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Archive for the ‘proof of claim’ tag

Resolve Mortgage Accounting Disagreements

October 21st, 2019 at 7:00 am

Chapter 13 gives you valuable power to force your mortgage lender to be up front about how much you owe, and to efficiently dispute the amount. 


Catching Up on Your Mortgage over Time

A Chapter 13 case gives you the power to catch up on your home mortgage(s) over an extended period.  This “adjustment of debts” type of bankruptcy can give you up to 5 years to catch up.

This power is found in the U.S. Bankruptcy Code language allowing you to cure “any default within a reasonable time.” Section 1322(b)(5). That amount of time is interpreted to mean, in most circumstances, the length of your Chapter 13 payment plan. Most payment plans are between 3 and 5 years long. If you need more than 3 years, usually you can extend your plan longer, up to 5 years.

The Mortgage Accounting Challenge

If you fall behind on your mortgage it can be ridiculously difficult to get accurate information from your lender about the amount you owe. If you don’t have accurate information, you can’t fulfill your desire and responsibility to cure the arrearage.

This problem is aggravated over the course of the case when the mortgage payment amount changes over time. This could be from normal changes in the interest rate, property tax and insurance, or the addition of fees.

You can’t cure the arrearage or maintain monthly payments if you aren’t timely told the amounts you owe. You can’t efficiently dispute the stated amounts if the lender does not respond in good faith.

This accounting confusion had been a serious problem for millions of homeowners trying to save their homes. In 2011 a new procedure was created within Chapter 13 to efficiently resolve mortgage accounting disputes. It’s contained in Rule 3002.1 of the Federal Rules of Bankruptcy Procedure. It gives you the power to force your lender to work with you to determine how much you owe.

How the Procedure Works

The procedure focuses on changes to the ongoing mortgage payment amount.  You can’t catch up on the arrearage if that arrearage increases because you’re not paying the right monthly payment. 

Your lender “shall file and serve on” you, your bankruptcy lawyer, and your Chapter 13 trustee “any change in the payment amount.” This includes “any change that results from an interest rate or escrow account adjustment.” This notice must be given “no later than 21 days before a payment in the new amount is due.” Rule 3002.1(b) of the Federal Rules of Bankruptcy Procedure.

You or your lawyer can object to the change in the lender’s notice. You must do so before that new payment is due. If you don’t object on time, the lender’s payment change goes into effect.

If you do object, the bankruptcy judge determines whether the lender’s proposed new amount is appropriate or not.

This procedure forces the lender to be up front about changes in how much you owe. It allows you to dispute those changes, and to get a quick court determination about who is right.


The Chapter 7 Trustee Looking into an Asset

May 10th, 2017 at 7:00 am

What happens when something you own is not or may not be exempt (protected)? What does the trustee do about this and what is the end result?


Chapter 7 is the “liquidation” form of bankruptcy. But in our last blog post we introduced the bankruptcy trustee as an only sometimes liquidator. That’s because in most Chapter 7 cases nothing gets liquidated. Nothing gets taken from you and sold to pay your creditors. And that’s because most of the time everything you have is “exempt,” protected.

But what happens when you own something that is not covered by your allowed property exemptions?

One of two things will happen. The trustee looks into it and decides your asset is not worth liquidating after all. Or he or she may decide it is worth liquidating. We cover the first situation today, the second one in an upcoming blog post.

Three Scenarios

Your trustee may get interested in an asset of yours under these three scenarios:

  • You disclose on your asset and exemption schedules that you own an asset not covered by an exemption.
  • The trustee believes you may have undervalued an asset.
  • The trustee disputes that an exemption you claimed applies to your asset.

We get into the first of these scenarios today.

Disclosed as Not Exempt

When filing a bankruptcy case you list your assets, or property, on Schedule A/B. Then on Schedule C you list the “Property You Claim as Exempt.”

Again, often you show that everything on Schedule A/B is completely exempt on Schedule C. But let’s say there’s something that’s shown not to be exempt. Let’s say you own a second vehicle, and your first vehicle’s value exhausts the amount of vehicle exemption available in your state. So in this scenario your second vehicle is not exempt.

So the trustee sees that and wants to check out this non-exempt asset, to see if it worth liquidating. Assume you’ve valued it at $1,000 based on the fact that it’s old, needs brakes and maybe some transmission work.

