Cite as: Keith M. Lundin, Lundin On Chapter 13, § 131.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
This section of Lundin on Chapter 13 is currently under revision.
Alvarez v. Bayview Loan Servicing, LLC (In re Alvarez), No. NC-18-1104-BKuF, 2018 WL 6715728 (B.A.P. 9th Cir. Dec. 21, 2018) (Brand, Kurtz, Faris) (Bankruptcy court did not abuse discretion by refusing to award attorney fees under 3002.1(i) when Bayview Loan Servicing filed confusing accounting in response to notice of final cure under Rule 3002.1(h) but debtors eventually agreed that the arrearage amount calculated by Bayview was correct. Although not awarded in this case, fees are recoverable under Bankruptcy Rule 3002.1(i) by reference to (g) in (h) and (i) references (g).).
Howard v. Derham-Burke (In re Howard), No. 17-1064-STaB, 2018 WL 2107787, at *1–*5 (B.A.P. 9th Cir. May 7, 2018) (Spraker, Taylor, Brand) (Fees incurred after completion of payments for successfully defending Bankruptcy Rule 3002.1 Notice of Final Cure are administrative expenses that are dischargeable without regard to payment and cannot be collected from the debtor personally. Counsel could have but didn’t get agreement for direct payment of remaining fees, together with a waiver or exception to discharge. Debtor could have, but didn’t, make additional payments to cover the unpaid attorney fees. Debtor can still voluntarily pay attorney under § 524(f). “The fees fall within the statutory definition of administrative expense claims. They were awarded under § 330(a)(4)(B), and such fees are specifically covered by the administrative expense statute, § 503(b)(2). . . . Moran successfully precluded PNC Bank from introducing evidence of alleged outstanding escrow advances under Rule 3002.1(i)(1) and was awarded fees and costs incurred in this matter under Rule 3002.1(i)(2). . . . Moran separately obtained a determination that Howard was current on her PNC Bank mortgage obligations under Rule 3002.1(h). However, the bankruptcy court denied Howard’s request that PNC Bank pay the balance of Moran’s fees and costs arising from the motion under Rule 3002.1(h) because that subdivision does not provide for the recovery of attorneys’ fees. . . . Because most chapter 13 plans provide for payment of all administrative expenses through the plan, such fees can be discharged upon completion of the plan even if such fees were not actually paid. . . . The postconfirmation fees Howard incurred at the end of her chapter 13 case were administrative expenses that were discharged pursuant to Howard’s chapter 13 plan. . . . We are not unsympathetic to Moran’s situation. . . . Although the completion of the plan payments and term precluded modification of the plan, it did not necessarily foreclose the debtor from making additional payments on outstanding plan obligations if required. . . . Courts may allow debtors to make payments directly to counsel on fees excepted from the discharge. . . . Even after entry of discharge, nothing prevents Howard from voluntarily repaying Moran’s approved fees.”).
CIT Bank, N.A. v. Griswold-Stanton (In re Griswold-Stanton), No. 2:16-CV-2722 JCM, 2018 WL 3489238, at *5–*6 (D. Nev. July 19, 2018) (Mahan) (Sanctions under Bankruptcy Rule 9011 were not appropriate with respect to 3002.1 notices filed by CIT; Rule 3002.1 does not require CIT to attach evidentiary support and bankruptcy court did not consider whether CIT made a reasonable or competent inquiry before filing its notice. CIT filed a 3002.1 notice of mortgage fees, expenses and charges that totaled $1,406 for postpetition fees and expenses including attorney fees, proof of claim charges, broker’s opinion fees and property inspection fees. The debtor mailed a 9011 demand that CIT withdraw the notice. CIT refused and the bankruptcy court imposed sanctions of $9,603 against CIT for violation of Bankruptcy Rule 9011. “The official form referenced in Bankruptcy Rule 3002.1(d) required CIT to provide the category of the expense, the amount, a description, and the date incurred. . . . CIT was not required to provide evidentiary support for the post-petition expenses. . . . [T]he bankruptcy court treated CIT’s failure to provide evidentiary support for the second notice as establishing that the filing was baseless. . . . This holding was clear error, and cannot support a ruling that CIT violated Bankruptcy Rule 9011(b). . . . [T]he bankruptcy court held that ‘it was impossible for the creditor, CIT, to properly explain or support the amounts that were set forth in that particular notice of post-petition mortgage fees, expenses, and charges.’ . . . Yet, Bankruptcy Rule 3002.1(d) does not require a notice to contain supporting documentation. . . . CIT did not violate Bankruptcy Rule 9011(b)(3) by failing to provide evidentiary support for the proof of claim expense. . . . [T]he bankruptcy court did not consider whether CIT failed to make a reasonable and competent inquiry before filing the second notice.”).
Ocwen Loan Servicing, LLC for Deutsche Bank Nat’l Tr. Co. v. Randolph, No. 18-21, 2018 WL 2220843 (W.D. Pa. May 15, 2018) (Conti) (District court denies untimely motion to extend time to move for rehearing of appeal of show-cause order requiring Ocwen to explain why it failed to comply with court orders to provide loan histories to Chapter 13 trustee after Ocwen confessed that it had wrongfully charged attorney fees for reviews of Chapter 13 plans.), denying reconsideration of Nos. 18-21, 18-22, 2018 WL 1141737, at *1 (W.D. Pa. Mar. 2, 2018) (Conti) (District court easily rejects Ocwen’s request for immediate appeal of bankruptcy court orders to show cause with respect to noncompliance with prior orders requiring complete loan histories in cases in which Ocwen admits it inappropriately charged $400 legal fees for “plan review.” “[T]he bankruptcy court observed that Ocwen Loan Servicing, LLC . . . , a mortgage servicing company, had improperly charged a $400 legal fee for ‘plan review’ in both cases. Further inquiry revealed that Ocwen may have charged this improper fee in at least 30 other bankruptcy cases. Ocwen conceded that the fees should not have been charged and agreed to remove them from the loans. In order to verify that this had been done, the bankruptcy court issued an order directing Ocwen to produce the complete loan histories for all those cases to the Chapter 13 Trustee for review. . . . [T]he trustee . . . reported to the bankruptcy court that Ocwen had only provided partial loan histories . . . . The bankruptcy court issued a second order on each docket . . . directing Ocwen to respond . . . . At the hearing, the bankruptcy court confirmed that Ocwen had provided only partial loan histories to the Trustee. The bankruptcy court issued another order on each docket directing Ocwen to supply complete loan histories and raising the possibility of sanctions for non-compliance. . . . [T]he Trustee reported that Ocwen had still not complied. The bankruptcy court issued an order in each case . . . directing Ocwen and its counsel to appear at a hearing to ‘show cause for and justify their failure to comply’ with the three previous orders.”).
PHH Mortg. Corp. v. Sensenich, No. 5:16-cv-00256-gwc, 2017 WL 6999820, at *5–*9 (D. Vt. Dec. 18, 2017) (Crawford) (Bankruptcy court lacked authority to impose $375,000 sanction on PHH Mortgage for violations of Bankruptcy Rule 3002.1 and violations of orders with respect to faulty servicing. “[T]he Bankruptcy Court’s order imposing sanctions pursuant to Rule 3002.1(i) exceeded the scope of the Bankruptcy Court’s powers as delineated by statute and precedent and therefore exceeded the scope of Rule 3002.1(i). . . . [O]n balance, the better-reasoned authorities favor the narrower construction of the Bankruptcy Court’s statutory and inherent punitive sanctions power. . . . [T]he statutory and inherent powers of the Bankruptcy Court are not sufficient to support the Bankruptcy Court’s imposition upon PHH of $300,000 in punitive sanctions.”).
Saccameno v. Ocwen Loan Servicing, LLC, No. 15 C 1164, 2017 WL 5171199, at *1
Taylor v. Ocwen Loan Servicing, LLC, No. 4:16-cv-04167-SLD-JEH, 2017 WL 3443209, at *3
Sokoloski v. PNC Mortg., No. 2:14-1374 WBS CKD, 2014 WL 6473810, at *6 (E.D. Cal. Nov. 18, 2014) (Shubb) (Mortgagee's failure to respond to trustee's Notice of Final Cure Payment under Bankruptcy Rule 3002.1(g)—coupled with ambiguous communications regarding loan modification and declaration of default three months after completion of plan—gave rise to causes of action for breach of implied covenant of good faith and fair dealing, negligence and violation of California's Unfair Competition Law. Mortgagee's conduct deprived debtors of "a fair accounting of their debt under the loan contract." Debtors also stated cause of action under California's Rosenthal Fair Debt Collection Practices Act when claim arose out of improper conduct in loan servicing.).
In re Rivera, 599 B.R. 335, 339–47 (Bankr. D. Ariz. Mar. 29, 2019) (Wanslee) (Because direct payment of mortgage installments was not payment “under the plan” for purposes of § 1328(a), plan is complete and debtors are entitled to discharge notwithstanding default in direct payments to mortgagee; trustee’s motion to dismiss under § 1307(c)(6) is denied. Confirmed plan paid $15,571.89 of mortgage arrearages through the trustee and provided that debtor would pay postpetition installments directly to mortgage holder. Trustee filed notice of final cure payment to which the mortgage creditor responded that the prepetition default was cured but postpetition payments were delinquent. “The majority position is that ‘payments under the plan’ refers to any payment made pursuant to a Chapter 13 plan, regardless of whether a debtor makes such payment directly to the creditor or through the trustee. . . . The minority position is found in In re Gibson, 582 B.R. 15 [(Bankr. C.D. Ill. Mar. 5, 2018) (Perkins)] . . . this Court agrees with Gibson. . . ’provided for by the plan’ and ‘payments under the plan’ should mean two different things. . . . ’The most logical line of demarcation is between payments made by the trustee from funds received from the debtor versus payments made by the debtor direct to a creditor.’ . . . [T]he payments ‘under such plan’ are the debtor’s payments to the trustee. . . . The Court finds that that part of the creditor response concerning ‘cur[ing] the default’ refers to payments made ‘under the plan’ and the second part concerning being ‘otherwise current’ applies to payments made outside the plan and direct by the debtors. . . . There is no Bankruptcy Code provision or Rule that requires a debtor to report a default on direct payments. . . . It would be incongruous to dismiss a case without discharge after the Plan’s otherwise successful completion when Rule 3002.1 was designed to be a rule of creditor disclosure, not a procedure for denial of discharge. . . . If Congress believed it important for a debtor to certify that all post-petition mortgage payments be current, it would have so stated. Nothing in the Code or Rules, however, suggests that Section 1328(a) should be construed in a way that would automatically transform an outside-the-plan payment default into grounds for dismissal under Section 1307(c)(6) without discharge, especially when all payments to the trustee have been completed. . . . A secured creditor, once the plan has been confirmed, can still file a motion for relief from the automatic stay . . . . denying Debtors’ discharge would be non-sensical here given that Arizona is an anti-deficiency state, meaning that the creditor of Debtors’ primary residence only ever had in rem, not in personam, rights and remedies. . . . Trustee Brown is authorized to file Notices of Completed Plan allowing Chapter 13 discharges to be entered when all payments to his office have been paid even though post-petition mortgage payments may be delinquent.”).
