IN RE: LOS
GATOS LODGE, INC. (01/17/02 - No. 00-16916) (9th
Cir. Ct App) bankruptcy trustee may not surcharge
a creditor for expenses in preserving a property under 11 USC
506(c) after the secured creditor's claim has been disallowed,
even if the claim was deemed an "allowed secured claim"
afterwards.
http://caselaw.lp.findlaw.com/data2/circs/9th/0016916p.pdf
PROOF OF CLAIM:
In Re J.H. Investment
Services, Inc., (11/22/11 - Ct of
Appeals 11th Cir) held that the IRS had waived its right to
an unsecured deficiency by filing a proof of claim that
evidenced a secured claim but failed to note that a portion
of the claim may be unsecured. The court held that the
latter set of rights, plan voting and distribution towards
the unsecured portion of an otherwise secured claim, could
be waived if not pursued through express reference in a
proof of claim.
Can a debtor file a proof of claim for the creditors?
Yes, the debtor may file a claim for a creditor up to 30
days after the claims bar date. See BR 3004.
December 1, 2011: rule
changes related to proofs of claim:
Pursuant to Rule 3001(c), proofs of claim must be made in
writing. Official Form B-10 is the proof of claim form.
Official Form B-10 has changed and the instructions for
completing the proof of claim have changed. Creditors must
now include information about the interest rate, each
creditor must now sign off on a statement that it has
attached documentation that is evidence of the creditor's
perfected security interest, and the signature block of
Official Form B-10 has changed.
Rule 3001(c)(2) has been amended and is now entitled
"Additional Requirements in an Individual Debtor Case;
Sanctions for Failure to Comply". The changes require a
claimant to include an itemized statement of the prepetition
interest, fees, expenses or charges with a proof of claim,
as well as a statement of the amount necessary to cure a
default as of the petition date. If the mortgage payments
include an escrow payment, an escrow statement must also be
attached to the proof of claim. These requirements can be
partially fulfilled by the completion and filing of new
Official Form B10, Attachment A.
To complete Official Form B10, Attachment A, Part 1, the
mortgage creditor must itemize the amount of principal and
interest due as of the date of the filing of the bankruptcy
petition, and the total interest due as of the petition date
must be broken down by interest rate and the corresponding
time periods. Part 2 requires a description of the fees,
expenses and charges incurred in connection with the claim,
as of the petition date, the dates these charges were
incurred and the amounts of these charges.
Part 3 requires a statement of the amount necessary to cure
the default as of the petition date. It is in this section
that a mortgage creditor will check off the box indicating
whether or not the mortgage payments that are in arrears
include an escrow component. If so, the mortgage creditor
must include a copy of an escrow statement. Also required
in Part 3 is the date the last payment was received by the
creditor, the number of payments due, and the amount of the
payments due which the mortgage creditor must further
analyze by adding the total of prepetition fees and expenses
to the overdue payments and subtracting the total of any
unapplied funds, resulting in an amount which is the total
amount necessary to cure the default as of the petition
date.
The bankruptcy court can impose sanctions against a creditor
who files a proof of claim, but fails to provide the
documentation and information required by Rule 3001(c).
Those sanctions can be evidentiary, monetary or punitive.
Proofs of claim must be signed under penalty of perjury that
the statements in the claim are "true and correct and to the
best of my knowledge, information and reasonable belief."
The penalty for presenting a fraudulent claim is a fine of
up to $500,000 or imprisonment for up to five years, or
both. The changes to Rule 3001 and the addition of Rule
3002.1 are designed to respond to cases with facts and
circumstances that bankruptcy courts found to be
unacceptable. The liability for attorneys and proof of
claim preparers who sign inaccurate forms can be
substantial.
The changes also require an ongoing requirement for
claimants in Chapter 13 cases. Creditors in Chapter 13
cases whose claims are secured by a security interest in a
debtor's principal residence and whose claims are for
arrearages being cured through a Chapter 13 plan, are
required to file a Notice of Payment Change (Official Form
B10, Supplement 1) no later than 21 days before the new
amount is due. This consists of a change in the mortgage
payment amount, including those changes which arise from
escrow adjustments or from interest rate changes. The
Notice of Payment Change must be served upon the debtor, the
debtor's counsel and the Chapter 13 trustee. The Notice of
Payment Change must be filed as a proof of claim supplement
in the proof of claims registry.
The consequences for the mortgage creditor who fails to file
a timely Notice of Payment Change will render the payment
change ineffective. Mortgage creditors who fail to comply
can expect evidentiary sanctions, where the court can
prohibit a creditor from presenting evidence in a dispute
about the claim. The court also has discretion to "award
appropriate relief, including reasonable expenses and
attorneys' fees".
Mortgage creditors in Chapter 13 cases whose claims are
secured by a security interest in a debtor's principal
residence and whose claims are being paid through a Chapter
13 plan, are required to file a Notice of Fees, Expenses and
Charges (Official Form B10, Supplement 2) every 180 days
(the "Notice of Fees") while the Chapter 13 case is
ongoing. The Notice of Fees must be filed as a supplement
to the mortgage creditor's proof of claim in the bankruptcy
court's claims registry, and it must be served on the
debtor, the debtor's attorney and the Chapter 13 trustee
within 180 days of when the charges were incurred. Failure
to timely file the Notice of Fees will result in the
inability for the creditor to collect the fees and expenses
which should have been disclosed in the Notice of Fees.
Fees, expenses and charges include late fees, attorneys'
fees, inspection fees, taxes advanced, property preservation
fees and forced place insurance. The trustee and/or the
debtor have up to one year after the filing of the Notice of
Fees to file a motion requesting a hearing on whether or not
the payment of the fees and charges in the Notice of Fees
are lawful.
Pursuant to Rule 3002.1(f) – (h), within 30 days after a
debtor completes all Chapter 13 plan payments, the trustee
must file and serve a notice stating the debtor has paid in
full the amount required to cure the default on the
creditor's claim (the "Final Cure Notice"). The Final Cure
Notice must include a statement that advises mortgage
creditors of their obligation to file a response within 21
days after the Final Cure Notice. Failure to file the
written response within this time period may be fatal to the
creditor's position.
The mortgage creditor's response must state: (1) whether it
agrees with the assertion that the debtor has paid the
amount needed to cure the default on the creditor's claim;
(2) whether the debtor is otherwise current; or (3) if the
creditor asserts the debtor has not cured the default, the
creditor must provide an itemization of the cure amount.
The mortgage creditor's required response also must be filed
as a supplement to the mortgage creditor's proof of claim in
the claims registry, in addition to being served on the
debtor, debtor's attorney and the Chapter 13 trustee.
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