The trustee may or may not decide it’s worth taking this vehicle from you to sell and pay its proceeds to your creditors.  The trustee has a lot of discretion of deciding this.

So in this scenario he or she may ask to have you take it to a particular vehicle repair shop for an independent assessment about the seriousness of the required repairs, and the likely saleable value of the vehicle. Let’s say the repair shop verifies that your vehicle needs new brakes and has a definite transmission problem. The trustee finds out that in light of this your $1,000 valuation was fair, or maybe even a little generous.

Factors in the Trustee’s Decision

You may think that for sure the trustee will take the vehicle. After all, getting $1,000 to your creditors is better than them getting nothing, right?

But the creditors wouldn’t likely get anywhere close to $1,000, even if the vehicle sells for that much. The trustee knows that there are liquidation costs that would offset any sale proceeds. These likely include towing and storage fees, and auction or advertising costs. Plus the trustee gets paid a fee—usually about 25% of the first $5,000 collected. (See Section 326 of the U.S. Bankruptcy Code.)

The trustee will likely look at the number, amount, and the nature of the debts. If there are a lot of debts adding up to a relatively large amount, so that a very small percentage of the debts would get paid out of the vehicle sale proceeds, the trustee would be less inclined to take and sell the vehicle.

If you owe a “priority debt”—such as recent income taxes, the trustee may be less inclined as well. That’s because that tax debt gets paid before anything goes to the other debts. So if the tax debt is more than the amount available to pay out to all the creditors, all the money would go to the tax debt. No other debts would be paid. Since this kind of tax debt survives Chapter 7 bankruptcy, you would have to pay it anyway. So there’s very little practical benefit to the trustee paying part of it by selling your second vehicle.

The Relatively Detailed Distribution Procedure

Finally, there’s a fair amount of effort for the trustee involved in the distributing of funds to creditors. All creditors are given an opportunity to file “proofs of claim.”  The trustee has to review each of them to see if they are valid, objecting to those that appear not to be or that need more documentation. Then the trustee may prepare and the court sends out a notice about the proposed sale of the vehicle. Creditors and other interested parties could object to it. Then there’s a notice about the proposed distribution of the funds to creditors, which could also be objected to. Same thing with the trustee’s proposed fee (although some of these notices may be consolidated into one).

This is a lot of paperwork, over the course of several months, all of which takes effort by the trustee. Most trustees are not going to go through all that for a couple hundred dollars.

“Insufficient Assets for a Meaningful Distribution”

So, there is a good chance that in this situation the trustee would decline to take that second vehicle. He or she would formally report that there are “insufficient assets for a meaningful distribution to the creditors.” The trustee would declare the case to be a “no-asset” Chapter 7 case—there are no assets worth liquidating and distributing.


Objecting to a Proof of Claim to Defeat a Creditor

January 2nd, 2017 at 8:00 am

If your liability dispute with your creditor spills into your Chapter 13 case, the bankruptcy court may be a good forum to fight it out.


Our last three blog posts were about objecting to a creditor’s proof of claim in a Chapter 13 case. Today we look at situations when this is the most important part of your case.

Bringing a Liability Dispute to the Bankruptcy Court

It’s not unusual that a dispute with a single creditor forces a person into bankruptcy. Often it’s just one otherwise ordinary creditor which is more aggressive than the others, suing you ahead of the others, and then garnishing your paycheck or bank account.

Sometimes it’s not just any extra-pushy creditor, but rather one that you’ve been fighting for quite a while. The fight you are having with that creditor may be the main reason why you filed bankruptcy.

Maybe you were in a serious vehicle accident, and did not have enough insurance coverage. You are being accused of causing the accident but don’t believe you were its primary cause. Because of major injuries to others you potentially owe hundreds of thousands of dollars.

Or you operated a business that looked promising for a while but then failed. You were accused of mismanagement by a partner or investor and were sued. Fighting this lawsuit has drained you financially.

Or perhaps you were accused of unduly influencing a parent or other family member to change his or her will. That turned into a contentious lawsuit against you.

The attorney fees and other costs of fighting the dispute have pushed you over the financial edge.

You’re in a Chapter 13 Case

Assume you either didn’t qualify for Chapter 7, or you needed the special tools of Chapter 13 to deal with special debts like your home mortgage or income taxes. So you’re in a Chapter 13 “adjustment of debts” case.

