Since August 1, 2004, Judge Waites has appointed mediators in seven (7) adversary proceedings and two (2) complex contested matters which were ready for trial. While the mediation conferences in the most recent appointments have just been scheduled, previous appointments have lead to settlements in all of the cases to date. Interestingly, several matters have settled immediately prior to the mediation conferences.Judge Waites believes the program is successful so far, and appreciates the efforts of parties and those counsel serving as mediators in those matters.
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Judges' Corner Archive
Problems have arisen in several Chapter 13 cases in regards to Orders allowing the Substitution of Collateral (actually authorization to use insurance proceeds from a wrecked vehicle to purchase a different vehicle). In those cases neither the debtor, debtor’s attorney nor the seller of the new vehicle followed through with the notation of lien of previous lien holder on the new title or delivered the title to that creditor.
For that reason, Judge Waites requires use of a form order which more clearly requires the debtor’s attorney to ensure the proper notation of lien, delivery of title and transfer of insurance proceeds.
Judge Waites does not require the form be used when counsel for both the debtor and prior lien holder settle an objection to substitution of collateral, however, he recommends it.The form is attached hereto.
The new Chapter 13 hearing procedures have been in effect for a few months and appear successful in giving the Trustees more time for discussions and flexibility, eliminating the wait for lawyers and unnecessary attendance by debtors and preparing the Court for substantive arguments in contested matters.
We have been asked to set the Chapter 13 calendar dates for January – March 2005 and request any further comments on this procedure on or before September 21, 2004. Send comments by telefax to 803-253-3464.
The President of Bankla, John Lester, and I recently met to discuss our common desire to improve the quality of bankruptcy practice in this District. To that end we will be working together to sponsor the second annual paralegal training seminar to be held at the Court on a date in October or early November. The seminar will focus on “how-to” instructions regarding issues in a consumer bankruptcy practice, from both a debtor and creditor perspective. If you would like to work on this seminar or suggest topics, please contact John or Gretchen Holland.
Judge Waites is seeking experienced bankruptcy counsel to serve as mediators in several adversary proceedings pending before the Court. These proceedings are primarily in the nature of dischargeability or preference actions. Attorneys that are certified mediators in state or federal court, or those with specialized experience in the specified area, are requested. Please indicate your interest via letter setting forth your qualifications and the hourly rate for which you would be willing to serve (and any other relevant information you wish to provide) by facsimile to Judge Waites at 803-253-3464 on or before Friday, August 27, 2004.
In order to reconcile the § 362 continuance and settlement procedures required by Judge Waites and stated herein on July 31, 2003 with the new Chapter 13 hearing procedures, effective July 1, 2004 the time for requesting continuances and submitting settlement orders or withdrawals for purposes of removal from the calendar has been changed to 12:00 p.m. on the day prior to the hearing.
In light of the United States Supreme Court’s recent decision in Till v. SCS Credit Corp., 124 S. Ct. 1951, the committee appointed by this Court to review interest rates to be applied to secured claims in Chapter 13 cases has recommended that the interest rate currently set forth in Amended Operating Order - Interest Rate in Chapter 13 Cases (8%) remains in effect until further review and a formal meeting of such committee can be held to coincide with the South Carolina Bankruptcy Law Association meeting in September 2004. The purpose of the further review and meeting will be to make recommendations for future interest rate application based upon the holding by the Supreme Court. The Court encourages the bar to be mindful of the upcoming review of this matter and notes that the Court may defer matters directly addressing the Supreme Court’s decision pending recommendations by the committee.
I enjoyed meeting with several consumer creditor attorneys over lunch on May 18, 2004 to discuss court procedures and other matters of interest. This was a follow-up to a similar meeting held with several consumer debtor attorneys in September of 2003.
Such efforts to visit "outside of the courthouse" and share ideas and concerns is always enjoyable and I believe beneficial. Thanks to all who attended.
An Operating Order which sets deadlines for parties to respond to a demand for jury trial in a bankruptcy proceeding and to indicate if each party does or does not consent for the jury trial to be conducted in the bankruptcy court has recently been signed and will soon be posted on the Web page.
Counsel in adversary proceedings should also observe Bankruptcy Rule 7008 which requires a statement in a pleading if the proceeding is core or non-core and if the pleader does or does not consent to entry of a final order and judgment by the bankruptcy judge.
Also, an Operating Order providing for dismissal of a Chapter 13 case upon failure to provide to the Chapter 13 Trustee information or documents necessary for case administration has recently been signed and will soon be posted on the Web page.
If you have any problems or concerns in this area, please contact me or a member of the User’s Committee.
Due to the large volume of motions to reconsider dismissal of Chapter 13 cases (sometimes referred to as motions to reopen or motions to vacate dismissal) filed in recent years, Judge Waites, several months ago in association with the Chapter 13 Trustees who appear before him, implemented certain guidelines which are applicable to such motions.
Generally, on motions to reconsider dismissal due to failure to timely pay the Chapter 13 Trustee, the Court will allow reinstatement of the case under the following conditions:
- Neither the Trustee nor affected party objects;
- The motion was timely made (within 10-15 days of the dismissal) and set for hearing within 30 days of the dismissal (or the next available docket if Spartanburg );
- Debtor is present at the hearing on the motion unless previously excused by the Trustee;
- Debtor presents full catch-up payment in certified (or otherwise acceptable) funds to Trustee at the hearing; and
- Debtor and counsel consent that any future dismissal of case is with prejudice.
However, the Court will not reconsider prior dismissals with prejudice absent extraordinary circumstances.
Situations of neglect or dismissal due to fault of counsel may require fee disgorgement/sanction before dismissal will be reconsidered.
In addition, this Court has previously determined that vacating the dismissal of a Chapter 13 case does not retroactively reinstate the automatic stay during the period when the case was dismissed. Jennings v. R&R Cars & Trucks (In re Jennings), C/A No. 01-02330, Adv. Pro. No. 01-80044, 2001 WL 1806980, at *3 (Bankr. D.S.C. Sept. 17, 2001).