In addition to the new LM/MM Guidelines, Judge Waites and his law clerks will review changes to the Conduit Procedure at the bar meetings scheduled for Thursday, June 21, 2018 in the Charleston courtroom and Tuesday, June 26, 2018 in the Columbia courtroom. The meetings will be held after Court concludes each day (approximately 10:30 AM).
If you have not already done so, please sign up for the meetings by contacting Andrew Powell at Andrew_Powell@scb.uscourts.gov.
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.
Judge Waites invites members of the bankruptcy bar and their staff to a meeting to review the new LM/MM Guidelines, which will be effective on July 1, 2018. The Charleston Meeting will be held in the Charleston courtroom on Thursday, June 21, 2018 after Court concludes (approximately 10:30 A.M.). The Columbia Meeting will be held in the Columbia courtroom on Tuesday, June 26, 2018 after Court concludes (approximately 10:30 A.M.). Chambers expects each of these meetings to be no longer than one hour.
If you are planning to attend, please RSVP by email to Andrew Powell (Andrew_Powell@scb.uscourts.gov).
Attendance by telephone will be considered for counsel or staff whose offices are located more than 30 miles from the court location, and should be requested by contacting Regina Schmidt (Regina_Schmidt@scb.uscourts.gov) and Agnes Babb (Agnes_Babb@scb.uscourts.gov) no later than 24 hours prior to the scheduled meeting.
The Portal LM/MM process continues to be a successful means for debtors and creditors to address mortgage debt as recent statistics suggest that more than 70% of completed reviews result in trial modifications, permanent loan modifications and other arrangements beneficial to the parties.
In an effort to continue to improve the Portal LM/MM process and after input from members of the Bar who are most active in the LM/MM program, Judge Waites has made certain changes to the applicable Chambers Guidelines to be effective July 1, 2018.*
The changes primarily provide more time for the completion of the Debtor’s Prepared Package, and the scheduling of court hearings as backstops to ensure the timely exchange of information. More complete information will allow for a more effective mediation process when needed.
The updated LM/MM guidelines are attached below. Updated forms and orders will be forthcoming. In addition, chambers will be hosting bar meetings in June for the Charleston and Columbia divisions to review these LM/MM changes.
In the meantime, members of the Bar may provide comments or suggestions in writing to Andrew Powell (Andrew_Powell@scb.uscourts.gov) no later than June 14, 2018.
* In anticipation of these updated guidelines, the Court has revised and is presently using LM/MM orders that reflect these modified procedures.
At the recent 2018 Annual Seminar of the South Carolina Bankruptcy Law Association (SCBLA), I, on behalf of the other charter applicants—George Cauthen, Janet Haigler, and Jimmy Wyman—announced the approval of the J. Bratton Davis Bankruptcy American Inn of Court for the District of South Carolina.
One of the missions of the Inn is to promote excellence in legal advocacy and skills as well as emphasize ethics, civility and professionalism through social programs and discussions amongst lawyers, judges, and academics. A primary goal is to mentor young lawyers and students and pass along the ethical and professional values from one generation of legal professionals to the next. We are pleased that Judges Duncan and Burris, and retired Judge Bishop have accepted invitations to join the Inn.
The charter applicants view its formation as a compliment to the outstanding educational programs and activities of SCBLA and a further way to highlight what makes our practice special, including to honor the legacy of J. Bratton Davis, who, as our District’s first and longest serving judge, set a high standard of civility and respect.
The following video of Judge Davis demonstrates in just a few minutes his class and generosity.
Details on the Inn and its membership will be provided soon. We are hopeful that many members of the bankruptcy bar will consider joining.
362 Settlement Orders – Conduit
Effective today, at the request of the Chapter 13 Trustees, chambers will be eliminating the 362 settlement orders that result in the Debtor participating in the Conduit Procedure after previously making regular payments directly to the mortgage creditor. These settlement orders include Exhibit K, Exhibit L and Exhibit M. For cases pending that are assigned to Judge Waites, a 362 settlement order that provides for the maintenance of regular mortgage payments shall be by direct payments from the debtor to the mortgage creditor.
Use of New Certification of Facts Form
As part of the changes to the local rules in December of last year, the form Certification of Facts was modified to provide a more detailed breakdown of the liens on the property that is subject to a motion for relief. The new form is available in the Local Forms section on the Court’s website. Chambers has observed that many of the recently filed motions for relief are not utilizing the updated form certification of facts.
Please note that for purposes of motions filed under 11 U.S.C. § 362(d)(1) (for cause including lack of adequate protection), equity refers to the amount of equity above the movant’s lien, which is not always the net equity amount regarding all of the liens on the property.
Delegation of Service of LM/MM Orders
Starting today, the service of any Order Requiring Loss Mitigation/Mortgage Modification is delegated to Debtor’s counsel, and the Clerk of Court’s office will cease service of this order.
As a reminder, the service of the Order Appointing LM/MM Mediator and Order Regarding LM/MM Procedures (early case order) is also delegated to Debtor’s counsel by the terms of those orders.
