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Changes to 362 Procedure

Fri, 02/08/2008 - 4:00am

By Judges Corner announcement on November 7, 2007, the Court reported that the Mortgage Issue Working Group recommended a 24-month sunset provision for ex parte relief under a 362 settlement order in a consumer case. A similar recommendation was also discussed with the Court's Advisory Committee in June of 2007. As a result, the judges of the Bankruptcy Court have agreed to adopt this recommendation in the following manner:

1) In the event of the filing of an affidavit of default under a previously entered 362 settlement order, if more than 24 months have elapsed since the entry of the settlement order, the Court will hold the ex parte order for a period of ten (10) days. In such situations, it is suggested that the party asserting default present a payment history which is sufficient to demonstrate the default.
Upon the expiration of ten (10) days without the filing of a counteraffidavit by the debtor disputing the fact of default and specifying the payments made, an order may be entered lifting the automatic stay.

2) For 362 settlement orders in consumer cases submitted on or after March 7, 2008, if the settlement order provides for ex parte relief upon subsequent default beyond a period of 24 months from the entry of the order, the Court will require the matter to remain on the calendar and will require the parties to appear to explain the need for inclusion of such a provision.