In re Ransom, 599 B.R. 791, 796–821 (Bankr. W.D. Pa. Mar. 28, 2019) (Agresti) (After nearly two years of litigation with trustee, Ocwen is found in contempt of court orders requiring complete loan histories in Chapter 13 cases in which Ocwen improperly filed 3002.1 notices of postpetition fees that were not recoverable. Trustee’s attorney’s fees up to $70,000 were payable by Ocwen and Ocwen’s outside counsel was reprimanded for misconduct before the bankruptcy court. “[T]he Court was operating from the premise that, unless otherwise qualified by an additional limiting term such as ‘partial’ or ‘post-petition,’ a loan history meant a record of the loan from the date of its inception up to the present. That was consistent with the language in the various default orders directed against Ocwen . . . . Those default orders provided that Ocwen was to provide ‘full and comprehensible loan histories from the inception of the loan.’ . . . Ocwen filed Affidavits . . . . According to the body of the Affidavit, allegedly attached to each of the Affidavits was a ‘complete and accurate post-petition loan payment history.’ . . . Ocwen had failed to provide a ‘complete loan history’ . . . . Ocwen acknowledged that it had not provided complete loan histories . . . but then went on to argue that the Trustee’s definition was over broad and unnecessary. . . . Ocwen had actual knowledge . . . and an obligation arose in it to provide proof of removal of the charges and a complete loan history from the inception of the loan . . . . Ocwen did absolutely nothing to even attempt to comply with those orders. . . . [T]he testimony provided by the ‘Ocwen people’ as to why it responded . . . in the manner it did . . . is tortuous and contradictory to the point that the Court has no confidence in exactly what happened. . . . By ‘looking the other way’ and going along with Ocwen’s strained interpretation that he himself in all likelihood knew was incorrect, . . . Eisenberg put his own professional conduct and reputation at risk. If Ocwen insisted on acting under an interpretation . . . that he knew was wrong, Eisenberg could have chosen to withdraw from representation at that point. . . . Eisenberg was in essence not being candid with the Court, and acting contrary to the basic principle that court orders must be obeyed. . . . Ocwen should be found in civil contempt and sanctioned for its disobedience of and failure to comply with the respective Orders.”).
In re Borre, No. 17-24543-E-13, 2019 WL 1012788, at *7–*13 (Bankr. E.D. Cal. Mar. 1, 2019) (Sargis) (Prevailing party attorney’s fees are awarded to debtor’s attorney for successfully objecting to $1,440.33 arrearage included in mortgage proof of claim when no arrearage existed at the petition. $900 is not unreasonable postpetition fees for filing mortgage proof of claim and review of plan in Chapter 13 case
Stout v. Ocwen Loan Servicing, LLC (In re Stout), No. 17-1048-JDL, 2019 WL 922593, at *2 (Bankr. W.D. Okla. Feb. 25, 2019) (Loyd) (Ocwen denied summary judgment because of disputed facts with respect to whether Ocwen complied with order to correct its records to reflect that Chapter 13 debtors were current and all arrears cured at discharge. Ocwen granted summary judgment with respect to absence of damages for slander, defamation and the like when Ocwen may have failed to comply with order that mortgage was current. Damages for attorney’s fees remained for trial together with whether Ocwen failed to comply with order that mortgage was current. “Plaintiff’s Amended Complaint . . . asserts that Ocwen failed to correct its records to show that the account was current . . . as ordered by the court in the . . . Order Adjudging Ocwen To Be In Contempt[.]”).
In re Melendez Vega, No. 16-08722 (ESL), 2019 WL 927006, at *2–*3 (Bankr. D.P.R. Feb. 22, 2019) (Lamoutte) (Absent proof of specific facts requiring otherwise, mortgagee cannot charge a $50 fee for filing a notice of postpetition mortgage payment change consistent with Bankruptcy Rule 3002.1. Notice of payment change is a normal business function required by RESPA which is not compensable and does not normally require the services of an attorney. “Fed. R. Bankr. P. 3002.1 . . . became effective on December 1, 2011, and amended on December 1, 2016 . . . . [T]he filing of a Rule 3002.1 Notice of Postpetition Mortgage Fees, Expenses, and Charges as a supplement to a proof of claim is a business function that does not require the assistance of counsel. Should there be specific reasons why the assistance of counsel is needed, the need must be included in the notice for there to be entitlement to a fee.”).
In re Pantoja Marzan, No. 17-06250 (ESL), 2019 WL 856170, at *3 (Bankr. D.P.R. Feb. 20, 2019) (Lamoutte) (Filing notice of payment change under Bankruptcy Rule 3002.1 is a business function that ordinarily does not require the services of an attorney. $150 notice of postpetition fees is denied when $50 fee was charged for filing a notice of payment change and $100 fee was charged for filing a notice of postpetition fees seeking the $50 charged for filing the payment change notice. “[T]he filing of a Rule 3002.1 Notice of Postpetition Mortgage Fees, Expenses, and Charges, as a supplement to a proof of claim, is a business function that does not require the assistance of counsel. Should there be specific reasons why the assistance of counsel is needed, the need must be included in the notice for there to be entitlement to a fee.”).
In re Couvertier Lopez, No. 17-03902 (ESL), 2019 WL 856302, at *3–*4 (Bankr. D.P.R. Feb. 20, 2019) (Lamoutte) (Mortgage creditor is not entitled to $50 charge for filing postpetition notice of mortgage payment change and is not allowed $100 attorney’s fee for filing notice of postpetition mortgage fees, expenses and charges seeking that $50 charge. Debtor is awarded attorney’s fees under Bankruptcy Rule 3002.1(i) when creditor’s payment change notice was filed late
Meyer v. Wilmington Sav. Fund Soc’y, FSB (In re Meyer), 596 B.R. 172, 178–86 (Bankr. M.D. Pa. Feb. 5, 2019) (Opel) (Bankruptcy Rule 3002.1 applies to mortgage paid directly by debtor. Notice requirements of Bankruptcy Rule 3002.1 cease to apply when stay relief is granted to mortgage holder. Prepetition late fees included in proof of claim and postpetition late fees incurred after stay relief can be assessed without transgressing Rule 3002.1(c) and without separate notice under Rule 3002.1; however, postpetition late fees assessed while stay was in effect for which no notices under 3002.1 were filed may violate Rule 3002.1(c) if those late charges were included in a subsequent payoff amount from lender. Summary judgment with respect to “corporate advances” is not appropriate because court can’t tell what the term “corporate advances” means. It seems to include fees and expenses that require notice under 3002.1(c) and there are other fees, costs and charges labeled corporate advances which can’t be compared for lack of information. Escrow advances and disbursements if allowed by the mortgage are not reported on notices under Rule 3002.1(c); escrow advance assessments that are not escrow items under the mortgage would be fees, expenses or charges that would have to be noticed under Rule 3002.1(c). If payoff statement after discharge included fees, expenses or charges with respect to which required 3002.1 notices were not filed, lender violated discharge injunction because lender cannot collect fees, charges or expenses from the debtor or the property if required 3002.1 notices were not given during the Chapter 13 case. “[T]he Plaintiff’s confirmed plan provided for direct monthly mortgage payments to Wells Fargo . . . therefore, FRBP 3002.1 applies in this case. . . . [T]he notice requirements of this rule cease to apply when the automatic stay is terminated or annulled with respect to the residence that secures the claim. Fed. R. Bankr. P. 3002.1(a). . . . [T]en additional late fees . . . were assessed to Plaintiff’s mortgage account during the operative time frame in which FRBP 3002.1 would apply. Whether these additional late fees are included on the Payoff Statement as corporate advances or escrow advances remains unknown and is clearly an outstanding issue of material fact. . . . I cannot hold that Defendants have a valid claim for corporate advances . . . at this stage of the proceedings because neither the Plaintiff nor the Defendants have defined what is encompassed by the term ‘corporate advances.’ . . . [T]he official form specifically instructs claimants to ‘not include any escrow account disbursements’ in their notices under FRBP 3002.1(c). . . . [U]nder the Mortgage, Defendants had the right to pay the Residence’s real estate taxes and insurance payments, that Plaintiff himself was not making . . . . These real estate tax payments and insurance payments were then allocable to Plaintiff’s monthly escrow payments, to which Wells Fargo filed the appropriate notices. . . . [I]f all the escrow advances complained of were suitable escrow advances as defined in the Mortgage, Defendants could not have violated FRBP 3002.1(c). However, this is unclear at this point in the proceedings. . . . If escrow advance assessments were made . . . that were not escrow items covered under the Mortgage, then those assessments would be subject to FRBP 3002.1(c) as they would not be considered escrow account disbursements but would be considered fees, expenses, or charges. . . . Plaintiff alleges that Defendants willfully violated the discharge injunction when Defendants sought, post-discharge through the Payoff Statement, to collect fees, expenses, and charges for which Defendants and their predecessor-in-interest, Wells Fargo, neglected to file the required notices pursuant to FRBP 3002.1(c). . . . It is undisputed that neither Defendants nor their predecessor-in-interest, Wells Fargo, filed any notices under FRBP 3002.1(c). If required notices were not filed pursuant to FRBP 3002.1(c), then Defendants could no longer collect those fees, expenses, or charges against Plaintiff or his Residence. . . . Because Defendants did collect the entire Payoff Statement amount, including the disputed fees, expenses, and charges, it is possible that Defendants violated the discharge injunction. . . . [T]here are outstanding issues of material fact which shall be determined at trial.”).
In re Mandeville, 596 B.R. 750, 754-66 (Bankr. N.D. Ala. Jan. 28, 2019) (Robinson) (Postpetition fees under Bankruptcy Rule 3002.1 for plan review and filing proof of claim are disallowed to extent related to prior Chapter 13 case and allowed with respect to current case. Fees for prior case should have been included in prepetition proof of claim in current case, not added to Rule 3002.1 notice in second case. Attorney fees for review of plan, participation in current case and filing proof of claim are necessary and reasonable, are allowed by deed of trust and by reference to HUD regs and flat fee amount of $300 was reasonable. “‘The “reasonableness standard” applied under § 506(b) challenges does not apply to postpetition fees, expenses, and charges necessary to cure a default as § 1322(e) explicitly excepts § 506(b) from consideration. Instead, the underlying agreement and applicable nonbankruptcy law are determinative. . . . ’ . . . [P]aragraph 8 of the Mortgage provides that ‘Lender may collect fees and charges authorized by [HUD].’ . . . The latest HUD authorization regarding the collection of fees and charges for FHA-insured mortgages is found in HUD’s Mortgagee Letter 2016-03 dated February 5, 2016 . . . . Alabama law recognizes the enforceability of provisions in mortgages that obligate a mortgagor to pay for the attorney’s fees incurred by her mortgagee in connection with, inter alia, collecting the mortgage debt . . . . A chapter 13 bankruptcy case is a ‘legal proceeding’ and as discussed below, has the potential to significantly and adversely affect a mortgagee’s interest in mortgaged property. . . . The risks and penalties associated with a flawed proof of claim are not insignificant . . . . A residential mortgagee’s claim must comply with the mandates of the Code and Rules to avoid significant consequences and may have repercussions not readily apparent to a layman. Accordingly, employing an experienced bankruptcy lawyer for that purpose is not only reasonable but is prudent. . . . In addition, the court is not willing to say that HUD’s requirements that its insured lenders not only utilize counsel when faced with a bankruptcy filing, but do so on an expedited basis, are per se unreasonable . . . . Code § 1327 and binding Eleventh Circuit authority highlight the danger of a naïve reliance on § 1322(b)(2) or any other Code provision that purports to protect a creditor’s rights. . . . [I]t was reasonable and necessary for Carrington to employ an attorney to review the Debtor’s plan and other bankruptcy related documents and to consider their proposed treatment of Carrington’s interest in the Mortgaged Property. . . . [T]he time expended and legal expertise required to perform the tasks described by Carrington’s attorneys justified the $300 . . . the fee is reasonable under Alabama law, and notably was less than half the maximum fee authorized by HUD for preparing a proof of claim and plan review. . . . Fees charged in the First Case were necessarily incurred before the instant case was filed and should not have been included in the Postpetition Fee Notice.”).
