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Amendments to The Federal Rules of Bankruptcy Procedures – Part 2

In the second part of the Amendments to the FRBP (Federal Rules of Bankruptcy Procedures) we will look into the New Proof of Claim (POC) form and what is now required by mortgage holders and servicers when a loan is in an active Chapter 13.  Effective 12/01/2011 the mortgage holder and servicer must include information on the interest rate and must sign a statement (on the form) attesting that the creditor has attached documentation reflecting a perfected security interest.  In
addition, the signature block on the Proof of Claim form has changed to include boxes for the creditor; creditors authorized agent, trustee, debtor or a guarantor. This may present a problem for mortgage servicers as to who will sign/execute the completed Proof of Claim if they outsource this process. The employee’s of the mortgage holders / services would be authorized to execute the POC without attaching a Power of Attorney (POA).  There are also additional requirements that
include but not limited to an itemization statement of pre-petition interest, fees, expenses (i.e.: property inspections, Broker Price Opinions (BPO)) and charges (i.e.: late charges) that have to be filed with the POC with a statement of the amount necessary to cure any pre-petition arrearages. If the mortgage payments include an escrow for either taxes or insurance or both, an escrow analysis statement needs to be attached to the POC when filing.  In order for the POC to be complete these
additional exhibits, have to be included at the time the POC is filed. If the mortgage holder /servicer fail to complete the POC correctly, the bankruptcy trustee can object to it and you could possibly benefit.  If you have an experienced bankruptcy attorney, he would be monitoring your case and know when to file an objection based on the mortgage company’s non-compliance to the new rules.  Affordable bankruptcy attorneys with expertise in Chapter 13 bankruptcy are also available in the Phoenix Arizona area. You should be aware of these changes in the FRBP as they pertain to your mortgage holder or servicer. To complete the Official Form B10, Attachment A, in part 1 the creditor has to itemize the amount of the principal and interest due as of the date of filing bankruptcy petition and the total interest due as of the petition date which must be
broken down by interest rate and the corresponding time periods. Part 2 requires the description of the fees, expenses and charged that were incurred in connection with the claim with the dates and amounts of each as of the petition date.  This is a lot to understand but there is still some ambiguity with the understanding of these rule changes. You should consult with your Arizona bankruptcy lawyer for advice.  The next article will explore the rest of the FRBP changes and the sanctions that can be handed down from the courts for non-compliance.

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