A brief description of the matter is that I am a creditor in a bankruptcy. I was owed 2 months pay under the WARN Act after they laid me off without notice. I received a claim form and filled it out back in May of 2009. I made a copy of my claim form and mailed the original along with supporting evidence to the firm representing the trustee handling the bankruptcy. My mistake was that I was supposed to mail my to the bankruptcy court clerk.
Three and a half years later, a notice of a dispersement was mailed to my co-workers, at which point I realized that I was not on the list of people receiving a dividend. The firm representing the trustee says they have no record of my submission. The firm representing the trustee recommended that I file a motion with the Bankruptcy Court seeking leave to file an "out of time" or late claim and explain my situation to the Court.
I had planned on arguing excusable neglect and citing Pioneer as the legal authority for the relief I am seeking-i.e., that I filed the claim timely but in the wrong office. I was also thinking that sending the claim to the trustee was at least an informal proof of claim and put him on notice of my claim. Is anyone aware of any case law that supports submitting a timely proof of claim to the trustee as sufficient to preserve the creditor's rights? The bankruptcy is in the 2nd Circuit, SDNY. Thanks.