In re McKillop, No. 14-75418-ast, 2019 WL 354702 (Bankr. E.D.N.Y. Jan. 25, 2019) (Trust) (After failing to appear at hearing on its objection to trustee’s notice of final cure payment under Bankruptcy Rule 3002.1, Apple Bank’s motion for reconsideration under Rules 59 and 60 of the Federal Rules of Civil Procedure is denied for lack of any ground under either rule.).
In re Okafor, 595 B.R. 903, 907–10 (Bankr. W.D. Mo. Dec. 17, 2018) (Dow) (California attorney allowed reduced fee of $600 for review of plan and filing proof of claim in Chapter 13 case in Missouri. California attorney did not practice law unlawfully in Missouri because work was done in California and attorney did not make appearance in Missouri bankruptcy court. Requested fee of $900 was unreasonable. Bank instead allowed two hours at $300 per hour. Debtor objected to notice of postpetition mortgage fees, expenses and charges by Bank of New York Mellon. Bank retained a national law firm in California to review the debtor’s plan and prepare the proof of claim. The attorneys were not licensed in Missouri. Attorneys filed notice of postpetition mortgage fees, expenses and charges requesting $550 for preparing the proof of claim and $350 for reviewing the plan. “The plain language of the Deed of Trust authorizes the allowance of attorneys’ fees in the case of the Debtors’ bankruptcy filing. . . . Reviewing the plan and filing a proof of claim are unquestionably appropriate actions to protect a lender’s interest in estate property. . . . Rule 9010 governs the authority of persons or entities to act in bankruptcy proceedings . . . . This Rule is not applicable here because the Attorneys did not appear before the Court. . . . If the preparation and filing of the proof of claim and review of the plan was [sic] all done outside of Missouri then it was not the unauthorized practice of law in Missouri by the out of state Attorneys. . . . [T]he review of a plan and filing of a proof of claim is [sic] not an appearance or practice before this Court. . . . Something more that [sic] an out-of-state attorney’s review of a Chapter 13 plan and preparing and filing a proof of claim (and the Notice of Fees that supplements such proof of claim) while in that other state is required to meet the threshold of unauthorized practice of law in Missouri. . . . Secured creditors are not entitled to be reimbursed for fees incurred in every action taken by their counsel. . . . Lender’s Attorneys have requested $900.00 . . . . These fees were likely flat fee amounts but the Court is not bound by an attorney’s flat fees. . . . While the Court believes that it was reasonable for the Attorneys to prepare and file a proof of claim and review the plan, it does not believe that $900.00 is a reasonable fee for a large law firm that regularly performs such tasks for lenders. The time and labor involved for these tasks should have been minimal for attorneys specializing in this area and familiar with the procedure. . . . [I]t would not be unreasonable for the legal tasks required to file a proof of claim and review the plan to take one (1) hour each. Thus, the Court finds that fees in the amount of $600.00 ($300.00/hour x 2 hours) is reasonable[.]”).
Clark v. Select Portfolio Servicing, Inc. (In re Clark), No. 17-01031-R, 2018 WL 6266179, at *6–*11 (Bankr. N.D. Okla. Nov. 26, 2018) (Rasure) (Mortgagee’s failure to respond to notice of final cure from trustee precludes mortgagee under Rule 3002(i) from presenting evidence that there is an arrearage based on a preconfirmation notice of payment change five years earlier. Mortgagee was bound by amount of payment in confirmed plan and cannot claim after discharge that its preconfirmation notice of payment change allows foreclosure after completion of payments and discharge. Combined with plan provision that mortgage would be current at discharge, all arrears cured and all postpetition amounts paid if debtor completed payments, effect of Rule 3002.1(i) ruling is that mortgage was current at discharge and mortgagee cannot collect any amount other than the contractual, amortized amount going forward. Mortgagee’s withdrawal of notice of payment change years earlier when it could not explain large escrow default defeated purpose of Rule 3002.1 because it precluded debtors from adjusting payments in the middle of the case. Consistent with proof of claim filed before confirmation, plan proposed to pay a prepetition arrearage of $32,000 and to maintain payments. Servicer claimed that four months before confirmation mortgagee filed a notice of payment change that was approximately $350 per month higher than the amount stated in the proposed plan. Mortgagee did not object to plan and confirmed plan provided for ongoing payments at the lesser amount. Two years after confirmation, mortgagee filed a notice of payment change based on an escrow shortage in excess of $12,000. The debtors objected and the mortgagee withdrew the notice without presenting any evidence of how or when the large escrow balance accrued. Three years later the trustee filed a notice of final cure payment indicating that the mortgage was current and the debtors were eligible for discharge. “The Mortgagee did not file a statement indicating whether, consistent with § 1322(b)(5), the Clarks were current on their postpetition mortgage payments. . . . [T]he Court entered an Order of Discharge . . . . Fifteen months after the Clarks’ bankruptcy case was closed, the Mortgagee filed . . . yet another Notice of Mortgage Payment Change . . . to which it attached another escrow analysis that reflected an escrow surplus of $4,568.43. . . . The Final Cure Notice advised the Mortgagee of its obligation to file and serve a response under Rule 3002.1(g) . . . . The Mortgagee failed to file the mandatory response . . . . Accordingly, the Clarks are entitled to an order under Rule 3002.1(i) barring SPS from presenting any evidence that the mortgage was not current as of the date of the Final Cure Notice. . . . The purpose of Rule 3002.1(g) is to let debtors know what the mortgagee contends is the status of the mortgage at the conclusion of the plan. SPS’s failure to give the Clarks information to which they were entitled deprived them of their right to seek a judicial determination of the alleged underpayments under Rule 3002.1(h). . . . SPS’s admitted failure to comply with Rule 3002.1(g) was not substantially justified nor was it harmless. . . . The Mortgagee, having due notice . . . , slept on its rights. It remained silent in the face of a proposed plan that failed to provide for adequate maintenance payments in addition to cure payments, which violated the Mortgagee’s rights under § 1322(b)(2) and (5). . . . Because the Mortgagee did not object to its treatment, the Court assumed that the Second Amended Plan fully complied with § 1322(b), and confirmed the Plan under § 1329(a), binding all parties to its terms under § 1327(a). . . . To the extent that SPS now contends that the Plan did not comply with § 1322(b)(5) . . . its position is barred by the binding effects of the unopposed and unappealed orders of confirmation and discharge. . . . The Mortgagee did not object to the discharge . . . . [P]ursuant to paragraph 10 of the Plan, the Order of Discharge . . . constituted ‘a determination that all prepetition and postpetition defaults with respect to the debtors’ mortgage account [were] deemed current and reinstated on the original payment schedule under the note and mortgage as if no default had ever occurred.’ . . . The Clarks are therefore entitled to judgment as a matter of law declaring that . . . the mortgage was current and reinstated on the original payment schedule.”).
In re Wyatt, No. 13-06272-JW, 2018 WL 6984448, at *2–*4 (Bankr. D.S.C. Nov. 6, 2018) (Waites) (After notice of final cure, response from mortgagee under Rule 3002.1 and motion for discharge filed by debtor, further hearing is necessary to determine whether note and deed of trust required debtor to pay force-placed insurance or delinquent taxes. Plan that required debtor to pay ongoing mortgage payments directly to the creditor “provided for” mortgage for purposes of discharge and debtor’s entitlement to discharge will turn on whether failure to pay force-placed insurance or taxes is default. “Debtor does not dispute that he has not paid the post-petition fees and expenses to U.S. Bank. Debtor’s counsel argues that the payments of post-petition fees and expenses on a mortgage claim treated under 11 U.S.C. § 1322(b)(5) are not ‘payments under the plan’ as defined in 11 U.S.C. § 1328(a), and therefore, Debtor should be entitled to a discharge regardless of whether he has paid those post-petition fees and expenses. . . . In In re Dowey, 580 B.R. 168 (Bankr. D.S.C. [Feb. 9, 2017) (Waites)], this Court . . . held that a debtor’s ongoing maintenance payments provided for under § 1322(b)(5) that are paid directly by the debtor to the creditor are ‘payments under the plan’ for purposes of a discharge under § 1328(a). . . . Debtor intended, through the Chapter 13 Plan, to maintain all post-petition payments under the Note and Mortgage, including both monthly ongoing payments and fees and expenses that become due post-petition. . . . [I]t does not appear that either the Note or Mortgage provides that Debtor must maintain insurance on the Principal Residence or that U.S. Bank has the authority to recover the fees for force placed insurance from Debtor.”).
In re Garcia Rivera, No. 15-07601 (ESL), 2018 WL 5281625, at *1–*4 (Bankr. D.P.R. Oct. 22, 2018) (Lamoutte) (Mortgage lender is not allowed $150 fee for filing a postpetition notice of payment change under Bankruptcy Rule 3002.1. “In July 2017 BPPR filed the first notice under Rule 3002.1 requesting fees in the amount of $150.00. Upon debtor’s request, which was uncontested, the request for fees was denied by the court. On August 30, 2017 BPPR filed the second notice of payment change informing a change in the monthly mortgage payment. On the same date BPPR filed a notice of post-petition fees in the amount of $150.00. . . . The second notice was also objected by the debtor . . . . Debtor alleges that charging any fee for preparing the Rule 3002.1 notice is prohibited by 12 U.S.C. § 2610 . . . . The mortgage deed . . . provides . . . that ‘[l]ender may collect fees and charges authorized by the [HUD] Secretary.’ . . . [T]he mortgage deed executed by the parties allows for the charging of a fee in the amount of $150 for the purposes authorized by HUD. However, there is no specific reference as to whether HUD regulations include authorization to charge a fee for a Rule 3002.1 notice. . . . [N]either the RESPA nor the TILA expressly or impliedly prohibit charging for Rule 3002.1 notices. . . . Generally, the filing of a Rule 3002.1 notice as a supplement to a proof of claim is business function that does not require the assistance of counsel. . . . [A] creditor may claim attorney’s fees for compliance with Rule 3002.1 if the notice turns into a contested matter.”).