When a Single Creditors’ Proof of Claim Amount Makes All the Difference

As we discussed in recent blog posts, sometimes the amount of debts you have does not change how much you need to pay into a successful Chapter 13 case. But often it does matter. Your main adversary before you filed the Chapter 13 case may still try to make you pay too much to it through your payment plan. Or that adversary may even jeopardize your ability to have a successful case.

For example, your financial circumstances may require you to pay 100% of your debts in a Chapter 13 plan. If so your liability on a large claim could substantially increase how much and/or how long you’d have to pay. Assume you could otherwise finish your plan in 36 months by paying $750 monthly into your plan. An additional $18,000 proof of claim by your adversary could force you to pay that $750 monthly for two additional years. An even larger claim could force you to pay more than you could reasonably pay each month. If that proof of claim resulted in more debt than you could pay in 5 years, Chapter 13 would cease to be an option.

One way to solve these problems is to object to this adversary’s proof of claim.

Failure to File a Proof of Claim on Time

If you believe you don’t owe an adversary anything, you’d still list the disputed claim in your schedule of creditors. Otherwise you lose the opportunity to discharge (write off) that disputed claim.

Your adversary has a limited time to file a proof of claim with the bankruptcy court. If it fails to do so on time, you don’t have to pay it anything in your Chapter 13 case. The claim is then discharged without any payment at the successful completion of your case.

But it’s not likely that your adversary would mess up like this.

Objection to a Proof of Claim

More likely, your adversary would file a timely proof of claim. That claim would stand and you’d have to pay it under the terms of you plan unless somebody—usually you—objects to it.

If you object, and your adversary doesn’t respond, the claim would be paid according how you state in your objection. So if your objection states that you owe nothing at all on the claim, again you would pay nothing.

It’s not unheard of that your adversary would simply not respond to your objection. Just like you, it may be tired of paying attorney fees, likely now also to a bankruptcy specialist. Your bankruptcy documents filed under oath may reveal to your adversary better than ever before that you have no pot of gold and so it’s wasting its time and money chasing you.

Responding to Your Objection

If your adversary does respond to your objection, the bankruptcy court could potentially decide whether you have any liability on the claim, and/or its amount. If a lawsuit on this was already pending in another court when you filed bankruptcy, the bankruptcy court may require the liability dispute to go back to that prior court to determine your liability.

Even so, for the reasons mentioned above there’s usually less incentive for your adversary to keep fighting you as aggressively as before.


If you are in a Chapter 13 case which is affected by how much debt you owe, your main adversary may mess up and fail to file a proof of claim. Or if it does file a proof of claim but you object to it, your adversary may fail to respond. Even if this adversary does jump through all the procedural hoops, its prospect of paying additional costs and a receiving a limited payoff usually forces it to be more pragmatic and settle the dispute.


Objecting to a Proof of Claim to Prevent Dismissal

December 30th, 2016 at 8:00 am

If a creditor’s proof of claim is too large, you may need to object to it to avoid dismissal of your Chapter 13 case.

Our last blog post was about two situations when it’s worth objecting to a creditor’s proof of claim in a Chapter 13 “adjustment of debts” case. Today we present two more such situations.

Often the Creditors’ Proof of Claim Amounts Don’t Matter

Often, the amount of money you would pay under Chapter 13 towards your “general unsecured” debts is a fixed amount. It’s based on what you can afford to pay during your case, after paying off any “priority” and secured debts. Because there’s usually a fixed dollar amount that is spread among the “general unsecured” debts, shifts in the amount of such debts often do not affect how much you pay in your Chapter 13 plan.  Since it makes no monetary difference to you, in these situations you usually don’t bother disputing the debt amounts.

Our last blog post referred to two situations when the creditors’ proof of claim amounts DO matter—on “priority” and certain secured debts. These are debts in which you pay the debt in full during your Chapter 13 case. So every dollar by which a proof of claim is higher than expected is an extra dollar you’d have to pay.  

100% Chapter 13 Plan

In a relatively small portion of Chapter 13 cases, the debtor pays all creditors in full—a so-called “100% Plan.” In those cases, you’d pay the full amount of all allowed proofs of claim through your payment plan. So if a creditor files a proof of claim on a debt that isn’t valid, or for an amount that is excessive, your bankruptcy lawyer must file an objection to prevent it from being paid.

