy, a creditor with a secured claim has two things: a debt that you owe and a lien (also known as a security interest) on property that you own. If you default on your contract obligations, the lien enables the lender to seize the property, sell it at auction, and apply the proceeds to the account balance. For example, a mortgage lender with a lien may foreclose on real estate and a vehicle loan lender with a lien may repossess a vehicle.

Secured claims are frequently made voluntarily. For example, if you agree to pledge an asset as collateral for the loan (which is frequently done when purchasing a home or car), you voluntarily grant the creditor a security interest in your property.

Creditors may also place an unauthorized lien on your property without your consent. For instance, a credit card company may obtain an involuntary lien following a successful collection lawsuit. If you fall behind on your taxes, statutory law empowers the IRS to place a tax lien on your property.

Typical secured bankruptcy claims include the following:

• mortgages
• automobile loans
• unpaid property taxes, and
• other liens on real estate.
• You’ll list all secured claims on Schedule D: Creditors With Property-Backed Claims.

What Happens to Secured Claims When a Debtor Files for Bankruptcy?

Creditors who have a secured claim are in a favorable position. A bankruptcy discharge (the court order that eliminates debt) does not eliminate liens on your property. It merely removes your obligation to repay the debt.

Due to the continued existence of the lien, the creditor retains the right to foreclose or repossess the property if the loan is not repaid. Therefore, if you file for bankruptcy and wish to retain property used to secure a loan, you must continue making payments to the lender until the debt is paid off.

However, if a home or car has significant equity, a Chapter 7 trustee will likely sell it. However, due to the lien, the trustee must obtain sufficient funds to repay the loan, return any exemption amount to you (the amount of equity you are permitted to protect), and pay off creditors with the remaining funds. If there is insufficient equity to make meaningful payments to creditors, the trustee will not sell the property.

If the property you wish to retain has a significant amount of equity, a Chapter 13 case is almost always a better option. However, you must have sufficient income to make a substantial monthly payment for three to five years (you must pay the value of the nonexempt equity in the plan).

Getting Rid of Liens in Bankruptcy Certain types of property liens are dischargeable in bankruptcy. For example, you may be able to petition the court to:

• eliminate a judgment lien that interferes with your bankruptcy exemptions, or
• In Chapter 13 bankruptcy, you can eliminate an entirely unsecured junior lien on your property.

How Are Unsecured Claims Defined?

A creditor who has an unsecured claim is not entitled to a lien. Unsecured claims fall into two categories:

• Unsecured claims are given priority. These debts are not dischargeable in bankruptcy and will be paid before nonpriority unsecured claims if funds are available.
• Unsecured claims with no priority. The majority of these debts are dischargeable in bankruptcy (except student loans). Priority debts must be satisfied before bankruptcy funds can be used to pay these debts.

Unsecured Non-Priority Claims

The bankruptcy discharge will eliminate the majority, but not all, nonpriority, unsecured claims. Among the most common unsecured claims that can be discharged in bankruptcy are the following:

• debt incurred through credit cards
• medical expenses, and
• unsecured loans.

Although student loans are unsecured debts, they cannot be discharged unless you can demonstrate that paying them would cause you undue hardship (which is a difficult standard to prove).

Unsecured Claims with Priority

Priority unsecured debts are non-dischargeable and are treated differently. In bankruptcy, priority creditors receive payment before other creditors.

Among the most common types of priority claims are the following:

• alimony
• support for children
• certain tax responsibilities, and
• Debts incurred as a result of personal injury or death as a result of drunk driving.

Because Chapter 7 bankruptcy does not allow you to discharge priority debts, you will be responsible for any balance remaining after your Chapter 7 case (the bankruptcy trustee might sell some of your property and apply the funds to the debt).

If you file Chapter 13, you must repay all priority unsecured debts in full over the course of your three- to five-year repayment plan.

Unsecured claims will be listed on Schedule E/F: Creditors With Unsecured Claims.

Occasionally, it makes sense to file a proof of claim in your bankruptcy on behalf of a creditor who has not done so independently.

When you file for bankruptcy, the majority of your creditors will file a proof of claim – a document that details your debt – in order to be paid. Occasionally, a creditor will fail to file a proof of claim. In rare instances, you may wish to file a proof of claim on behalf of that creditor. This is why.

What Is a Claim Proof?

• Whether your creditors receive anything in your bankruptcy case is contingent on a number of factors, including the following:
• the nature of the creditor’s claim
• regardless of whether you own non-exempt property
• whether you have a source of revenue available to you, and
• regardless of whether you file for bankruptcy under Chapter 7 or Chapter 13.
• If a creditor wishes to be paid in bankruptcy, he or she must file a document called a proof of claim with the court. The proof of claim informs the court about your debt and typically includes documentation substantiating the creditor’s claim.
• Creditors will typically file their own proofs of claim. However, if one of your creditors fails to file a proof of claim, you may file one on its behalf if you wish to ensure that creditor receives payment during your bankruptcy.

Why Would a Creditor Choose Not to Submit a Proof of Claim?

Creditors file proofs of claim in bankruptcy in order to receive a share of any distributions made by the bankruptcy trustee in your case. If a creditor fails to file a proof of claim with the court, even if the creditor otherwise has a valid claim, the creditor will not be paid. However, creditors frequently fail to file proofs of claim in bankruptcy.

A creditor may choose not to file a proof of claim in your bankruptcy if one of the following applies:

• You have a Chapter 7 no-asset bankruptcy (which means you do not have any property that the bankruptcy trustee can distribute to your creditors, thereby preventing them from being paid).
• You owe the creditor a pittance, or
• The creditor does not follow the court’s instructions or makes an error in any other way.

Justifications for Filing a Proof of Claim Against a Creditor

While it may seem strange to file claims on behalf of creditors in one’s own bankruptcy case, it is sometimes necessary. The following section discusses when it may be prudent to file a proof of claim on behalf of a creditor.

You Desire to Consolidate Your Nondischargeable Debts

Certain debts do not disappear simply because you file for bankruptcy. Nondischargeable debts include alimony, child support, certain taxes, and student loans. Due to the fact that you will be responsible for repaying your nondischargeable debts after your case is closed, you want to ensure that these creditors are paid before your other unsecured creditors (such as credit card companies) in your bankruptcy.

This means that regardless of whether you have nonexempt assets that will be distributed to creditors in Chapter 7 bankruptcy or are repaying a portion of your debts in Chapter 13 bankruptcy, you want to ensure that any creditors with nondischargeable debts file proofs of claim with the court. If they do not, it is in your best interest to file a claim on their behalf to ensure that they receive a portion of the proceeds in your case.

You Wish to Make Up for Late Payments on Secured Debt

If you fall behind on your mortgage, car loan, or other secured debts, you may be able to file for Chapter 13 bankruptcy in order to catch up on your payments and keep your property. If the bankruptcy is being used to repay missed loan payments, you must ensure that the creditors you wish to repay (such as your mortgage or car lender) file proofs of claim with the court.

If they fail to file proofs of claim, the trustee may seek court approval to pay off your unsecured creditors in their place. This means that if a secured creditor to whom you intend to pay fails to file its claim, you may be required to do so on their behalf.

When Are Creditors Allowed to File Proofs of Claim?

The majority of creditors must file proofs of claim with the court within 90 days of your creditors’ meeting (government entities have 180 days from when you filed your case). Prior to filing a claim on behalf of a creditor, you must wait until the creditor’s deadline for filing its own claim has expired. After the deadline has passed, you have 30 days to file the creditor’s claim on your behalf.