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Chambers' Bulletins

Judge Duncan

Tue, 6/19/2018 - 3:00 pm

Judges Waites and Duncan have revised the procedure for chapter 13 conduit plans in their cases. A new operating order has been entered to implement the procedures. The new order replaces the amended operating order 16-02 and the interim language for use in section 8.1 of chapter 13 plans posted for use in Judge Duncan’s cases. Any questions regarding language in section 8.1 in Judge Waites’ cases may be directed to Trustees Wyman and Stephenson.

The new procedures are effective in cases filed on and after August 1, 2018. The major differences are that chapter 13 plans containing provisions for post-petition mortgage payments must adopt the conduit payment method when the collateral is a principal residence and if there is a default in payments other than a technical default (for example due to late payment charges or a shortage in payment of less than one monthly payment) that can be cured within 30 days of the petition date. Please consult the operating order in its entirety for other changes and for the small differences in procedure between the two judges (relating to loss mitigation for example).

These changes do not apply to chapter 13 cases assigned to Judge Burris.


Thu, 4/05/2018 - 4:11 pm

At the request of the debtors' bar, the Request for Order Authorizing Loss Mitigation/Mortgage Modification event is now available for use in chapter 7 cases (Judge Duncan and Judge Burris cases only).  The event may be used one time only, and can only be filed once the chapter 7 trustee has filed a report of no distribution or a report of abandonment of the specific property on which the debtor intends to pursue loss mitigation.  A copy of the resulting order is available here.  Note that the chapter 7 order provides that “the issuance of this order does not extend any time period or deadline in this case.” Additionally, the language of the Request for Order Authorizing Loss Mitigation/Mortgage Modification in Judge Duncan and Judge Burris chapter 13 cases has changed slightly to conform to the language of the chapter 7 order and to provide clarity.  The title of the Order has changed from "Order Authorizing Loss Mitigation/Mediation" to "Order Authorizing Loss Mitigation/Mortgage Modification", and the second sentence of the order has been revised to add "at their discretion" after "Debtor(s) and Creditor", reflecting that although the stay is lifted to allow the parties to engage in loss mitigation, doing so  is within the discretion of the parties.  A copy of the revised order is available here.


Thu, 11/30/2017 - 2:33 pm

The Judges are continuing to consider revisions to their Operating Orders regarding conduit mortgage procedures with the hopes of adopting uniform language to be used in plans in conduit cases.  Until a revised Operating Order is announced for Judge Duncan, for conduit cases filed on or after December 1, 2017, the following language, also available here, should be included in Section 8.1 of the chapter 13 form plan:

8.1 (a) Mortgage payments to be disbursed by the Trustee (“Conduit”)

Mortgage payments, including pre-petition arrears, will be paid and cured by the Trustee as follows: 

Name of Creditor

Description of Collateral

(note if principal residence; include county tax map number and complete street address)

Current installment payment (ongoing payment amount) *

Monthly payment to cure GAP ** (post-petition mortgage payments for the  two (2) months immediately following the event beginning conduit)

Estimated amount of PRE-PETITION ARREARAGE** (including the month of filing or  conversion)*

Monthly payment on pre-petition arrearage

 

 

$
Escrow for
taxes:
☐ Yes
☐ No

Escrow for
insurance:
☐ Yes
☐ No

$
Or more

$
 

$
Or more

 

 

$
Escrow for
taxes:
☐ Yes
☐ No

Escrow for
insurance:
☐ Yes
☐ No

$
Or more

$

$
Or more

 

* Unless otherwise ordered by the court, the amounts listed on a compliant proof of claim or a Notice filed under FRBP 3002(c) control over any contrary amounts above, and any Notice of Payment Change that might be filed to amend the ongoing monthly payment amount.

** The Gap will be calculated from the payment amounts reflected in the Official Form 410A Mortgage Proof of Claim Attachment and any Notice of Payment Change that might be filed to amend the monthly payment amount, but should not be included in the prepetition arrears amount.

 

All payments due to the Mortgage Creditor as described in any allowed Notice of Post-petition Mortgage Fees, Expenses, and Charges under F.R.B.P. 3002.1, filed with the Court, will be paid by the Trustee, on a pro rata basis as funds are available. See the Operating Order of the Judge assigned to this case. 

 

Once the trustee has filed a Notice of Final Cure under F.R.B.P. 3002.1(f), the debtor shall be directly responsible for ongoing mortgage payments and any further post-petition fees and charges.

 


Tue, 11/28/2017 - 11:02 am

Amended Chambers Guidelines for cases assigned to Judge Duncan, effective December 1, 2017, are available here and will be posted soon on the Court's webpage.

