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Do I have a claim in the bankruptcy case?
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To answer this question, you need to determine if your claim is a “claim” as defined under the Bankruptcy Code. The definition of “claim” is significant, among other reasons, because (1) “a claim is the vehicle by which creditors recover money owed to them from property of the debtor’s estate and (2) only claims can be discharged in a bankruptcy case”. Personal and Small Business Bankruptcy Practice in California (2004), §7.2, p. 248 of Chapter 7 by Timothy J. Yoo.
The term “claim” is defined under 11 U.S.C. §101(5) of the Bankruptcy Code, which provides as follows:
(5) 'claim' means -
(A) right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured; or
(B) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured;
You may need to look at other sections and/or definitions of the Bankruptcy Code and research case law to ultimately determine if you have a “claim” and what type of claim(s) you have in your specific case. There are also treatises and practice guides which may help you answer your questions, such as Colliers On Bankruptcy and Personal and Small Business Bankruptcy Practice in California (2004) by J. Scott Bovitz, et al. (Published by CEB of California). These authorities will help you determine if you have a claim, whether you have a secured or unsecured claim, and what type of secured or unsecured claim you may have. However, before you delve further into your first proof of claim, make sure that the deadline to file a proof of claim has not passed. |
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MSD@LACBA.ORG