Beiter v. Chase Home Fin., LLC (In re Beiter), 590 B.R. 446 (Bankr. S.D. Ohio Sept. 14, 2018) (Preston) (In adversary proceeding after discharge alleging Chase misapplied payments, failed to treat mortgage as current and violated Bankruptcy Rule 3002.1, most of complaint survives motion to dismiss. Chase admitted it failed to correctly apply at least one payment and failed to give at least one notice of mortgage payment change required by Rule 3002.1. “Deemed current” order at end of case required Chase to fix amount of mortgage based on amortization schedule with any unclaimed arrearage or fees discharged. Complaint stated a claim that Chase violated that order by seeking to collect amounts that were discharged.).
In re Dworek, 589 B.R. 267, 270–76 (Bankr. W.D. Pa. Aug. 22, 2018) (Agresti) (Quicken Loans is allowed to withdraw 3002.1 notices with respect to postpetition attorney fees that are not allowable under Pennsylvania law with conditions: withdrawal is with prejudice to any collection of postpetition attorney fees; mortgagee must certify that the fees have been removed from the debtors’ loans and will not be assessed again in the future; fees for litigating the withdrawal of these notices may not be added to the loans; mortgagee must supply a complete loan history to prove compliance with all conditions; and court reserves right to seek sanctions under Bankruptcy Rule 9011 given that mortgagee had no good-faith claim to fees under Pennsylvania law but litigated at great length before moving to withdraw its notices. Pennsylvania law contains limitation that attorney fees are recoverable only if a foreclosure or other legal action had been commenced. Quicken filed 3002.1 notice seeking attorney fees of $550 and a second notice seeking attorney fees of $150 for filing an amended proof of claim. The trustee objected. After months of back-and-forth with the trustee, Quicken moved to withdraw its notices. “Counsel for Quicken stated that the Notice in this and the other cases were being withdrawn because Quicken had concluded that under [Pennsylvania law] attorney fees were not recoverable in the current matter. . . . [T]he dispute between Quicken and the Trustee as to whether Quicken should be permitted to add attorney fees on to its claims against the various debtors in these matters is a contested matter, and dismissal of that matter is therefore governed by Fed.R.Civ.P. 41. . . . [T]he only way that the Notices may be voluntarily withdrawn is by court order, on such terms as the Court considers proper, pursuant to Rule 41(a)(2). . . . It is troubling to the Court that Quicken commenced this litigation in the first place by filing the Notices, and then vigorously pursued it for so long after the Objections were filed, before coming to the realization that [Pennsylvania law] posed a statutory roadblock to the requested fees . . . . [M]any such Notices were being filed with little or no supporting documentation, yet were passing through the system without objection, apparently because the amounts being sought in the Notices (typically less than $1000) meant that the legal expense the debtor would incur in challenging them could not be financially justified. . . . [W]hat happened in the three cases addressed in the present Order is not merely an isolated problem. . . . Quicken’s filing of the Notices and its continued litigation of the Objection in the face of the [Pennsylvania law] prohibition seems a clear violation of Fed.R.Bankr.P. 9011(b)(1) . . . . Should not an attorney conducting a reasonable inquiry in advance of filing the Notices have realized that existing law did not support the claim for attorney fees? . . . Quicken shall file a certification in each of these three cases stating that it has provided an Affidavit to the Trustee and the respective debtors to the effect that the loan history in each case has been corrected to eliminate any reference to the attorney fees that are the subject of the particular Notice, that it will not seek to impose any of its expenses related to this litigation on the debtors, and that it has provided the Trustee with a complete loan history from the inception of the loan to the date of this Order.”).
In re Clark, 593 B.R. 661, 663 (Bankr. S.D. Ala. Aug. 6, 2018) (Oldshue) (On debtor’s Motion to Determine Mortgage Fees and Expenses Pursuant to Rule 3002.1(e) filed in response to mortgagee’s Rule 3002.1(c) Notice of Postpetition Fees and Expenses, attorney fees are not allowable because mortgage does not unambiguously describe a right to attorney fees. “[T]he alleged postpetition ‘filing fees and costs’ and fees for ‘plan review’ are not for the payment of taxes, hazard insurance or any other items referenced in paragraph 2 of the mortgage. Even if the language in the mortgage was intended to create an obligation by the debtor to repay attorney fees incurred after a default, the language is unclear and ambiguous to that effect. . . . [W]ithin the four corners of the loan document, there exists no unambiguous language establishing a mortgagor obligation for mortgagee attorney fees incurred after an event of default.”).
In re Garcia, No. 17-60124-RLJ-13, 2018 WL 3203385, at *1–*2 (Bankr. N.D. Tex. June 28, 2018) (Jones) (Two 3002.1 notices for postpetition fees filed by Nationstar Mortgage
In re Minor, No. 17-33644(1)(13), 2018 WL 3078177, at *1, *1 (Bankr. W.D. Ky. June 20, 2018) (Lloyd) (On debtor’s objection to Bankruptcy Rule 3002.1 notice of postpetition fees for mortgagee’s attorney fees, lodestar analysis reduces request from $3,001.20 to $1,760 because “[m]any of the time entries were for routine matters that should have taken less time than were shown on the time records.” “Creditor contends the fees are reasonable and include pre-petition foreclosure fees and extensive work performed by counsel in the case. This work included reviewing the Petition, Schedules and Plan, attending the 341 Meeting, filing a Motion to Terminate the Stay and a Notice of Non–Compliance, as well as Objecting to Confirmation of the Plan and negotiations with the Debtor’s attorney. . . . [U]sing the lodestar analysis . . . , the Court must determine whether the services rendered were reasonable, actual and necessary. . . . The Court determines that a reasonable amount of time spent on the tasks set forth in the Creditor’s Notice would be approximately 8 hours in a similar case. The Court will therefore allow attorney’s fees of $1,760.”).
Stanley v. Guaranteed Rate, Inc. (In re Stanley), No. 5-17-bk-00884-JJT, 2018 WL 2979852, at *1 (Bankr. M.D. Pa. June 12, 2018) (Thomas) (Chapter 13 debtor’s motion to determine postpetition fees under Bankruptcy Rule 3002.1(c) is resolved against mortgage lender based on Pennsylvania law that prohibits mortgagee from collecting attorney fees prior to or during the 30-day notice period required by § 403 of the Pennsylvania Loan Interest and Protection Law. Guaranteed Rate, Inc., filed a notice of postpetition mortgage fees and expenses seeking $1,550 in postpetition attorney fees. Debtors responded with a motion under Bankruptcy Rule 3002.1(e) asking the bankruptcy court to make a determination of the appropriateness of the charges. “A number of cases have applied Act 6 limitations to mortgagee’s attorney fees generated by proceedings in bankruptcy. . . . I am satisfied that Act 6 is applicable to the facts in this case and the mortgagee can charge no legal fees prior to the notice period in Act 6.”).
In re Hadfeg, 585 B.R. 208, 210–14 (Bankr. S.D. Fla. May 1, 2018) (Mark) (Citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (Mar. 23, 2010), and § 1327(a), confirmed plan that stated condo association’s prepetition arrearage was $5,000 to be paid in full precluded association from collecting additional $33,480 prepetition arrearage it claimed four years later. Association did not object to confirmation and did not file proof of claim. Association first questioned amount of prepetition arrears when order was entered at end of case declaring association payments current. Association cannot collect the prepetition arrearage it claims from the debtor, from the property or from a subsequent purchaser of the property because the debt has been preclusively paid in full pursuant to the confirmed plan. In contrast, confirmed plan did not address payment of postpetition special assessments and notice of final cure under Bankruptcy Rule 3002.1 was ambiguous with respect to postpetition assessments. Association granted relief from order declaring payments current to extent order purported to eliminate unpaid postpetition special assessments. Special assessments by condo association are not subject to payment change notice requirements of Bankruptcy Rule 3002.1. Association’s failure to file 3002.1 notices did not waive its right to seek collection of unpaid postpetition special assessments not provided for by plan and not paid by debtor. “The Association did not lose its lien rights by failing to file a claim, but the order confirming the Plan is res judicata on the amount of debt secured by the lien. . . . The Debtor in this case has satisfied her prepetition debt in full. Entry of the Confirmation Order bound the Association to the prepetition arrearage provisions of the Plan, including the amount of the arrearage and the payment terms. 11 U.S.C. § 1327(a). Upon completion of the Plan, there is no prepetition debt, 11 U.S.C. § 1328(a), and neither the in rem rights of the Association nor its rights under Florida’s Condominium laws to enforce debts against subsequent purchasers revive[ ] a fully-paid and extinguished prepetition debt. . . . While a bankruptcy court cannot eliminate a condominium association’s statutory enforcement rights, it can determine with finality the amounts that are owed and enforceable. . . . [T]he Association’s in rem claim against the condominium units for the alleged balance due on account of prepetition arrearages ($33,480), and in personam claim against potential future owners of the condominiums for the same balance ($33,480), are no longer enforceable. . . . The Court rejects the Debtor’s argument that the Association’s failure to file a Notice of Payment Change is tantamount to a representation that out–of–Plan payments are current. . . . Other Charges are not the type of ‘contractual installment payments’ subject of Fed. R. Bankr. P. 3002.1 . . . . [T]he Other Charges assessed postpetition remain outstanding claims enforceable against the Debtor and, under Florida law, enforceable against subsequent purchasers if the condominium units are sold.”).
In re Hockenberger, No. 12-32367, 2018 WL 1770172, at *2–*6 (Bankr. N.D. Ohio Apr. 11, 2018) (Whipple) (Postpetition default in direct payment of $61,445.21 claimed by mortgage servicer in response to trustee’s Bankruptcy Rule 3002.1 notice of final cure is reduced to $38,658.85 after hearing. Servicer had burden of proof with respect to actual amount of postpetition arrearage. Records supplied by servicer were incomplete with respect to prior servicing of loan. Debtor’s claim of an oral loan modification agreement with prior servicer was unenforceable under statute of frauds notwithstanding acceptance of monthly payments consistent with that oral agreement for several years. Debtor was in default for difference between contract amount at the petition and oral agreement amount actually paid by the debtor. Escrow shortage was added to that amount. “SN Servicing’s actual first-hand knowledge regarding Debtor’s mortgage payments only relates to payments received between May 2017 and December 2017 . . . . Nevertheless, she testified regarding what she described as a summary of Debtor’s mortgage payment history since May 21, 2012, through May 31, 2017[,] . . . based on records obtained by SN Servicing from a prior servicing agent ‘when U.S. Bank got the loan.’ The court, however, places little weight on this exhibit and finds it less than helpful in determining an amount owed due to postpetition arrearages. . . . [T]he mortgage holder has the burden to establish outstanding postpetition obligations on the mortgage. . . . While Debtor was clearly required to make monthly escrow payments . . . U.S. Bank has not met its burden of proving what escrow payment amount it required of Debtor . . . and the court will not speculate as to such amount.”).
