Filing Proofs of Claim
Debtor’s attorney and the trustee
should examine these added attorneys
fees, expenses and charges with an eye
toward necessity and reasonableness
(i.e., was the preparation of the proof
of claim ministerial; did it require the
services of an attorney; could it have
been prepared by an account specialist
at a more reasonable fee; etc.). In
addition, the debtor’s attorney and
trustee need to determine whether or
not the fee, expense or charge was
necessary to protect the interest of the
secured creditors (e.g., is a property
inspection fee necessary when the
debtor has resumed making mortgage
payments). Finally, the debtor’s
attorney and the trustee must review
these notices with an eye toward: (1)
duplication of fees (e.g., were the fees
for preparing the proof of claim and
reviewing the plan already included
in the proof of claim); (2) the date the
fee was incurred; (3) possible future
Motions for Relief from Stay; and (4)
issues that may arise at the time of
discharge.
such a notice, the debtor or debtor’s
counsel may file the notice stating
that the default has been cured and all
payments required under the plan have
been made. The filing of this notice
at the conclusion of debtor’s chapter
13 plan term triggers subdivision
3002.1(g), which states:
Within 21 days after service of the
notice under subdivision (f) of this rule,
the holder shall file and serve on the
postpetition amounts that it contends
are delinquent. If a statement is filed,
the debtor, debtor’s attorney and the
trustee may review the statement
with an eye toward previous notices
required to be filed as of December
1, 2011 under FRBP 3002.1. There
may be serious repercussions for
secured creditors who failed to file
the appropriate notices during the
bankruptcy term. If the postpetition
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Procedures and Remedies under
FRBP 3002.1 Prior to Discharge
FRBP 3002.1(f) states:
Within 30 days after the debtor
completes all payments under the plan,
the trustee shall file and serve on the
holder of the claim, the debtor, and
debtor’s counsel a notice stating that
the debtor has paid in full the amount
required to cure any default on the
claim. The notice shall also inform the
holder of its obligation to file and serve
a response under subdivision (g). If the
debtor contends that final cure payment
has been made and all plan payments
have been completed, and the trustee
does not timely file and serve the notice
required by this subdivision, the debtor
may file and serve the notice.
In the Central District of California,
most of the trustees have been filing
the notice required under FRBP
3002.1(f). Should the trustee fail to file
debtor, debtor’s counsel, and the trustee
a statement indicating (1) whether it
agrees that the debtor has paid in full
the amount required to cure the default
on the claim, and (2) whether the debtor
is otherwise current on all payments
consistent with § 1322(b)(5) of the
Code. The statement shall itemize the
required cure or postpetition amounts,
if any, that the holder contends remain
unpaid as of the date of the statement.
The statement shall be filed as a
supplement to the holder’s proof of
claim and is not subject to Rule 3001(f).
Subdivision (g) of the rule requires
secured creditors to acknowledge
whether or not the debtor is fully current
with payments. And if not current, it
must file a statement that itemizes the
National Association of Consumer Bankruptcy Attorneys
Summer 2015
amounts are warranted, debtors
will have an opportunity to “come
current.” However, if there is a question
regarding the validity of the postpetition
default listed in the statement, debtors
may exercise their rights under FRBP
3002.1(h) to have the Court determine
the validity of the postpetition charges
prior to discharge.
FRBP 3002.1(h) states:
On motion of the debtor or trustee
filed within 21 days after service of
the statement under subdivision (g) of
this rule, the court shall, after notice
and hearing, determine whether the
debtor has cured the default and paid
all required postpetition amounts.
Under FRBP 3002.1(h) debtors
now have a mechanism available to
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