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Chambers' Bulletins

Judge Waites

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.


Mon, 1/30/2017 - 3:56 pm

1. Amended LM/MM Program  

The Loss Mitigation/Mortgage Modification Program was amended effective January 15, 2017 as provided in the December 19, 2016 News and Announcements posting, which is available here. 

I. Forms: Chambers has received requests for copies of the new forms in individual word documents. These documents are attached below: 

     Notice and Motion for Loss Mitigation/Mortgage Modification 

     Order Requiring Loss Mitigation/Mortgage Modification 

     Order Appointing LM/MM Mediator 

II. Exemption: The amended LM/MM procedures provide that a mediator will be appointed in every case in which the Portal is utilized unless otherwise exempted by the Court. Parties may request an exemption by filing a motion (using the Motion event in CM/ECF) or correspondence simultaneously with the filing of a Notice and Motion for Loss Mitigation/Mortgage Modification which demonstrates cause. Since the exemption may be granted without a hearing, the proposed Order Requiring LM/MM may be modified to remove references to the mediator. An example of a modified Order Requiring LM/MM (without reference to a mediator) is available here. The granting of such an exemption, however, may limit the debtor’s ability in the future to seek the appointment of a mediator or other enforcement of the LM/MM Order.  

2. Reporting Non-Portal LM/MM Efforts 

As stated in the Chambers Guidelines for Judge Waites and required by the Order Regarding Loss Mitigation/Mortgage Modification Procedures entered early in each chapter 13 case, parties shall report to the Court through correspondence any non-portal loss mitigation/mortgage modification efforts during the bankruptcy case. Failure to timely report these non-portal efforts may result in the Court requiring a hearing attended by all parties to consider any Consent Order Approving Loss Mitigation/Mortgage Modification (Non-Portal) or Consent Order Approving Trial Period Plan (Non-Portal) filed with the Court. 

3. Standard 362 Settlement Order for Lack of Insurance 

Judge Waites has developed a standard 362 settlement order for use in circumstances where lack of insurance or force placed insurance was the cause of the 362 motion. This standard 362 settlement order is available here.  

The judge invites comments or questions regarding these announcements to be sent to Andrew_Powell@scb.uscourts.gov no later than February 14, 2017.


Tue, 1/10/2017 - 10:10 am

The following are effective starting January 20, 2017, unless otherwise advised.

Comments may be provided by January 17, 2017 to Andrew_Powell@scb.uscourts.gov.

 

Standard 362 Settlement Orders for cases filed after October 1, 2016 (Conduit Eligible Cases):

Judge Waites has implemented standard 362 settlement orders for Chapter 13 cases filed after October 1, 2016 (Conduit Eligible Case) where the debtor(s) have failed to pay mortgage creditors directly as proposed in their Chapter 13 plan. These standard orders may also be voluntarily used in cases filed prior to October 1, 2016. The standard orders are as follows:

(1)    Conduit: Applicable in cases where the parties agree that payments to cure the post-petition arrearage and the future monthly mortgage payments will be paid to the Trustee through plan payments. This standard order contemplates the Trustee’s preference that the post-petition arrearage be cured over the remaining term of the Chapter 13 plan. This standard 362 settlement order is available here.

 

(2)    Conduit & Direct Pay: Applicable in cases where the parties agree that: (1) ongoing mortgage payments will be paid to the Trustee through plan payments and (2) monthly payments to cure the post-petition arrearage will be paid directly to the Movant by the Debtor. If the value/equity above the movant’s lien in the property exceeds $5,000.00, parties shall use this order. In cases where the value/equity above the movant’s lien is less than $5,000.00, the parties shall use this order. Parties should schedule the cure payments under the following uniform standards:

 

Number of Missed Post-Petition Payments  Length of Cure Period 
0 - 6 Months  12 month cure 
7 - 12 Months  24 month cure 
More than 12 Months  To be determined at a hearing before the Court 

 

Standard 362 Settlement Order for Loss Mitigation/Mortgage Modification:

In addition, Judge Waites has implemented a standard 362 settlement order for all Chapter 13 cases in which the parties resolve a 362 motion through loss mitigation/mortgage modification. This standard 362 settlement order is available here.

Mediation for Valuation Disputes:

A pilot program providing mediation in contested valuation proceedings involving real estate or large value personal property has been very successful in reducing the costs to the parties and the number of contested hearings before the Court. Therefore, Judge Waites is implementing this mediation in all of his Chapter 13 cases.  A copy of the Valuation Dispute Mediation Program guidelines and a copy of the standard mediation order are available here. Please note that counsel is required to immediately notify Chambers at judgewaites_porders@scb.uscourts.gov as well as the Chapter 13 Trustee upon the filing of an objection involving the valuation of a secured claim on real estate or large value personal property.

Reporting Disputes involving Domestic Support Obligations:

Upon the filing of an objection to confirmation or a response to an objection to a proof of claim demonstrating disputes related to domestic support obligations (“DSO”), the debtor’s and opposing counsel shall immediately notify Chambers of the DSO dispute by an email to judgewaites_porders@scb.uscourts.gov with a copy to the Chapter 13 Trustee for consideration of mediation or other case management processes.


Mon, 12/19/2016 - 4:23 pm

The Guidelines and Forms used for LM/MM in Judge Waites’ cases have been revised to be effective for all notices and motions for LM/MM and Consent Orders Requiring LM/MM filed on or after January 15, 2017. The Guidelines and Forms are attached for review and comment by the Bar. Please direct all comments to Andrew Powell by January 9, 2017 at Andrew_Powell@scb.uscourts.gov. 

The primary changes in procedure are the appointment of a mediator in each case and the adjustment of supplemental attorney’s fees. A low cost, efficient mediation procedure is being adopted for all cases for the following reasons: 

  1. Mediation has been very successful in past LM/MM cases; 
  2. Early case mediation will ensure more timely submission by debtors of the required financial information and similarly a more timely acknowledgement and response by the mortgage creditor; 
  3. Early case mediation will result in the designation of local counsel for the mortgage creditor earlier in the case, which has proven to expedite the LM/MM review. 

The supplemental debtor’s attorney’s fee has been increased to $1,700 plus $300 for participation in a second mediation session, if necessary. The guidelines also allow debtor and counsel to agree to a different fee amount if paid directly by debtors outside of the Chapter 13 Plan. 

To accommodate form changes, they are provided in Word format and may be automated in the future.  

Upon final enactment of the guidelines and forms, Judge Waites anticipates being available for bar meetings in the applicable divisions to review the procedures.


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