Meyer v. Wells Fargo Bank, N.A. (In re Meyer), No. 1-17-ap-00138-RNO, 2018 WL 1663292 (Bankr. M.D. Pa. Apr. 4, 2018) (Opel) (Complaint alleging that Wells Fargo, Wilmington Savings Fund Society and Selene Finance should be sanctioned under Bankruptcy Rule 3002.1(i) for failing to file notices of postpetition fees and expenses and for violating discharge injunction by including fees and expenses that were not noticed as part of payoff demand at postdischarge sale of underlying property is dismissed as to Wells Fargo because the debt was transferred to Wilmington and is not dismissed as to Wilmington and Selene. Chapter 13 case lasted from July of 2012 to April of 2017. Wells Fargo filed a proof of claim with respect to mortgage but transferred the debt in 2015 to Wilmington. In 2017 debtor reopened completed case and filed a complaint alleging that the defendants failed to file notices of fees, expenses and charges in violation of Bankruptcy Rule 3002.1(c) and violated the discharge injunction in § 524(a) by seeking to collect fees, expenses and charges in a payoff statement after discharge in the Chapter 13 case. “Wilmington was granted relief from the automatic stay on June 16, 2016 with respect to the real property. . . . Debtor states that the Defendants seek to recover fees, expenses, or charges that were not timely disclosed to the Debtor, and therefore the Defendants should be sanctioned pursuant to Rule 3002.1(i). . . . Debtor asserts that he requested and received a Payoff Statement from Selene on June 12, 2017, in which ‘Selene . . . includes and seeks to recover . . . Escrow/Impound Draft . . . Corporate Advance(s) Balance . . . Unpaid Late Charges.’ . . . Under Rule 3002.1(c), a notice is required to be filed for . . . all fees or expenses that were incurred post-petition in connection with a mortgage holder’s claim that are asserted to be recoverable against the debtor or his principal residence. . . . I cannot find that the Debtor’s claim is precluded by waiver. The Response to the Notice of Final Cure by Wilmington was filed on May 16, 2017. Seven days later on May 23, 2017, prior to the expiration of the 21–day period for the Debtor to file a motion, the trustee filed a withdrawal of the Notice of Final Cure. This alone nullified the Response, and therefore any requirement of the Debtor to file a motion under Rule 3002.1(h) within 21 days would no longer apply. I also find there is an absence of case law finding that a failure to file a motion under Rule 3002.1(h) constitutes waiver of a claim under Rule 3002.1(c) or 3002.1(i). . . . Upon examination of Rule 3002.1, I cannot find that the Debtor is required to establish harm or a lack of substantial justification in order to state a claim for relief. . . . [U]nder 3002.1(i)(2), the court may still award reasonable expenses and attorney’s fees regardless of whether there was harm. . . . [T]he Debtor has sufficiently pled facts establishing harm . . . . The Complaint alleges that Wilmington and Selene seek to now recover fees, expenses or charges that were not disclosed under Rule 3002.1(c) . . . . The Debtor was allegedly ‘forced to pay’ fees and costs at the settlement of the real property in order to pass along good title to the buyer, which is money that ‘he should have otherwise had in his pocket.’ . . . [T]he Debtor has pled a plausible claim for sanctions under Rule 3002.1(i) against Wilmington and Selene.”).
In re Ochab, 586 B.R. 803, 807–10 (Bankr. M.D. Ala. Mar. 30, 2018) (Sawyer) (Mortgage servicers failed to prove entitlement to or reasonableness of $300 or $500 postpetition charges for filing proofs of claim and of $350 or $400 fees for review of Chapter 13 plans when mortgages were protected from modification by § 1322(b)(2). Applying § 1322(e), state law and contract control allowance of postpetition fees and expenses when debtor moves for determination after 3002.1 notice. No presumptions apply. Contract in one case only allowed attorney fees in foreclosure, precluding fees for participation in the Chapter 13 case. State law imposed reasonableness requirement. Filing proof of claim does not justify $300 or $500 fees. Plan that is protected from modification by § 1322(b)(2) does not require $400 review by an attorney. Once debtor moves for determination under Bankruptcy Rule 3002.1(e) creditor must put on proof of reasonableness and of a contract or state law right to fees. “Upon a debtor filing a motion to determine mortgage fees, expenses, and charges pursuant to § 1322(e), the Court must look to the underlying agreement and applicable nonbankruptcy law to determine if the amounts are permissible. . . . It is well-established law in Alabama that the parties to a mortgage may agree to the payment of reasonable fees if certain circumstances arise or actions are taken. . . . [T]he mortgage pertaining to the Englands’ personal residence only permits the recovery of fees incurred during a foreclosure proceeding initiated pursuant to a power of sale clause; however, the fees listed in the Notice of Postpetition Mortgage Fees, Expenses, and Charges were incurred in connection with a bankruptcy, not a foreclosure, proceeding. . . . [C]harging $400 for an attorney to review the Debtor’s Chapter 13 plan is unreasonable considering the protections provided to lenders by the antimodification rule . . . . Some courts even go as far as to say that reviewing a debtor’s plan is purely ministerial and not necessary to file a proof of claim; thus, an attorney fee for plan review should not be permitted. . . . Likewise, the act of filing of proof of claim is a relatively simple matter. . . . A $500 fee for filing a proof of claim on a debtor’s personal residence is excessive and unreasonable, whether or not an attorney prepares the proof of claim. Loan documents and payment history are regularly kept in the ordinary course of business. Filing a proof of claim should merely require transcribing information, which is already available to the lender, to a proof of claim form. . . . [O]nce a debtor files a Motion to Determine Fees pursuant to Rule 3002.1(e), the burden shifts to the creditor to substantiate the fees, expenses, and charges stated in the Rule 3002.1 Notice. . . . Failure to provide an adequate description of the charges in response to a motion [to] determine fees will not suffice.”).
In re England, 586 B.R. 795 (Bankr. M.D. Ala. Mar. 30, 2018) (Sawyer) (See In re Ochab, No. 16-12205-WRS, 2018 WL 1614164, at *3
Forson v. Nationstar Mortg., LLC (In re Forson), 583 B.R. 704, 707–16 (Bankr. S.D. Ohio Mar. 21, 2018) (Preston) (On summary judgment before class certification, letters and phone calls from Nationstar Mortgage violated discharge injunction by demanding amounts discharged during Chapter 13 case. Order entered after notice of final cure under Bankruptcy Rule 3002.1 declared mortgage current, declared all arrears paid, required reamortization based on loan being current at discharge and discharged all fees, costs and expenses not otherwise sought and allowed during the Chapter 13 case. Without explanation, Nationstar demanded payments after discharge that included arrears and other charges that were discharged. “Plaintiff’s confirmed Chapter 13 Plan provided for regular monthly payments on the Mortgage Loan to be made by ‘conduit’ through the Chapter 13 Trustee. Plaintiff successfully completed the Plan, and . . . upon motion by the Chapter 13 Trustee, the Court entered an order deeming the Mortgage Loan current . . . . The Mortgage Order also directed Defendant to adjust the Mortgage Loan balance to reflect the balance delineated in the original amortization schedule . . . and ordered that any amounts in excess of that balance were discharged. Thereafter, . . . Plaintiff maintained his monthly payments to Defendant, Defendant sent letters and mortgage statements to Plaintiff indicating the Mortgage Loan was delinquent. . . . The Amended Complaint . . . alleges that Defendant has a uniform set of policies and procedures for servicing mortgage loans, that Defendant has routinely failed to correct its records following a debtor’s receipt of a Chapter 13 discharge, and that Defendant systemically collects and/or attempts to collect discharged debts from Chapter 13 debtors. . . . The Mortgage Order . . . specifically provided . . . (a) All pre-petition arrearage claims of [Nationstar Mortgage] have been paid in full . . . (b) All regular, post-petition mortgage payments have been made by the Trustee . . . (c) The mortgage obligation to [Nationstar Mortgage] is hereby deemed current . . . (d) [Nationstar Mortgage] shall adjust its loan balance to reflect the balance delineated in the original amortization schedule . . . . Any amounts in excess of that balance, including any alleged arrearage, costs, fees or interest are hereby discharged . . . . Defendant provides no explanation . . . as to why the . . . mortgage statement indicated the total amount due was $6,900.28 even after Plaintiff made all the monthly mortgage payments after entry of the Mortgage Order. . . . The Court can draw no conclusion but that the . . . Mortgage Loan statement was an attempt to collect discharged debt and violated the discharge injunction. . . . The Court notes that [one] letter did contain a disclaimer that stated if the account holder had received a discharge in bankruptcy, the letter is not an attempt to collect a debt from the account holder personally, but was provided for informational purposes. This disclaimer, however, does not neutralize the remaining provisions of the letter that were designed to encourage if not coerce payment from Plaintiff. . . . Defendant was an active participant in Plaintiff’s Chapter 13 proceeding, and as a result, had actual knowledge of the discharge injunction when it sent the letters and mortgage statement to Plaintiff.”).
Kenderes v. Nationstar Mortg. LLC, No. 17-03103dwh, 2018 WL 1442233, at *2 (Bankr. D. Or. Mar. 21, 2018) (Hercher) (Material disputed facts preclude summary judgment for Nationstar in adversary proceeding alleging that Nationstar violated automatic stay by including prepetition escrow shortage in the arrearage portion of its proof of claim and then using the same escrow shortage as the basis for a postpetition notice of mortgage payment change. “[T]he stay does not prohibit creditors from using the claims-filing process or requesting relief from the stay . . . . Nationstar invites me to conclude, on the same logic, that a notice of mortgage-payment change can never be a stay violation. I disagree. The purpose of a notice of mortgage-payment change is to enable a chapter 13 debtor-homeowner to make mortgage-maintenance payments required by section 1322(b)(5). . . . As long as a creditor uses the notice only to specify the amounts and due dates of postpetition mortgage-maintenance installment payments and not to include any amounts that were due before the petition date or that come due because of a prepetition default or the filing of the petition, the creditor of course does not violate the stay. But the Kendereses have alleged that the amount that Nationstar stated in its notice of mortgage-payment change included not just their required postpetition installment payment, but also some or all of the amount by which they were in default to Nationstar as of the petition date. If true, that act by Nationstar would constitute a stay violation. . . . [T]he Kendereses essentially allege that Nationstar tricked them into paying a prepetition shortage by making them believe it was a postpetition shortage. That kind of trickery might not qualify as coercion or harassment, but it would be equally, if not more, likely than coercion or harassment to result in a debtor’s payment of a prepetition debt.”).