There’s an additional concern here. Chapter 13 cases are not allowed to last more than 5 years. If there is more debts than you can afford to pay off in 5 years, your case is subject to being dismissed—thrown out. That could happen if one or more creditors filed unexpectedly high proofs of claim.   

An Example

Here’s an example. Say that you have $30,000 in expected “general unsecured” debts. Your home has $50,000 in equity beyond what the homestead exemption protects. So under Chapter 13 you must pay your $30,000 in “general unsecured debts” in full to protect your home. Let’s assume that you are making Chapter 13 plan payments of $500 per month. 5 years, or 60 months, of $500 payments would total $30,000. (Assume no “priority” or secured debts, and disregard trustee and attorney fees to simplify the math.)

If a creditor files a proof of claim for $10,000 more than you expected, this would be a problem. Now you have debts totaling $40,000 instead of $30,000. At $500 per month, that extra $10,000 would take an additional 20 months to pay off, a total of 6 years and 8 months. But that would not be allowed since Chapter 13 payment plans must be completed in 60 months—five years. Your case could be dismissed unless you could afford to pay more each month—about $667—to get it done within that five years.

So, if you had valid grounds for objecting to an unexpectedly high proof of claim, you should object. If you succeed, you’d save that much money, and avoid your case from being dismissed.

Jurisdictional Limits

Here’s a second situation when unexpectedly high proofs of claim could result in the dismissal of your case, unless you successfully objected.  

Under Section 109(e) of the Bankruptcy Code you can’t be a debtor in a Chapter 13 case if you owe too much money. The maximums are $394,725 in unsecured debts and $1,184,200 in secured debts (as adjusted for inflation effective April 1, 2016). So if an alleged creditor files a questionable proof of claim which pushes you beyond these limits, that could bounce you out of your Chapter 13 case.

If so, you may instead have to file a Chapter 7 case and do without the benefits of Chapter 13. Or you may have to do a Chapter 11 “reorganization,” a much more expensive procedure than Chapter 13. Or finally, you may have to deal with your debts without the benefit of any bankruptcy alternative. 

So instead you’d object to the proof of claim so that you can stay in the Chapter 13 case.


Objecting to a Creditor’s Proof of Claim in Chapter 13

December 26th, 2016 at 8:00 am

If you object to a creditor’s proof of claim in your Chapter 13 case, and prevail in that dispute, you pay nothing on that debt.


Our last blog post was about what happens to creditors who fail to file a proof of claim on time in a Chapter 13 “adjustment of debts” case. The creditor’s debt receives no payment through your Chapter 13 plan, and the debt is discharged—written off.

There’s another way to achieve this same result. Your bankruptcy lawyer can object to a creditor’s proof of claim if you don’t owe the debt as stated.

If the Creditor Does Not Respond to the Objection

Creditors sometimes file proofs of claim that are clearly not legally valid. Your debt may no longer be collectable because the statute of limitation has expired. An ex-spouse may owe the debt on which you’re not liable. Someone with the same name as you may owe the debt instead of you.

In these and similar situations your lawyer would likely file an objection to the proof of claim. Otherwise the legally invalid debt would be treated as a legitimate one. That illegitimate claim could share in whatever you are paying other similar debts under your Chapter 13 payment plan.

When there’s a clearly invalid proof of claim, the creditor would likely not even respond to your lawyer’s formal objection. Or if the creditor does respond, there’s a good chance it can be convinced to withdraw its proof of claim. Creditors can be penalized for legally pursuing a clearly invalid debt.

So the creditor may not respond to your lawyer’s objection or may respond but be quickly convinced that the debt’s not valid. Either way, the objection prevails and the bankruptcy judge throws out the proof of claim. You pay nothing on that debt through your Chapter 13 plan.

Even if a creditor believes that you owe the debt, it may still not respond to the objection. Depending on the terms of your Chapter 13 plan, the creditor may decide that the cost of fighting the objection is not worth what you would pay it under the plan. Or the creditor may just mess up and not get around to responding by the deadline. For whatever reason, if a creditor fails to respond timely to your objection, its proof of claim is thrown out. Again, you pay nothing on that alleged debt.

