Consumer Bankruptcy Journal Summer 2015 - Page 39

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 “When I was about 4, I thought it would be a good job to be president of the United States. I have long since realized that’s a terrible job. They don’t pay you nearly enough to do for all the stress involved...” 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 CONSUMER BANKRUPTCY JOURNAL 39