In re Formosa, 582 B.R. 423, 428–36 (Bankr. E.D. Mich. Jan. 19, 2018) (Shefferly) (Bankruptcy Rule 3002.1(c) and (e) are not congruent: debtor and trustee can use an “objection” to challenge the allowance of fees and expenses under 3002.1(c) but must file a “motion” under Rule 3002.1(e) to determine whether payment of fees and expenses is required to cure and maintain payments under § 1322(b)(5). Attorney fees incurred by bank to unwind a foreclosure sale conducted in violation of the automatic stay are not recoverable under § 3002.1(c) because the note and deed of trust allow fees only when incurred “to protect [the lender’s] interest in the property.” $2,500 attorney fee in lender’s 3002.1 notice is at high end of reasonable for representing bank in a Chapter 13 case, but that amount need not be paid by the debtor to cure and maintain payments through the plan because the lender has not given the “notice” required by the deed of trust to request payment. The bank’s notice of postpetition fees and expenses under Rule 3002.1 is not the same as the “notice” required by the deed of trust when a mortgagee wants to be paid postpetition fees and expenses. The postpetition fees and expenses will be added to the amount owed by the debtor and will become payable when the note matures absent notice from the lender requesting earlier payment. “While the issues required to be adjudicated by motion under Rule 3002.1(e) are similar to the issues encompassed by Rule 3002.1(c), they are not identical. Rule 3002.1(e) expressly requires a motion when either a debtor or a trustee seeks a determination of whether payment of a claimed fee or expense ‘is required by the underlying argument, and applicable nonbankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the Code.’ But a notice filed under Rule 3002.1(c) is not limited to fees and charges that are required to ‘cure a default or maintain payments in accordance with § 1322(b)(5) of the Code.’ . . . A notice filed under Rule 3002.1(c) may include any fees or expenses claimed by a creditor holding a mortgage on a debtor’s principal residence, without regard to whether payment of such fees or expenses is required to ‘cure a default or maintain payments in accordance with § 1322(b)(5) of the Code.’ . . . [T]he Bank admits that the Law Firm’s fees are not ‘required to cure a default or maintain payments in accordance with § 1322(b)(5).’ The Bank explains that the reason is because [section 9 of the mortgage] states that attorney fees . . . ‘shall become additional debt of Borrower . . . and shall be payable . . . upon notice from Lender to Borrower requesting payment.’ The Bank admits that it has not issued such notice and that payment of any of the Law Firm’s fees at this time is not required for the Debtor to cure and maintain the Mortgage in accordance with § 1322(b)(5). . . . [T]he Law Firm’s fees, to the extent recoverable at all under the Mortgage, simply become part of the debt owed by the Debtor to the Bank, due and payable only when the note secured by the Mortgage matures and becomes due and payable, absent a notice from the Bank requesting payment. Therefore, the Debtor need not pay the Law Firm’s fees in order to cure and maintain the Mortgage under § 1322(b)(5).”).
In re Chancellor, No. 11-45924-13, 2017 WL 6371364, at *2–*3 (Bankr. W.D. Mo. Dec. 12, 2017) (Dow) (Rule 60 relief is granted to vacate discharge order when neither trustee nor court was aware that debtor was in default of direct payments to mortgagee. Mortgagee failed to respond to trustee’s notice of final cure under Bankruptcy Rule 3002.1, but debtor contributed to mistaken entry of discharge order by filing motion for entry of discharge without revealing substantial default in direct payments to mortgagee. “[W]hen a debtor’s plan provides for ongoing payments directly to the creditor, and the debtor defaulted in such payments, the debtor is not entitled to a discharge under § 1328(a). . . . Creditor did not file a response to Debtor’s motion for entry of discharge nor to Trustee’s notice of final cure. While the Court agrees that Creditor was derelict in its duties to respond to either motion or notice, that does not change the fact that Debtor was not eligible for a discharge under § 1328(a) and that the Court granted such discharge on a mistake of fact that Debtor had in fact made all payments due under the plan. Debtor knew that she had not made all of the required post-petition payments but still filed a motion for entry of discharge and asserted that she was eligible for a discharge under all applicable Bankruptcy laws and rules when this was not true . . . . [F]undamental fairness requires that relief should be granted from the discharge order under Rule 60(b)(1).”).
In re Ferrell, 580 B.R. 181, 185–89 (Bankr. D.S.C. Oct. 13, 2017) (Waites) (Responding inaccurately and failing to prove delinquency after contest of final cure notice results in 3002.1 order that declares mortgage current, forbids Shellpoint Mortgage to collect disputed amounts or any other amount not included in a proper 3002.1 notice and court awards $1,500 attorney fees for the inaccurate and misleading information. Confirmed plan provided for cure of mortgage default and maintenance of regular payments under § 1322(b)(5). In response to notice of final cure payment, Shellpoint indicated the debtors were delinquent on postpetition payments of $6,671.65. Debtor’s counsel provided Shellpoint with evidence that debtors had tendered every monthly mortgage payment. Shellpoint then represented to debtor’s counsel that the arrearage was actually $12,459.64. Debtors moved for a hearing pursuant to Bankruptcy Rule 3002.1(h). Shellpoint did not appear. “[A] 3002.1(g) supplement does not enjoy the same prima facie presumption of validity as does the mortgage creditor’s underlying proof of claim. . . . [T]he mortgage creditor must appear at the hearing on the debtor’s Rule 3002.1(h) motion and present evidence to establish its entitlement to the postpetition amounts claimed . . . . [I]n response to the Supplement, the Debtors filed and served a timely motion pursuant to Rule 3002.1(h) . . . . Pursuant to Bankruptcy Rule 3002.1(h), the Court finds that Shellpoint has waived its right to the Disputed Amounts. The Court further finds that the Debtors have paid all required postpetition amounts . . . and declares that Loan 7209 is current . . . . Shellpoint failed to appear to prove its entitlement to the Disputed Amounts, and the evidence presented at the hearing calls into question the amounts the Supplement claims are due. . . . Because of the importance and mandatory nature of the Supplement, the Court has little difficulty finding that implicit in Rule 3002.1 is the requirement that the information the mortgage creditor provides be accurate. . . . Shellpoint provided the Debtors with inconsistent information regarding the status of their postpetition mortgage, failed to object to the Motion and Notice, and failed to appear at the hearing and submit evidence to support the figures contained in the Supplement. These factors, coupled with the Debtors’ testimony that contradicts the amounts set forth in the Supplement, cause the Court to find the Supplement is incorrect and inaccurate. The filing of an incorrect and inaccurate Rule 3002.1(g) statement is the equivalent of filing no statement at all. Indeed, an incorrect statement could be viewed as worse than no statement. . . . [I]t is appropriate to treat Shellpoint’s inaccurate Supplement as the equivalent of a failure to provide the information required by Bankruptcy Rule 3002.1(g), thus subjecting Shellpoint to sanctions pursuant to Bankruptcy Rule 3002.1(i) . . . and § 105. . . . Loan 7209 is deemed to be current . . . . The Disputed Amounts are deemed waived and/or cured by the Debtors’ completion of their confirmed Chapter 13 plan. . . . To the extent that there exists any other postpetition amounts for fees, charges, and/or expenses that Shellpoint might assert were incurred . . . these sums are deemed waived, cancelled, and discharged. . . . Any attempt by Shellpoint to collected [sic] the Disputed Amounts or any other postpetition amounts for fees, charges, and or expenses, is and shall be a willful violation of this Order and the discharge injunction of § 524, and punishable by the contempt powers of this Court.”).
In re Newberry, No. 12-52072-CAG, 2017 WL 4564704, at *2, *3, *4
Cawood v. Seterus, Inc. (In re Cawood), 577 B.R. 538 (Bankr. E.D. Tenn. Sept. 29, 2017) (Rucker) (Bankruptcy court denies motions to dismiss class action complaint alleging that Seterus and others “willfully and systematically” failed to properly account for mortgage payments in Chapter 13 cases. Plaintiff’s home went into foreclosure after completion of Chapter 13 case that cured defaults and after a 3002.1 order in prior case declaring mortgage current. Bankruptcy court has jurisdiction over various state and federal causes of action that do not require enforcement of discharge because mortgage was not discharged in Chapter 13 case. Actions for damages do not implicate discharge but affect assets and liabilities in current Chapter 13 case. Determination of nationwide class action status is premature.).
In re Trudelle, No. 16-60382-EJC, 2017 WL 4411004, at *2
In re Bethe, No. 11-25388-GMH, 2017 WL 3994813, at *1
In re Tanner, No. 12-01429, 2017 WL 3641575, at *2
In re Thornton, 572 B.R. 738, 739-42 (Bankr. W.D. Mo. June 28, 2017) (Federman) (Mortgagee’s objection to 3002.1 notice of final cure is sustained and debtor’s motion for entry of discharge is denied when debtor was substantially in default of direct payment of mortgage notwithstanding completion of payments to trustee. “Debtor was actually current on her mortgage payments when she filed this case. According to the Local Rules of this District, if a debtor has no past due payments or charges due to the holder of a mortgage claim, other than the regular payment due in the month of filing, the debtor may propose a Chapter 13 plan in which the debtor makes the postpetition mortgage payments directly to the holder of the claim, rather than through the Chapter 13 Trustee. . . . On March 28, 2017, the Trustee filed a Notice of Completion of Chapter 13 Plan . . . . [B]ecause the ongoing postpetition payments were to be paid by the Debtor directly, the Trustee stated he had no knowledge of whether the Debtor was current on those postpetition mortgage payments. . . . Select Portfolio filed a Statement in Response to the Trustee’s Notice of Final Cure Payment, saying that there was a postpetition arrearage of $35,742.74 . . . . [S]ince the Debtor’s plan provides for payment of the ongoing mortgage directly to the mortgagee, and the Debtor defaulted in such payments, the Debtor is not entitled to a discharge under § 1328(a).”).
Ridley v. M & T Bank (In re Ridley), 572 B.R. 352, 356-61 (Bankr. E.D. Okla. May 31, 2017) (Cornish) (M & T Bank violated § 524(i) and is in civil contempt for declaring defaults, sending erroneous notices and adding improper fees, charges and corporate advances after concurring in 3002.1 notice that mortgage was current and all delinquencies cured. “[T]he Chapter 13 Trustee filed his Notice of Final Cure Payment . . . . M & T Bank filed its Statement in Response . . . wherein M & T bank stated it agrees that the Debtor was current with regard to all pre- and post-petition default payments. . . . M & T Bank has attempted . . . to collect from the Plaintiff Fees, Charges and Expenses that were not disclosed in the course of the Plaintiff’s Chapter 13 Bankruptcy as required by F.R. Bankr. P. 3002.1. . . . This case represents one of the classic situations that led to the adoption of § 524(i): a chapter 13 debtor makes all the required payments on long-term debt required through the life of his confirmed plan, receives a discharge, and is then told that his mortgage is in default, he owes additional charges, and is threatened with foreclosure.”).
In re Tatum, No. 15-31925 VFP, 2017 WL 3311219, at *3 (Bankr. D.N.J. May 15, 2017) (Papalia) (Fees and expenses incurred by bank before the 180-day period in Bankruptcy Rule 3002.1(c) are disallowed. “[T]here is no question that $6,190.28 of the fees and expenses that the Bank seeks to recover were incurred outside the 180
In re Velazquez, 570 B.R. 251 (Bankr. S.D. Tex. Apr. 17, 2017) (Rodriguez) (When proof of claim filed by mortgagee shows monthly payment different than stated in confirmed plan, trustee is not authorized to retroactively adjust payments into the plan; instead, trustee must pay the mortgagee consistent with the allowed proof of claim and, if necessary, seek court order to modify plan. When mortgagee files a Bankruptcy Rule 3002.1 notice of mortgage payment change, local rules allow the trustee to notice that change to the debtor and to then adjust the plan payment prospectively—without the filing of a modified plan.).