If the Creditor Responds to the Objection

However, if you and your lawyer file an objection to a creditor’s proof of claim, and the creditor responds and appears committed to fighting this fight, then you and your lawyer need to decide whether the fight is worth fighting.

It may not be worth fighting if allowing that proof of claim won’t make any practical difference in your case. Or it may not be worth fighting if the likely practical difference is less than the costs of fighting it.

When Liability on a Debt is a Big Deal

This whole discussion makes more sense if we explain the following. With most debts it’s clear whether or not you owe the debt, and its amount. But with some debts either your liability or the amount you owe, or both, can be very unclear. Indeed, people are often pushed into bankruptcy because of a contentious legal dispute about an alleged debt. Examples include:

  • liability disputes in a multi-vehicle accident with insufficient insurance
  • family fights about a deceased relative’s assets
  • litigation among or between a business’ owners and investors about the operation or closure of the business

So, a complicated dispute or litigation that was raging before the bankruptcy was filed could well just continue on in the bankruptcy court. Both sides’ decisions about whether to continue that fight turns on financial practicalities of the Chapter 13 case.

If you’re in this situation, assume the creditor files a proof of claim showing what it thinks it’s owed.  Presumably you disagree either as to owing anything, or the amount claimed, or both. But you need to decide whether it’s worth objecting to it and bringing that fight to the bankruptcy court. If it doesn’t make any or enough financial difference in your Chapter 13 case, it’s probably not worth objecting. Or it may be worth objecting just to see if the creditor responds. But then if it does, letting the creditor win on its claim.

May Not Be Worth Objecting

There are Chapter 13 payment plans—maybe the majority of them in most jurisdictions—in which most creditors’ proofs of claim makes no difference in what the debtor pays. These are cases in which the debtor basically pays what the debtor can afford during a set period of time. That stream of payments pays certain amounts to any secured and “priority” debts, then whatever’s left over goes to the “general unsecured” debts. Assuming that the disputed debt is a “general unsecured” one—as is usually the case—its amount likely won’t matter.

That’s because the total amount of all “general unsecured” proofs of claim often has no effect on the dollar amount the debtor pays. The pool of “general unsecured” debts gets paid the same amount regardless. The larger total amount of debt in that pools simply shifts around who shares in that amount. The percentage of the debts paid is just reduced to account for more debt in that pool.

Consider This Example

Assume that, as is often the case, you are paying much of your Chapter 13 plan payments to secured and/or “priority” debts. You are catching up on and then paying a vehicle loan, catching up on child support arrearage, and/or paying an income tax debt. Let’s say that over the life of your Chapter 13 case you are paying a total of $15,000 to all your “general unsecured” debts. This is based on what you can afford to pay over your case’s 3-to-5-year life. (The required length is based mostly on your pre-filing income.)

Assume further that you have 10 undisputed “general unsecured” debts totaling $75,000. There’s one more disputed debt, one you don’t believe you owe but the alleged creditor asserts you owe $30,000, on top of the $75,000 you don’t dispute. Without that $30,000 debt, you’d be paying 20% of your “general unsecured” debts—$15,000 paid out of $75,000 owed. With that additional $30,000 claim allowed, you’d be paying about 14% of your “general unsecured” debts–$15,000 of $105,000.

But in most situations, the amount you are paying into your Chapter 13 plan to your “general unsecured” debts—the $15,000 here—would not change. Your other “general unsecured” debts would simply receive somewhat less to make up for the amount the disputed debt receives. In most situations like this you wouldn’t invest the time and attorney fees to dispute that proof of claim. It simply wouldn’t affect you financially.

Sometimes Very Worth Objecting

But there are definitely situations where allowing a disputable proof of claim to stand unopposed would cost you.  It could dramatically increase how much you would have to pay into your Chapter 13 plan before completing it. Such a proof of claim could even jeopardize your ability to complete your Chapter 13 case successfully.

In our next blog post will get into situations when you’d want to object strenuously to an objectionable proof of claim.


Creditor’s Failure to File a Proof of Claim in Chapter 13

December 23rd, 2016 at 8:00 am

If a creditor doesn’t file a timely proof of claim on a debt in your Chapter 13 case, you pay nothing on that debt. 

Our last blog post was about Chapter 13 “adjustment of debts” cases in which you don’t pay anything on any of your “general unsecured” debts. In parts of the country where that’s allowed, those debts are fully and forever discharged after you pay nothing. That’s a pretty good debt “adjustment.”

