Federal Rules 3001 and 3002-1 Rev

8/3/2019 Federal Rules 3001 and 3002-1 Rev

http://slidepdf.com/reader/full/federal-rules-3001-and-3002-1-rev 1/28

NewNew Federal Rules 3001 andFederal Rules 3001 and 3002.13002.1



The U.S. Supreme CourtThe U.S. Supreme Court adoptedadopted the amendmentsthe amendments

toto the Federal Rules of Bankruptcy Procedure andthe Federal Rules of Bankruptcy Procedure and

submitted the rules to Congress for final reviewsubmitted the rules to Congress for final review

andand approval.approval.Th

eTh

e new rulesnew rules becamebecame effectiveeffectiveDecember 1, 2011, again changing procedure andDecember 1, 2011, again changing procedure and

policy for servicing loans in bankruptcy.policy for servicing loans in bankruptcy.

TheThe relevant changes are to Rule 3001 governingrelevant changes are to Rule 3001 governing

thethe filing of proofs of claim (POC), and new rulefiling of proofs of claim (POC), and new rule3002.1, which covers notice issues relating to3002.1, which covers notice issues relating to

payment changes, postpayment changes, post--petition fees, expensespetition fees, expenses

andand charges, and a new procedure implementedcharges, and a new procedure implemented

toto determine loan status at discharge.determine loan status at discharge.



Rule 3001Rule 3001 ± ± Proof of ClaimProof of Claim ((amendedamended))

Rule 3002.1Rule 3002.1 ± ± Notice Relating to Claims Secured byNotice Relating to Claims Secured by

Security Interest In Debtor¶s Principal ResidenceSecurity Interest In Debtor¶s Principal Residence

(new)(new)

Form B 10 (Attachment A)Form B 10 (Attachment A) ± ± Mortgage Proof of Mortgage Proof of

Claim AttachmentClaim Attachment (new)(new)

Form B 10 (Supplement 1)Form B 10 (Supplement 1) ± ± Notice of MortgageNotice of Mortgage

Payment ChangePayment Change (new)(new)

Form B 10 (Supplement 2)Form B 10 (Supplement 2) ± ± Notice of Post petitionNotice of Post petition

Mortgage Fees, Expenses, and ChargesMortgage Fees, Expenses, and Charges (new)(new)



Rule 3001 has been amended to addRule 3001 has been amended to add

additional requirements in an individual debtor additional requirements in an individual debtor

case and provides sanctions for failure to complycase and provides sanctions for failure to comply

with the new provisions.with the new provisions.

New requirements include:New requirements include:

If POC includes pre petition interest, fees or other If POC includes pre petition interest, fees or other charges, they have to be itemized.charges, they have to be itemized.

If a security interest is claimed, the amount to cure hasIf a security interest is claimed, the amount to cure has

to be listed in the POC.to be listed in the POC.

New Attachment B 10 has to be completed and filedNew Attachment B 10 has to be completed and filed

with the POC.with the POC.

If an escrowed loan, a RESPA analysis prepared as of If an escrowed loan, a RESPA analysis prepared as of

th

e date of filing must be submitted with

th

e POC.th

e date of filing must be submitted with

th

e POC.



If the creditor fails to provide the required formIf the creditor fails to provide the required form

and information, the Court after notice andand information, the Court after notice and

hearing can take either or both of the followinghearing can take either or both of the following

actions:actions:

Preclude the creditor from presenting the omittedPreclude the creditor from presenting the omitted

information, in any form, as evidence in anyinformation, in any form, as evidence in any

contested matter or adversary proceeding, unlesscontested matter or adversary proceeding, unless

the court determines that the failure wasthe court determines that the failure was

substantially justified or harmless.substantially justified or harmless.

Award other relief including reasonable expensesAward other relief including reasonable expenses

and attorneys fees caused by the failure.and attorneys fees caused by the failure.



Statement must include sufficient specificity toStatement must include sufficient specificity to

make clear the basis for the claimed amount.make clear the basis for the claimed amount.

RESPA form filed with Court can be in the sameRESPA form filed with Court can be in the same

form that is used outside of bankruptcy.form that is used outside of bankruptcy.