In re Cotsis, No. 15-20588, 2017 WL 745591, at *2
In re Salazar, No. 14-34691, 2016 WL 6068819, at *1
In re Raygoza, 556 B.R. 813, 819-24 (Bankr. S.D. Tex. Sept. 1, 2016) (Rodriguez) (Legal fees were “incurred” for purposes of Bankruptcy Rule 3002.1 when creditor became liable, not when the fees were billed; objection to Bankruptcy Rule 3002.1 notice is sustained because notice was filed more than 180 days after legal services were performed. $825 charge for filing a proof of claim is reduced to one hour at $250. Bank filed notice of postpetition mortgage fees, expenses and charges on May 25, 2016, that included legal services performed on November 6 and November 9, 2015. “In order to be timely, the creditor’s notice for the fees, expenses or charges must be filed and served within 180 days from the day the creditor incurred the expense. . . . Rule 3002.1 does not expound on when exactly an expense is incurred. . . . [A]n expense is incurred when a legal obligation to pay the debt arises, which is the date the service is rendered. . . . Both the dictionary definition and the statutory context establish that an expense is ‘incurred’ [when] there is a legal obligation to pay the debt. The [notice of postpetition expenses] was filed outside the 180-day limit imposed by Rule 3002.1(c) for the legal fees incurred in November 2015. . . . There is considerable debate among bankruptcy courts as to whether services completed by attorneys drafting proofs of claim for their clients are considered legal acts warranting attorney’s fees. . . . [S]everal bankruptcy courts regard the drafting and filing of a proof of claim as nothing more than a ministerial act, which does not require an attorney. . . . [T]he drafting and filing of a proof of claim is partially an ‘administrative function’ that does not constitute the practice of law, which in turn cannot be subject to attorney’s fees. . . . [T]his Court will allow a portion of the December 2015 attorney’s fees for work on the [proof of claim]. . . . Based on the lack of evidence presented, this Court finds that the nature and extent of . . . Counsel’s services include one-hour of legal work in conducting the necessary legal services in preparing the [proof of claim].”).
In re Freyta, No. 10-39595, 2016 WL 5390115 (Bankr. D. Colo. May 5, 2016) (Tallman) (Debtor is not eligible for discharge and trustee’s request for final decree is denied when mortgagee’s response to Trustee’s Notice of Final Cure Payment under Bankruptcy Rule 3002.1(f) stated that prepetition arrearage had not been fully paid and debtor failed to maintain postpetition payments consistent with § 1322(b)(5). Debtor was not eligible for a discharge and the trustee’s request for a final decree was denied.).
In re Marks, 548 B.R. 703, 714 (Bankr. D.S.C. Apr. 21, 2016) (Waites) (Bankruptcy Rule 3002.1 notice for $72,671 of postpetition attorney fees is reduced to $62,475 because some of the fees requested were untimely filed more than 180 days after fees were incurred. Court first determined that Nationstar had authority to enforce note and mortgage, including attorney fee provision that was triggered by debtor's unsuccessful state court lawsuit. Nationstar then filed 3002.1 notices for fees incurred in the state court litigation. "Nationstar failed to comply with Rule 3002.1 by filing notices that were untimely, vague, confusing, and lacked adequate documentation. Rule 3002.1(b) provides that the notice shall be served within 180 days after the date on which the fees, expenses, or charges are incurred. . . . Nationstar's Notice is untimely as to amounts incurred between May 2, 2012 and May 11, 2012 (the 180th day prior to the filing of the Notice). . . . [P]ursuant to Rule 3002.1(i), the Court will preclude Nationstar from recovering attorneys' fee based on requests that were untimely filed . . . and finds that a further reduction of the amount Nationstar is entitled to collect from Debtor is warranted[.]").
In re Abila, No. 10-18358, 2016 WL 5389266 (Bankr. D. Colo. Apr. 20, 2016) (Tallman) (Debtor not entitled to discharge because Response to Trustee’s 3002.1 Notice of Final Cure indicates that debtor failed to make all monthly mortgage payments directly to lienholder.).
In re Tavares, 547 B.R. 204, 215-16 (Bankr. S.D. Tex. Mar. 11, 2016) (Rodriguez) (Confirmed plan that paid short-term mortgage "pro rata" did not provide for the mortgage under § 1322(b)(5) for purposes of Bankruptcy Rule 3002.1(f); trustee's notice of final cure was "stricken." Mortgagee protested trustee's 3002.1(f) notice of final cure payment. Confirmed plan provided for payment in full of mortgage with interest over 60 months on a "pro rata basis." Trustee's records and mortgagee's records disagreed because mortgagee had applied payments to interest and postpetition taxes rather than to principal and interest. "Rule 3002.1 . . . is entirely inapplicable to the instant case, because [mortgagee's] claim was provided for under § 1322(c)(2) and not 1322(b)(5), as required by Rule 3002.1(a). . . . [T]he underlying claim did not contemplate the existence of the debt beyond the date in which final payments were to be made under the plan. . . . Rule 3002.1 applies in cases where the security interest is the debtor's principal residence and for which payments are provided under § 1322(b)(5).").
In re Herman, No. 15-80027-G3-13, 2016 WL 520306, at *2-*3 (Bankr. S.D. Tex. Feb. 9, 2016) (Paul) (Oversecured mortgagee, whose debt was current and being paid directly under confirmed plan, failed to prove reasonableness or necessity under § 506(b) for $425 postpetition charge for filing proof of claim. "Although Debtors are current on their payments to Creditor who is being paid outside of the confirmed plan, the fact that the bankruptcy proceeding is pending might still significantly affect Creditor's interest in the property. . . . [I]t is not unreasonable for Creditor to have filed a proof of claim under the facts of this case, regardless of whether the creditor is required to do so. . . . The court has concluded in other bankruptcy cases, after the submission of evidence, that a flat or fixed fee of $425 for the filing of a proof of claim is reasonable. In order for the court to determine that the fees are reasonable under section 506(b) of the Bankruptcy Code, the creditor must establish that fees were for services rendered that were necessary, that the fees were actually incurred, and that the amounts charged for the services rendered were reasonable. Creditor offered no testimony or evidence. . . . [N]o evidence was submitted or proffer made to describe the services rendered . . . . Creditor failed to sustain its burden of proof to show that the fees are reasonable under section 506(b) of the Bankruptcy Code. . . . [T]he burden of proof is on the oversecured creditor . . . . [T]he court must determine whether the creditor took the kinds of actions that similarly situated creditors might reasonably conclude should be taken under the circumstances and that the fees and costs claimed are reasonable amounts to charge for the services rendered.").
In re Davenport, 544 B.R. 245, 254-56 (Bankr. D.D.C. Dec. 31, 2015) (Teel) (Bankruptcy Rule 3002.1 does not apply when confirmed plan provided that debtor would pay claim secured by real estate directly to the creditor and the creditor filed a proof of claim that did not include prepetition arrears. When debtor completed payments under the plan, creditor asserted unpaid prepetition arrears which could not be challenged in the bankruptcy court for lack of subject matter jurisdiction. "[T]he arrears claim at issue was not provided for by the plan, and thus the property remains subject to the arrears claim. . . . It is true that Fed. R. Bankr.P. 3002.1 provides a procedure for the debtor to obtain a determination of whether the debtor has cured any arrears when a claim secured by a security interest in the debtor's principal residence is 'provided for under § 1322(b)(5) of the Code in the debtor's plan.' Here, however, the issue of determining whether the debtor has cured the arrears does not arise because the plan did not make provision for payment of any arrears owed on the $80,000 promissory note, and Rule 3002.1 is thus inapplicable." Bankruptcy court does not explain this holding given that the confirmed plan provided that the debtor would pay directly the mortgage claim "to the extent they are 11 U.S.C. § 1322(b)(5) claims" and the claim at issue was such a claim.).
In re Fitch, 540 B.R. 13, 14-15 (Bankr. D. Me. Nov. 3, 2015) (Fagone) (Direct payment of mortgage "provides for" mortgage under § 1322(b)(5), triggering Bankruptcy Rule 3002.1. Bankruptcy Rule 3002.1 applies when there are no arrears and payments are made directly by the debtor. Motion to determine that mortgage is current is denied—notwithstanding absence of response or objection—because debtors did not follow Bankruptcy Rule 3002.1. Plan stated debtors would make monthly mortgage payments directly to BAC Home Loans. Debtors completed all payments under confirmed plan and received a discharge. Debtors then moved to determine status of mortgage as current. "Although no party objected to the Motion to Determine, the Court conducted a hearing on . . . a single legal question: whether Fed. R. Bankr. P. 3002.1 is applicable to BofA's claim in this case, where there was no pre-petition default to be cured and where the Debtors made payments on account of the secured claim directly to the holder of the claim. . . . [T]he answer is 'Yes.' . . . The Debtors' plan does not expressly provide for BofA's claim under section 1322(b)(5). That said, . . . section 1322(b)(5) is the only part of chapter 13 that would permit the Debtors to maintain payments on the long-term debt associated with BofA's secured claim. . . . [T]he rule requires notice of payment changes . . . and notice of certain fees, expenses, and charges incurred post-petition. . . . This is the type of information that any chapter 13 debtor would want, regardless of whether the mortgage loan was in default before or after the commencement of the case.").
In re Thibeault, No. 11-10072, 2015 WL 5924392, at *1-*3 (Bankr. D. Me. Oct. 8, 2015) (Fagone) (Debtors' motion for an order declaring residential mortgage current and arrears cured is denied because motion was inconsistent with procedure in Bankruptcy Rule 3002.1. "On August 5, 2015, the Debtors filed their Motion to Determine that Mortgage Default is Cure [sic], Post-Petition Payments Have Been Made . . . . More than a month after the Motion to Determine was filed, the chapter 13 trustee filed his Notice of Final Cure Payment. . . . On September 25, 2015, CitiFinancial filed its statement . . . . CitiFinancial agreed that the Debtors had 'paid in full the amount required to cure the default . . . ' and that the Debtors were 'current with respect to all payments . . . .' . . . The process spelled out in Rule 3002.1 has not been followed in this case. The Motion to Determine was filed well before the trustee filed his notice pursuant to Rule 3002.1(f). . . . [A] motion seeking declaratory relief under Rule 3002.1(h) is supposed to await the service of the Rule 3002.1(f) notice and the service of a response by the holder of the claim under Rule 3002.1(g). There is a logical sequence . . . . That sequence was not followed here. The ability of the Court to grant declaratory relief under some other statute or rule does not excuse compliance with the specific procedures set forth in Rule 3002.1.").
Kilbourne v. CitiMortgage, Inc. (In re Kilbourne), 555 B.R. 628 (Bankr. S.D. Ohio Mar. 23, 2015) (Preston) (Bankruptcy court refuses to dismiss class action request in adversary proceeding alleging that CitiMortgage routinely violated discharge injunction by attempting to collect fees, costs and expenses that were not noticed during Chapter 13 cases under Bankruptcy Rule 3002.1 and in which orders were entered declaring the mortgage current at completion of payments.).
In re Pittman, No. 14-03404, 2015 WL 1262837, at *2-*3 (Bankr. D.S.C. Mar. 16, 2015) (Burris) (Objection to 3002.1 notice: $225 "Attorney fees" and $425 "Bankruptcy/proof of claim fees" disallowed based on lack of response, appearance or proof by Nationstar. Debtor was current on mortgage, and there were no arrears. Plan was confirmed without objection. "[A] notice filed under Rule 3002.1 does not constitute prima facie evidence as to the validity or amount of the claimed charges. . . . In this matter, the Court cannot even determine from the documents provided that any attorney was involved in the preparation and filing of Nationstar's claim and 3002.1 Notice. Without any response, testimony, or other evidence presented by Nationstar to demonstrate that the requested fees are allowable pursuant to the underlying agreement or non-bankruptcy law, or that such fees were actually incurred and are necessary and/or reasonable, there is insufficient information for a finding that the requested fees for the services are permissible.").