A further revised Operating Order 16-02, for chapter 13 conduit mortgage plans or a new order, will be entered and published soon and you will receive separate notice of entry, or interim language that is acceptable for inclusion in section 8 of the chapter 13 form plan in cases assigned to Judge Duncan until the new Operating Order is adopted. Judge Duncan is awaiting the results of the divisional workshops being hosted by Judge Waites and Judge Burris and hopes to have uniform language.


Thu, 3/16/2017 - 10:44 am

The following changes apply to cases assigned to Judge Waites and Judge Duncan and are effective starting March 30, 2017, unless otherwise advised.

Attorney’s Fees for Chapter 13 Cases

After consultation with members of the Chapter 13 bar, Judge Waites and Judge Duncan adopt the following changes regarding attorney’s fees in Chapter 13 cases:

1.      Increase the allowable expedited fee (no-look fee) to $3,700 for a consumer case and $4,200 for a self-employed/small business case and provide an additional $500 no-look fee for representing a debtor in a contested confirmation hearing.

2.      Increase the amount of supplemental fees debtor’s counsel may claim under SC LBR 2016-1(b)(2)(A) to $2,000, subject to no more than $1,200 in fees being requested in a one year period.

3.      Authorize the Chapter 13 Trustee to disburse to counsel $1,500 of the expedited fee as part of the initial disbursement.

In addition, for Judge Waites’ cases, the guidelines provide the opportunity for a higher no-look fee in extraordinary cases where from the beginning of the case the attorney’s fees are expected to be above the standard no-look fee amount due to the complexity of the case and upon certification of counsel

A copy of the guidelines for Judge Waites are available here. Judge Duncan’s guidelines will be changed if necessary upon a future posting.


Wed, 3/01/2017 - 5:08 pm

Judge Duncan has made minor revisions to the Chapter 13 Matters section and Exhibit F of his Chambers Guidelines to bring the guidelines in conformance with the amendments to SC LBR 3015-2.  Minor revisions have also been made to Exhibits A and B to the Chambers Guidelines to reflect a recent name change of the CM/ECF event for "Adversary Proceeding Report."


Tue, 1/17/2017 - 1:19 pm

To assist in efficiently handling 362 settlement orders in conduit cases, the Court has made available a new form settlement order in Judge Duncan cases only. A sample is available here. The Request for Settlement Order on Motion for Relief from Stay event has been modified to require users to indicate if the bankruptcy case is changing from a non-conduit to a conduit case. After selection of the conduit option and proper input of the required information, the trustee is notified of the request for a settlement order, and upon her consent, the new form settlement order will be generated and sent to Judge Duncan for review and signature


Mon, 12/05/2016 - 4:52 pm

The Operating Orders (16-02 and 16-03), which govern Conduit Mortgage Payment Procedures, have been amended. The revisions are: (1) to revise footnote 13; (2) to amend Exhibit C, the form to be used for a debtor to consent to payment of funds to affected mortgage creditors and the debtor’s attorney upon conversion or dismissal and to rename it Exhibit C.1; and (3) to add Exhibit C.2, a form order to be used in cases being converted when the debtor has signed a Consent in accordance with Exhibit C.1. The revised Operating Orders are available here.
Additionally, the Court has made new CM/ECF events available to be used in chapter 13 conduit cases. The events are as follows:

  1. Exemption from Conduit Mortgage Payment Requirement. The event is located in the Motions/Applications menu and may be used by any party seeking an exemption from the conduit mortgage payment requirement. This event may be used in Judge Duncan’s and Judge Waites’ cases.
  2. Mortgage Creditor Report. The event is located in the Other and Creditor Claims Actions menu and may be used by a mortgage creditor for filing its report in response to a Trustee’s Request for Mortgage Creditor Report. This event may be used in all Judges’ cases.
  3. Consent Allowing Payment of Funds to Creditor(s) and Debtor(s) Attorney-Conduit. The event is located in the Other menu and may be used by a debtor to consent to payment of funds to a conduit mortgage creditor and to the debtor’s attorney in the event of a conversion or pre-confirmation dismissal of the case. This event may be used in all Judges’ cases, and the Judges encourage the filing of the Consent at the beginning of the case whenever possible. In any event, the Consent must be filed before an order allowing the payment can be obtained. Note that it is the debtor’s attorney’s responsibility to ensure that an order is proposed to the Court at the time conversion is requested. A form order for use in cases being converted is available here.

The Plan and Amended Plan events have also been revised to add an option to designate the plan as a conduit plan. Additional events have also been made available for use by the chapter 13 trustees.


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