Failure to provide the information on the claim isFailure to provide the information on the claim is

not reason for disallowance of the claim but if annot reason for disallowance of the claim but if an

objection is filed or other litigation arisesobjection is filed or other litigation arises

concerning the status of treatment of the claim,concerning the status of treatment of the claim,

the court may preclude it from presenting thethe court may preclude it from presenting the

omitted information.omitted information.









SupplementsSupplements §§ 1322(b)(51322(b)(5).). In a Chapter 13, in a claimIn a Chapter 13, in a claimsecured by an interest in the debtor¶s principal residencesecured by an interest in the debtor¶s principal residenceand provided for by the debtor¶s plan, the holder of claim isand provided for by the debtor¶s plan, the holder of claim isrequired to:required to:

file with Court and serve on the trustee, debtor andfile with Court and serve on the trustee, debtor and

debtor¶s counsel, any payment change due to interestdebtor¶s counsel, any payment change due to interest

rate or escrow change 30 days before the effective daterate or escrow change 30 days before the effective date

of the change;of the change;

use Form B 10 (Supplement 1) with attachmentuse Form B 10 (Supplement 1) with attachmentthat is the form of notice required under applicablethat is the form of notice required under applicablenon bankruptcy law; andnon bankruptcy law; and

file with Court as a supplement to the POC.file with Court as a supplement to the POC.









In a Chapter 13, in a claim secured by an interest inIn a Chapter 13, in a claim secured by an interest in

the debtor¶s principal residence and provided for bythe debtor¶s principal residence and provided for by

the debtor¶s plan, the holder of claim is required to:the debtor¶s plan, the holder of claim is required to:

filefile with Court and serve on the trustee, debtor andwith Court and serve on the trustee, debtor anddebtor¶s counsel, a notice that itemizes all post petitiondebtor¶s counsel, a notice that itemizes all post petition

fees, expenses, or charges incurred in connection with fees, expenses, or charges incurred in connection with

the claim that the holder asserts are recoverablethe claim that the holder asserts are recoverable

against theagainst the debtor debtor or his principalor his principal residence;residence;

noticenotice is filed as a supplement to the POC and servedis filed as a supplement to the POC and served

no later than 180 days after the date when the fees,no later than 180 days after the date when the fees,

expenses or charges areexpenses or charges are incurred; andincurred; and

cancan be filed by creditor or creditor¶s agent (mustbe filed by creditor or creditor¶s agent (must

include POAinclude POA).).



Per the committee, this notice includesPer the committee, this notice includes

inspection fees, late fees, attorney¶s fees.inspection fees, late fees, attorney¶s fees.

It would also include property preservationIt would also include property preservationfees, non escrowed taxes paid and forcedfees, non escrowed taxes paid and forced

placed insurance.placed insurance.

Filing and service requirement for the noticeFiling and service requirement for the notice

are the same as for the notice required under are the same as for the notice required under subsection (a).subsection (a).









On motion by debtor or trustee,On motion by debtor or trustee,

filed no later than one year after filed no later than one year after

the service of the notice, the courtthe service of the notice, the courtshall hold a hearing to determineshall hold a hearing to determine

whether payment of the fee,whether payment of the fee,

expense or charge is required byexpense or charge is required by

the underlying agreement andthe underlying agreement andapplicable non bankruptcy law.applicable non bankruptcy law.



No later than 30 days after making finalNo later than 30 days after making final

payment of any cure amount on a claimpayment of any cure amount on a claim

secured by a security interest in the debtor¶ssecured by a security interest in the debtor¶s

principal residence, the Trustee shall file andprincipal residence, the Trustee shall file and

serve upon the holder of the claim, debtor andserve upon the holder of the claim, debtor and

debtor¶s counsel a notice stating that thedebtor¶s counsel a notice stating that the

amount to cure the default has been paid inamount to cure the default has been paid in

full.full.

Can also be filed by the debtor¶s attorney.Can also be filed by the debtor¶s attorney.



Notice of Final Cure Payment

Pursuant to Fed. Bankr. Rule 3002.1(d), the Trustee files Notice that the amount required to cure the defaultin the below claim has been paid in full.

