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Chambers' Bulletins

Judge Waites

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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