Amendments to the Federal Rule of Bankruptcy Procedure – Part Three
This third part regarding the Amendment for the Federal Rules of Bankruptcy Procedure (FRBP) go into more detail regarding sanctions against the mortgage holder/servicers for failure to comply with the new rules. FRBP Rule 3001 (c) sanctions for mortgage holder/servicers failure to provide the required documentation and information that can include evidentiary, monetary or punitive damages. One example of an evidentiary sanction is if an objection to the creditors claim is filed the creditor’s failure to provide the required information can result in the court refusing to allow the creditor to introduce the omitted information later, unless the creditor can prove its failure to comply was substantially justified or harmless. This may be hard to prove on the creditor’s part. In addition, a “Committee Note” states a creditor’s failure to provide the required documentation will not result, by itself in a disallowance of the claim. The Proof of Claim signed under penalties of perjury that the statements in the claim are true and correct to the best of my knowledge, information and reasonable belief. The penalty for presenting a fraudulent claim is a fine up to $500,000 or imprisonment for up to 5 years or possibly both.
The changes in FRBP 3001 and 3002.1 come from cases the court finds to be unacceptable. The liability for attorneys and proof of claim preparers who sign the forms is huge and because of the very specific information now required some creditors’
attorneys could be reluctant to sign the proof of claim on their clients’ behalf. It is a good idea if you have a mortgage, are contemplating filing bankruptcy, to seek an experienced bankruptcy attorney that will keep you informed, and monitor your bankruptcy Chapter 13 case for non-compliance by your mortgage company and other possible problems that may arise.
Another change to the FRBP is rule 3002.1 (a) and (b), Notice of Payment change filed no later than 21 days before the new payment is effective. In cases where the mortgage loan is escrowed for taxes and insurance and is in an active chapter
13 bankruptcy, the creditor is required to file the Notice of Payment Change within 21 days from the effective date of that payment change. In addition, an escrow analysis must be attached and filed with the supplemental claim to the original proof of claim. This includes not only escrow changes but also on Adjustable Rate Mortgages (ARM) where the interest rate changes. In the case of an ARM loan, a copy of the ARM Change Notice is required. This notice is required to be served on the debtors counsel, debtor and the chapter 13 trustee. The supplemental claim is part of the claims registry for this purpose. This is a lot of information but still more to come. The last article will be reviewing the sanctions for failing to file a Notice of Payment Change, Notice of Post-Petition fees, expenses and charges and wrapping up with this all means to you. It is always a
good idea to be aware of the possible problems that can arise when in a Chapter 13 bankruptcy. Finding an affordable Phoenix bankruptcy attorney is easier than you may think.