LM/MM Reports, Emails and Correspondence
Chambers has recently received several emails and correspondence regarding LM/MM. Please note that any requests for a status hearing on a pending LM/MM review, including a hearing on the debtor’s timeliness to submit an application in the Portal, should be requested through a filed correspondence on CM/ECF. Chambers will not act upon email requests for a status hearing.
Also, any request for relief based on a party’s alleged wrongful conduct or lack of good faith in the LM/MM process should be sought through the filing of a Motion to Enforce LM/MM. Chambers will not act upon such requests for relief if included in a LM/MM Report, a filed correspondence or an email to chambers.
Remarks from Judge Waites:
I salute the Court’s recognition of the service of Judge Thurmond Bishop from 1987 to 2006. I was very fortunate to serve as his colleague for my first 12 years on the bench and learned a lot from him. I know the lawyers that appeared before him agree with me that his keen intelligence, dry wit and sense of humor, his focus on fundamental fairness and old fashioned common sense made him an outstanding judge. During his tenure, he handled some of the largest chapter 11 cases filed in this District, and was rated as one of the best bankruptcy judges in the country by one publication. At one point after the retirement of Judge Davis, Judge Bishop and I carried the largest caseload per judge in the country, but with frequent communication and the help from staff and the Clerk’s office, we never felt overwhelmed.
I benefited from and miss our frequent lunches where we reviewed everything from our cases, to politics, news, sports and the latest family news. I was truly blessed to have his support and friendship over the years, as well as the closeness of our families, who grew up and were often together during our years on the bench.
I know Judge Bishop always enjoys a call or visit if you are near Abbeville, so I encourage you to let him know he is missed.
| In Memoriam: | J. Bratton Davis | ||
| United States Bankruptcy Judge | |||
| 1917-2004 |
Remarks from Judge Waites:
In honor of what would be his 100th birthday, I wanted to follow the Court’s announcement and share a few personal remarks about my friend and colleague, J. Bratton Davis, this District’s first bankruptcy judge.
For those of us who worked with him or practiced before him or otherwise knew Judge Davis, we remember him as a great jurist but an even better person—always gracious, loyal, kind and caring. If you did not have a chance to meet him, know that he laid the foundation for all that is good about our Court and practice, including the highest standards for public service, fairness, collegiality and civility. I encourage you to ask almost any of the long-tenured practitioners, judges or trustees in this District to share their memories of him so you may learn what a lasting legacy he has left.
His tenure and accomplishments are inspiring and were celebrated on the occasion of his retirement in a special session of the Court honoring him, the minutes of which were published nationally in volume 284 of the Bankruptcy Reporter. I invite you to review a copy of the minutes of this special session, which are available here.
In February of this year, following the lead of other districts with a Loss Mitigation/Mortgage Modification (“LM/MM”) program, Judge Waites implemented a mediation requirement in all LM/MM cases that utilize the Portal.
A review of the reported Portal cases for the first six months of this new procedure indicates a 75% success rate, measured by the achievement of a trial payment plan, a permanent loan modification or another loss mitigation arrangement that is favorable to the debtor.
Judge Waites would like to thank the mediators who have served in these cases, Janet Haigler, Russ DeMott and John Butler, as well as commend the attorneys representing debtors and those representing consumer creditors for their utilization of the program.
As a matter of personal privilege…
This past weekend, our state hosted the ABI Southeastern Workshop in Hilton Head. The program at this regional seminar is always very good, covers cutting edge topics and attracts many of the Southeast’s best bankruptcy lawyers and reorganization professionals. I am privileged to have served as the Judicial Chair for the last couple of years as I will next year.
The seminar is usually held at the Ritz Carlton on Amelia’s Island, Florida, an outstanding venue. Whenever the seminar ventures elsewhere, the ABI expects a significant drop in attendance. So the SC members of the Advisory Board and I felt challenged. Our Board members, Christie Brimm, Jane Downey, Michael Weaver, Rory Whelehan, Dave Wheeler and Jody Bedenbaugh, did an amazing job of helping to plan the seminar and in reaching out to the SC Bar to participate. Add to that George Cauthen, who encouraged a record attendance by Nelson Mullins lawyers from across the country, and Bill McCarthy, who personally made calls to lawyers around the state to encourage attendance. I also understand that several firms joined in sponsoring the seminar (although I am shielded from that information).
While the numbers are not final, I think we had 60 SC attendees- well beyond the usual 10 or so attendees- and the total attendance exceeded expectations. What’s more, our Bar was well represented in the program with presentations by Johnny Butler, Christie Brimm, Cynthia Lowery and Michael Beal- all of whom did an outstanding job!
Thanks to all who attended, our state and Bar shined! I was very proud and appreciative. While the program was a great success, I was primarily reminded of the closeness and camaraderie of our Bar and how lucky I am to work with you each day.
My sincere thanks to all of you who attended or otherwise supported the hosting of this seminar.
