STEPHEN MITCHELL, Bankruptcy Judge
This matter is before the court on the objection filed by the debtor on September 12, 1996, to the proof of claim (Claim No. 15) filed by First Union National Bank ("First Union") on June 13, 1996, in the amount of $11,180.43. The objection was served on First Union at the address shown on the proof of claim — although not on the attorney who represented First Union in a motion for relief from the automatic stay filed in this case — and no response was filed. The debtor has accordingly tendered an order disallowing the claim. For the reasons set forth in this opinion, the court will — notwithstanding the lack of creditor response — overrule the objection in as much as the objection fails to state facts that would require the claim to be disallowed.
The proof of claim amends a prior proof of claim (Claim No. 12) filed on November 14, 1995 in the amount of $26,364.98.
First Union's claim arises from an automobile lease dated June 29, 1995, for the lease of a 1995 Pontiac Firebird. The term of the lease was three years. A "Capitalized Cost Reduction (Cash)" payment of $4,345.60 was due on the signing of the lease, together with the first of 36 monthly lease payments in the amount of $321.45 per month. A "disposition fee" in the amount of $250.00 was due at the termination. In addition, the debtor had the option, at the scheduled lease termination, of purchasing the car for $13,265.72 plus an "option fee" of $50.00.
The lease contains various provisions specifying the sums due on early termination of the lease; however those provisions are illegible on all three copies of the lease the creditor has filed with this court (the two proofs of claim and the motion for relief from the automatic stay).
The debtor's plan dated December 6, 1995, provided for the rejection of the First Union automobile lease and for the payment of 45 cents on the dollar on unsecured claims. The plan was confirmed by order dated January 29, 1996. In the interim, the creditor filed a motion for relief from the automatic stay under § 362, Bankruptcy Code, and from the co-debtor stay under § 1301, Bankruptcy Code. The motion recited that the debtor had already surrendered the vehicle. Prior to the scheduled hearing on the motion, the creditor filed a certification that the unpaid lease payments aggregated $9,643.50. The debtor did not respond to the motion or appear at the hearing, and on January 24, 1996, this court entered an order granting relief from the automatic stay permitting First Union to enforce its remedies against the automobile. Subsequent to this order, First Union filed the amended proof of claim that is currently before the court.
First Union Nat'l Bank of Virginia v. Buscher (In re Buscher), Contested Matter No. 95-1533.
The debtor's sole ground of objection to First Union's claim is that the claim is barred by § 502(b)(6), Bankruptcy Code, which provides in relevant part as follows:
(b) [I]f . . . objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that —
* * *
(6) if such claim is the claim of a lessor for damages resulting from the termination of a
lease of real property, such claim exceeds —
(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of —
(i) the date of filing of the petition; and
(ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates;
(emphasis added). Thus, by its plain terms, § 502(b)(6) applies only to a lease of "real property." An automobile, whatever else it may be, is not real property. Thus the statute relied on by the debtor as requiring disallowance of the claim is simply inapplicable.
Under § 502(a), Bankruptcy Code, a properly-filed proof of claim "is deemed allowed" unless a party in interest objects. Additionally, a proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure "shall constitute prima facie evidence of the validity and amount of the claim." F.R.Bankr.P. 3002(f). As a result, the party objecting to a properly filed proof of claim has the initial burden of presenting sufficient probative evidence to overcome such prima facie effect. In re C-4 Media Cable South, L.P., 150 B.R. 374, 377 (Bankr. E.D. Va. 1992). Once the objecting party has done so, the burden of proof then shifts to the creditor to establish the validity and amount of its claim.
Under F.R.Bankr.P. 3007, an objection to the allowance of a claim must be in writing and must be served "with notice of the hearing thereon" on the creditor at least 30 days prior to the hearing. Section 102(1)(B), Bankruptcy Code, permits the court to act without an actual hearing if notice is properly given and if "such a hearing is not requested timely by a party in interest." The objection in this case contains a certificate of counsel reflecting that it was mailed to First Union at the address shown on the proof of claim on September 11, 1996. The objection contained the following notice:
Unless request for hearing is filed with the Clerk of the of the
[sic] United States Bankruptcy Court . . . and a copy served upon the undersigned counsel and the case trustee within thirty (30) days of the date of mailing this Notice, the aforementioned claim will be disallowed as requested.
There can be no question that, where a creditor is served with an objection to claim and fails to request a hearing in a timely manner, the court would ordinarily be justified in accepting as true the well-pleaded averments in the objection and disallowing the claim. However, the court is not a rubber stamp and is not required to disallow a claim, regular on its face, simply because an objection has been served and the creditor has failed to respond. A bankruptcy court remains a court of equity and is not required to grant relief simply because no opposition has been filed. Here, the stated basis for the objection is clearly inapplicable to the claim at issue. Given the prima facie validity of the claim under F.R.Bankr.P. 3002(f), and the objection setting forth no other facts or basis for disallowing the claim other than § 502(b)(6), Bankruptcy Code, the court will overrule the objection.
Under § 5020, Bankruptcy Code and F.R.Bankr.P. 3008, a bankruptcy court may reconsider the allowance of a claim "for cause . . . according to the equities of the case" at any time prior to the closing of the case. Although there is no time limit for bringing a Rule 3008 motion, some courts have held that when such a motion is filed more than ten days after the order allowing or disallowing the claim, "it is properly treated as a motion to vacate pursuant to Fed.R.Civ.P. 60(b), made applicable by F.R.Bankr.P. 9024." United States v. Levoy (In re Levoy), 182 B.R. 827, 832 (9th Cir. BAP 1995).
The overruling of the objection and the resulting allowance of the claim are without prejudice to objection by the debtor or the chapter 13 trustee on any other proper ground.
ORDER
Upon consideration of the debtor's objection to Claim No. 15 filed by First Union National Bank in the amount of $11,180.43, and for the reasons stated above, it is
ORDERED:
1. The objection to claim is overruled and the claim is allowed.
2. The clerk shall mail a copy of this memorandum opinion and order to counsel for the debtor, to First Union National Bank at the address shown on the proof of claim, to counsel for First Union National Bank, and to the standing chapter 13 trustee.