Name of creditor: _______________________________ Court claim no. (if known): _____________

Last four digits of any number used to identify the debtor¶s account: ____ ____ ____ ____

Amount of Prepetition Arrears $________________

Amount Paid by Trustee $________________

Mortgage is paid: Thru the Chapter 13 conduit Direct by the Debtor(s)

Within 21 days of the service of this Notice, the creditor must file and serve same on the debtor, debtor¶scounsel and the trustee, pursuant to Fed. Bankr. Rule 3002.1(e), a statement indicating whether it agrees thatthe debtor has paid in full the amount required to cure the default and whether, consistent with §1322(b)(5),the debtor is otherwise current on all payments or be subject to further action of the court including possiblesanctions.



No later than 21 days after the service of theNo later than 21 days after the service of the

notice in 3002.1(d), the holder of the claim SHALLnotice in 3002.1(d), the holder of the claim SHALL

file and serve on the debtor, debtor¶s attorney andfile and serve on the debtor, debtor¶s attorney and

trustee indicating:trustee indicating:

wwhether it agrees the debtor has paid in full thehether it agrees the debtor has paid in full the

amount required to cure the default; andamount required to cure the default; and

whether the Debtor is otherwise current on allwhether the Debtor is otherwise current on all

payments.payments.



Statement shall itemize:Statement shall itemize:

Any required cure amount and/or Any required cure amount and/or

Post petition amounts that the holder contendsPost petition amounts that the holder contendsremain unpaid as of the date of the statement.remain unpaid as of the date of the statement.

Statement is filed as supplement to the holder¶sStatement is filed as supplement to the holder¶s

proof of claim.proof of claim.

Per commentary, the response must itemize allPer commentary, the response must itemize all

missed amounts that the holder contends are stillmissed amounts that the holder contends are still

due.due.



On motion of the debtor or trustee filedOn motion of the debtor or trustee filed

no later than 21 days after service of theno later than 21 days after service of the

statement under subdivision (e) of this rule,statement under subdivision (e) of this rule,the court shall, after notice and hearing,the court shall, after notice and hearing,

determine whether the debtor has cureddetermine whether the debtor has cured

the default and paid all requiredthe default and paid all required

postpost--petition amounts in full.petition amounts in full.



If the holder fails to provide any informationIf the holder fails to provide any information

required by subdivision (a), (c), or (e) of this rule,required by subdivision (a), (c), or (e) of this rule,

the holder shall be precluded from presenting thethe holder shall be precluded from presenting the

omitted information, in any form, as evidenceomitted information, in any form, as evidencein any hearing or submission in any contested matter in any hearing or submission in any contested matter

or adversary proceeding in the case, unlessor adversary proceeding in the case, unless

the court determines that the failure wasthe court determines that the failure was

substantially justified or is harmless.substantially justified or is harmless.

In addition to or in lieu of this sanction, the court may,In addition to or in lieu of this sanction, the court may,

after notice and hearing, award other appropriate relief,after notice and hearing, award other appropriate relief,

including reasonable expenses and attorney¶s feesincluding reasonable expenses and attorney¶s fees

caused by the failure.caused by the failure.



If, after the chapter 13 debtor If, after the chapter 13 debtor

has completed payments under the plan andhas completed payments under the plan and

the case has been closed, the holder of a claimthe case has been closed, the holder of a claim

secured by the debtor¶s principal residencesecured by the debtor¶s principal residence

seeks to recover amounts that should have beenseeks to recover amounts that should have been

but were not disclosed under this rule,but were not disclosed under this rule,

the debtor may move to have the case reopenedthe debtor may move to have the case reopened

in order to seek sanctions againstin order to seek sanctions againstthe holder of the claim under subdivision (g).the holder of the claim under subdivision (g).



In order to fulfill the obligations of 1322(b)(5),In order to fulfill the obligations of 1322(b)(5),

the debtor and trustee must be informed of the debtor and trustee must be informed of

the exact amount needed to cure anythe exact amount needed to cure any

pre petition arrearage and the amount of pre petition arrearage and the amount of the post petition payment obligations.the post petition payment obligations.

Timely notice of the changes will permit theTimely notice of the changes will permit the

debtor or trustee to ch

allenge th

e validity of debtor or trustee to ch

allenge th

e validity of the charges and adjust the payment for the charges and adjust the payment for

any properly claimed adjustment.any properly claimed adjustment.



Documents

Federal Rules 3001 and 3002-1 Rev