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Chambers' Bulletins

Judge Waites

Mon, 5/14/2018 - 1:27 pm

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.


Mon, 3/05/2018 - 2:42 pm

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.

 


Mon, 10/30/2017 - 3:06 pm

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.


Fri, 10/27/2017 - 10:53 am
  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.


Fri, 9/22/2017 - 2:10 pm

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.


Mon, 7/31/2017 - 3:11 pm

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.


Mon, 4/17/2017 - 2:09 pm

The Court has made two new CM/ECF events available for use in cases assigned to Judge Waites as well as updated one event currently in effect, which are available starting today, Monday April 17, 2017. These events eliminate the need for counsel to file a proposed orders in these matters.
 

  • “Request for Settlement Order on Motion for Relief from Stay (Judge Waites)” – This CM/ECF event replaces the “Request for Settlement Order on Motion for Relief from Stay” for Judge Waites cases and incorporates most of the standard § 362 settlement orders included in the Chamber Guidelines. This event is a text event, similar to the “Certification of No Response and Request for 362 Default Order” in that it is only necessary for counsel to complete the inputs in CM/ECF, and a proposed order will be created based on that information. This event is not available for the 362 settlement order that resolves a motion through LM/MM (Exhibit N in Chamber Guidelines).
  • “Affidavit of Default on 362 Settlement Order and Request for Order Granting Relief” – This CM/ECF event may be used in lieu of filing an affidavit of default and proposed order based on an ex parte relief provision of a § 362 settlement order. Upon the completion of this event and the uploading of affidavit of default on a § 362 settlement order and corresponding payment history (as limited under the recent changes to Chamber Guidelines), a proposed order granting relief will be created for the Judge’s consideration.
  • “Loss Mitigation/Mediation” event under the “Motions/Applications” category in CM/ECF – Parties are no longer required to file a proposed order requiring LM/MM and a proposed order appointing LM/MM mediator when filing under this event. Upon the completion of the event and the uploading of a notice and motion for LM/MM, the proposed orders will be drafted based on the information entered by counsel.

The proposed orders generated by these events are in conformance with the standard orders listed in the “Judge Waites Local Forms” section of the Court’s webpage, which is available here.


Fri, 4/07/2017 - 11:20 am

Judge Waites has amended his Chambers Guidelines effective April 10, 2017. Click here for a copy of the amended Chamber Guidelines. The primary changes are to incorporate several of the recent procedure changes announced by Judge Waites on the News and Announcement section of the Court’s website, including updated Chapter 13 attorney’s fees guidelines, revised LM/MM guidelines, additional standard § 362 Settlement Orders, and procedures for valuation mediations. In addition, the amended guidelines change certain procedures for matters assigned to Judge Waites, including revising the deadline for filing joint statements of dispute in chapter 13 cases to two business days prior to the hearing.

A bar meeting in the Columbia and Charleston divisions will be held within the next several weeks to review and highlight the most important changes.

Judge Waites invites comments or suggestions to be directed to Andrew Powell by email to Andrew_Powell@scb.uscourts.gov on or before April 17, 2017.


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.


Thu, 3/09/2017 - 2:49 pm

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

Wage Orders

Wage orders have been shown to be beneficial for debtors and have contributed to successful chapter 13 reorganizations. Therefore, pursuant to 11 U.S.C. § 1325(c), unless otherwise exempted, debtors shall submit to a wage order in all new chapter 13 cases that are assigned to Judge Waites. For cases assigned to Trustee Wyman, debtors may alternatively use a Trustee-approved electronic account deduction program in lieu of submitting to a wage order. 

The complete guidelines requiring the payment of plan payments and wage orders are available here, which include a list of the available exemptions and a copy of the standard consent form indicating the payment method for post-confirmation trustee payments.

Ex parte Relief Due to Default on Settlement Order

The guidelines for submitting affidavits of default pursuant to a § 362 settlement order have been changed. Future affidavits shall include an attachment which demonstrates the direct payments made after the entry of the settlement order and their application, rather than the previous requirement, which required that the attachment demonstrate “all direct post petition payments and their application.” The revised version of the guideline is available here.

Consent Allowing Payment of Funds to Creditor/Debtor Attorney

Non-Conduit Cases

In connection with conversion or dismissal of a non-conduit chapter 13 case, a debtor may consent to the payment of outstanding attorney’s fees and costs that are owed to debtor’s counsel as part of the Chapter 13 Trustee’s final distribution. The following forms may be used to request such payment: Consent Form and Proposed Order.

To file these consents on the docket, a new CM/ECF event has been created entitled “Consent Allowing Payment of Funds to Creditor/Debtor Attorney- Non Conduit.” When using this event, a proposed Order should not be filed until such time as there is a pending motion for dismissal/conversion.

Conduit Cases

Judge Waites has revised the forms for consenting to the payment to the Mortgage Creditor or Debtor’s Counsel upon the conversion or dismissal of a conduit chapter 13 case. These updated forms are attached here: Consent Form and Proposed Order. Counsel should continue to utilize the CM/ECF entitled “Consent Allowing Payment of Funds to Creditor/Debtor Attorney- Conduit.” When using this event, a proposed order should not be filed until such time as there is a pending motion for dismissal/conversion.


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