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Consumer Practice Initiatives

Wed, 11/07/2007 - 4:00am

Consumer Practice Initiatives: The following information may be of interest to the bar.

A. Chapter 13 Attorneys Fees: An operating order that establishes an expedited procedure for approval of attorneys' fees in chapter 13 cases is in its final stages and has been forwarded to the Court's Advisory Committee for consideration. In association therewith, the court is also considering certain minor changes to the language of the form plan required by the new procedure. Upon finalization, the new procedures would be published with an effective date of January 1, 2008.

B. Working Group on Mortgage Related Issues: A Working Group of lawyers representing all practice specialties and geographic areas was appointed on September 30, 2007 to discuss various issues arising in 362 practice and related mortgage issues. The Group made its report on November 1 with the following among its several recommendations:

1. The court should enforce the requirement in the 362 Certification of Facts form for a complete post petition payment history in order to improve the resolution of payment disputes.

2. The court should consider a 24 month sunset provision for the ex parte relief provisions of a consent 362 order. In the event of a default after 24 months, the debtor would be afforded an opportunity to respond to the assertion of default either in a pleading or at a hearing.

3. The court should provide guidance on allowable post petition charges or fees for mortgage creditors.

4. The present reinstatement of stay and resumption of payment procedures appear effective for addressing those situations. The adoption of a form for a reinstatement of stay order may be helpful.

5. The present methods of asserting disputes between a debtor and a mortgage creditor regarding incorrect charges or fees appear effective in providing a resolution.

The Working Group discussed but could not agree to recommend the proposal for inclusion of additional language in the form plan that references 524(i) and specifically the language referenced in the Ballard decision which is used by a district in North Carolina. After consideration by the judges, the Working Group recommended further discussion of this issue. Until that time, these matters would be addressed by the court on a case by case basis.

The judges appreciate the contribution of the members of the Working Group: Cynthia Lowery, Dana Wilkinson, Eddye Lane, Jennifer Rubin, John Kay, and Michael Drose.