But that can happen only in certain circumstances, with certain combinations of debts, assets, income and expenses. What’s much more common is a Chapter 13 case in which you would pay nothing only to certain creditors. That happens often because creditors regularly fail to file their proofs of claim on time with the bankruptcy court.

Sometimes that has little or no effect on how much you pay into your Chapter 13 plan before it’s completed. But sometimes it makes a huge difference. It could potentially save you lots of money, or even significantly shorten the time you’re in your payment plan.

Proofs of Claim in Chapter 13

Chapter 13 cases are usually 3- to 5-year payment plans. You would usually file one so that you could focus on paying certain special debts. Those special debts are either secured or “priority” debts. For example, you may want to catch up on arrearage on your home mortgage so that you could keep your home. Or you may need to pay income taxes that wouldn’t be discharged in a Chapter 7 case. The rest of your debts—“general unsecured” ones—usually just get whatever money you have left over the course of your Chapter 13 plan.

The Chapter 13 documents that your lawyer files at the bankruptcy court include a complete “schedule” of all your debts. The creditors on those debts all receive notice of your case. They are required to file a “proof of claim” stating how much you owe and the nature of the debt. A creditor that fails to file a timely proof of claim receives nothing through your Chapter 13 case. Then, unless the debt is of a kind that does not get discharged, it gets discharged when you successfully complete your case.

Focus on “General Unsecured” Debts

As mentioned above, you usually WANT to pay certain debts—such as a home mortgage arrearage and nondischargeable income taxes. So you want to be sure certain creditors DO file proofs of claim.

But usually you don’t care whether any particular “general unsecured” debt gets paid. In fact if it saves you money, you prefer that such creditors DON’T file a proof of claim. So the question is, what happens when a creditor with a “general unsecured” debt fails to file a timely proof of claim?

It depends on the terms of your Chapter 13 plan.

When It Doesn’t Make Any Monetary Difference

Many Chapter 13 plans have a designated amount that the debtor is paying towards the “general unsecured” debts. That amount is essentially what’s left over after the secured and priority debts are paid. Usually that’s less than the total amount of the “general unsecured” debts—often much less.

For example, if you have $50,000 in “general unsecured” debts you may have only $5,000 available to pay on those debts over the 3-to-5-year span of your plan. That’s a 10% payment plan. If one creditor with a $10,000 debt fails to file a proof of claim, it usually wouldn’t make a difference. You’d likely still need to pay $5,000 towards your “general unsecured” debts. But now that same amount would be distributed over the remaining $40,000 of debts. So you’re paying 12.5% of the remaining $40,000 in debts. Your same $5,000 is just spread out over fewer debts, with no monetary difference to  you.

When It Does Make a Monetary Difference

Although not terribly common, there are Chapter 13 plans requiring the debtor to pay the “general unsecured” debts in full. That’s a 100% plan. If one creditor fails to file a timely proof of claim, the amount the debtor must pay is reduced dollar-for-dollar. Not having to pay that debt can result in a lower monthly plan payment, a shorter plan, or both.

If the debt or debts without a filed proof of claim is/are large, this can significantly shorten your case.

A similar result can happen in a high percentage payout case, with a twist. Take the example of a debtor paying 90% of the “general unsecured” debts. If no proof of claim is filed on a significant debt, the money that had been earmarked for it would likely go to the other debts. But once all the “general unsecured” debts with proofs of claim are paid 100%, the debtor would not have to pay any more. That Chapter 13 case would be shortened accordingly.  

Every once in while a creditor or set of creditors fail to file proofs of claim so that little or no “general unsecured” debts are left. Conceivably that Chapter 13 case could be over in a matter of just a few months, instead of years.


Definitely talk with your own bankruptcy lawyer about this, because different Chapter 13 trustees and judges may have different practices and procedures. Chapter 13 trustees sometimes file proofs of claim on behalf of creditors to avoid a missed deadline. Or a bankruptcy judge may determine that a creditor did not get adequate notice of your bankruptcy case in order to be held to the proof of claim deadline.

Also, your lawyer can tell you the creditors’ deadline to file their proofs of claim. Then you can monitor the filed proofs of claim and their potential impact on your case.


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