In re Hale, No. 14-04337-HB, 2015 WL 1263255, at *3 (Bankr. D.S.C. Mar. 16, 2015) (Burris) ($150 charge for "Review of Plan" and $150 for "Proof of Claim" disallowed when Bank of America did not respond to objection to 3002.1 notice. "[M]ortgage creditors' Rule 3002.1 notices must provide adequate descriptions for such contractual charges. . . . [S]imply including 'Review of Plan' or 'Proof of Claim' on the 3002.1 Notice . . . does not necessarily explain to the debtor, the trustee, or the Court why the services of an attorney were needed, whether the charges are reasonable on the particular facts of the case, who performed the work, the time spent on the task, the rate charged, etc. . . . Without any response, testimony, or other evidence presented by B of A to supplement the insufficient 3002.1 Notice and to demonstrate that the requested fees are allowable pursuant to the underlying loan agreement or non-bankruptcy law and were necessary and/or reasonable, there is insufficient information for a finding that the requested fees for the services are permissible.").
In re Luzier, 580 B.R. 725, 730–31 (Bankr. N.D. Ohio Oct. 3, 2014) (Woods) (Nationstar’s failure to respond to Notice of Final Cure in prior Chapter 13 case precludes Nationstar under Bankruptcy Rule 3002.1(i) from presenting evidence that it is owed amounts that were not paid during the prior case. Confirmed plan cured default through the trustee and required debtor to make ongoing payments directly to mortgagee. Trustee gave Notice of Final Cure and Nationstar did not respond. Debtor received discharge. Nationstar then threatened foreclosure claiming that debtor did not make all the required direct payments and claiming that some of the debts discharged in prior case were still owing. Debtor filed second case to stop foreclosure. “Federal Rule of Bankruptcy Procedure 3002.1(g) required Nationstar to respond to the Notice of Final Cure if it did not agree with the amounts set forth therein. . . . Nationstar has offered no explanation for its failure to file the statement required by Rule 3002.1(g); there is no basis for a finding that the failure was substantially justified. As a consequence, . . . Nationstar is precluded from presenting any information that could have been included in a statement in response to the Notice of Final Cure, in any form, as evidence in any contested matter or adversary proceeding in this case . . . . [The court] will set a further hearing to determine reasonable expenses and attorney’s fees caused by Nationstar’s failure to file the statement required by Rule 3002.1(g).”).
Winnecour v. First Commonwealth Bank (In re Susanek), No. 12-23545-GLT, 2014 WL 4960885, at *2 (Bankr. W.D. Pa. Sept. 30, 2014) (Taddonio) (Oversecured creditor may recover attorney fees for preparation of notice of postpetition fees and expenses required by Bankruptcy Rule 3002.1 when fees otherwise satisfy § 506(b). "Notices under Rule 3002.1 are mandatory. If the creditor seeks to recover postpetition charges or alter the monthly payment or escrow charge, it must file a notice in compliance with the Bankruptcy Rules. The notices required under Rule 3002.1 are considered to be a supplement to the creditor's proof of claim. . . . [T]he preparation and filing of a proof of claim is not a perfunctory act. . . . It logically follows that filing a supplement to a proof of claim (such as a notice of post-petition fees), is similarly vital to the protection of a creditor's claim and is not a ministerial act. Because Rule 3002.1 imposes substantial consequences for creditors that fail to comply, it is reasonable for a creditor to rely upon legal counsel to prepare a claim supplement.").
In re Dibling, 514 B.R. 254, 258 (Bankr. S.D. Ohio Aug. 4, 2014) (Caldwell) (Mortgage creditor violated Order Deeming Mortgage Current when it failed to immediately update its records and rejected debtors' payments on ground loan was in default. Creditor's rejection of payments did not excuse debtors' obligation to tender each mortgage payment following completion of plan. "Debtors should have continued to submit all mortgage payments as they fell due, and upon rejection, deposit the funds in a separate account. In this manner, once the Creditor corrected its records in compliance with the Order Deeming the Mortgage Current, the Debtors would have been able to forward all the payments that were due back to [conclusion of plan]. To hold otherwise, would require this Court to fashion a new note and mortgage.").
In re Heinzle, 511 B.R. 69, 80 (Bankr. W.D. Tex. May 30, 2014) (Gargotta) (Trustee's notice under Bankruptcy Rule 3002.1(f) that debtors cured any default did not estop trustee from objecting that debtors had not stayed current on their mortgage. "[Section] 1322(b)(5) requires that Debtors cure and maintain payments for long term debt. That is, Debtors may cure a pre-petition mortgage delinquency through the plan, but they must do so by also staying current on their mortgage. . . . Foster [v. Heitkamp (In re Foster), 670 F.2d 478, 486 (5th Cir. Mar. 1, 1982) (Garza, Randall),] dictates that regardless how a plan is written, post-petition mortgage payments are payments made pursuant to the plan and the failure to maintain such payments will result in dismissal, conversion, or denial of discharge.").
Ogden v. PNC Bank, N.A. (In re Ogden), 532 B.R. 329, 331-34 (Bankr. D. Colo. Apr. 3, 2014) (Brown) (Convoluted mortgage accounting by bank—including two sets of books—did not violate automatic stay, confirmation order or Bankruptcy Rule 3002.1 when bank promised it would "true up" the accounting and eliminate all accrued charges if debtor completed payments under the plan. In earlier action under RESPA, bank agreed to reduce mortgage balance and pay the debtor $5,000. During Chapter 13 case, debtor sought evidence that bank had actually carried out the settlement. Discovery revealed additional postpetition fees and corporate advances that did not appear on statements from the bank. "[The Bank's witness] attempted to eliminate the confusion by explaining that the Bank keeps essentially two sets of books . . . one for bankruptcy purposes and one that accounts for the loan as if she had not filed for bankruptcy. . . . The reason the Bank uses two forms of accounting is because, unless the Debtor completes her plan, she will remain subject to all of the terms of her promissory note and deed of trust, including the accrual of late fees and the like. . . . The Debtor asserts that the Bank's accounting practices violate the automatic stay, her confirmed plan, and [Bankruptcy Rule 3002.1] by applying her postpetition payments to the oldest contractually due payment, contrary to her plan, as well as by tacking on numerous postpetition fees and charges. She asserts that this method of accounting results in her being charged more interest and receiving less principal reduction than she would otherwise realize. . . . The problem is that the Bankruptcy Code and [Bankruptcy Rule 3002.1] provide only limited oversight by the bankruptcy court during the term of the plan. . . . In this case, the Bank has filed only three notices in compliance with [Bankruptcy Rule 3002.1] . . . . It has not filed any notices to reflect the additional $5,500 in postpetition charges and fees set forth in the August 15, 2013 reinstatement quote. . . . [Bankruptcy Rule 3002.1] prescribes a 180-day deadline for filing a notice that begins when each postpetition charge or fee is incurred. . . . [I]t would be logical to conclude that the fees and charges will no longer be collectable against the Debtor or her home if the Bank fails to comply with this provision. Subsection (i), however, sets forth the consequences for failure to provide notices. . . . Whether 'other appropriate relief' includes the ability to preclude the mortgage holder from later collecting the fees and charges is an open question. . . . [I]t makes no mention of whether the notice requirements of subsections (b) and (c) have a continuing effect in the event that a debtor later obtains a hardship discharge, modifies her plan, or converts to a chapter 7 proceeding. . . . The Court must accept [the bank's] testimony on its face that, if the Debtor completes her plan payments, the Bank will 'true up' her loan at the end of the plan. If it fails to do so, this Court will stand ready, willing, and able to enforce § 524(i)'s sanctions. The Debtor may preempt subsequent litigation by invoking [Bankruptcy Rule 3002.1's] 'notice of final cure payment' provisions under subsection (f) to obtain a court order declaring the loan to be current. The Court acknowledges that this may be an imperfect solution. If the loan is deemed 'current,' but the Debtor has not received as much principal reduction as she should have realized, then this may be of little comfort to the Debtor. A better solution may lie outside of the bankruptcy world. . . . RESPA contains procedures for requesting information from a loan servicer, sets deadlines for the servicer's response, and imposes sanctions against a servicer who either fails to provide a timely response or to correct the borrower's account.").
In re Owens, No. 12-40716, 2014 WL 184781, at *3, *4 (Bankr. W.D.N.C. Jan. 15, 2014) (Whitley) (Miscellaneous fees and expenses disallowed when lender failed to comply with Bankruptcy Rule 3002.1(c). Rule 3002.1(c) "does not turn on the subjective intent of the creditor"—lender's assertion that it may not seek to collect fees if plan is successful is irrelevant. "Rule 3002.1(c) makes no mention of the timing of collections, only that a particular form of notice is required to be filed and served in a particular way when a creditor wants to assert a recoverable fee. It does not turn on creditor intent.").
In re Roife, No. 10-34070, 2013 WL 6185025, at *2-*3 (Bankr. S.D. Tex. Nov. 26, 2013) (Isgur) (Mortgage holder paid in accordance with contract pursuant to confirmed plan must comply with Bankruptcy Rule 3002.1; $125 legal fee for preparation of Bankruptcy Rule 3002.1 notice is not allowed. "[I]f a plan makes a provision for an unmodified secured claim, the plan provides for the claim. . . . [N]o fee should be charged to a debtor for filing the Fee Notice [or notice of payment change] because a creditor has a duty under non-bankruptcy law to inform a debtor of amounts due under a mortgage. . . . [A] Fee Notice is not a pleading, but a supplement to the creditor's proof of claim. . . . It can easily be derived from the creditor's records with no significant burden on the creditor. . . . It is a business function, akin to issuing a receipt for payments received under a chapter 13 plan. . . . Its preparation is not the practice of law and requires no legal analysis. . . . [M]ere fact that sanctions may be imposed for incorrectly performing this task does not justify the award of fees. Non-bankruptcy law provides penalties for failing to comply with the notice requirements of RESPA, but fees may not be charged for providing the statutorily required payment notices under RESPA.").
Bodrick v. Chase Home Fin., Inc. (In re Bodrick), 498 B.R. 793 (Bankr. N.D. Ohio Oct. 8, 2013) (Woods) (Debtor's failure to file motion under Bankruptcy Rule 3002.1(h) within 21 days after lender filed statement disputing trustee's notice of final cure payment does not preclude or waive debtor's postdischarge adversary proceeding challenging lender's postpetition arrearage claim. No final determination of lender's claim occurred for purposes of res judicata analysis. The lender's response is not entitled to any presumption of validity, and Bankruptcy Rule 3002.1(h) does not mandate debtor action to preserve a claim dispute.).
In re Nieves, 499 B.R. 222, 225, 224-25 (Bankr. D.P.R. Sept. 25, 2013) (Godoy) (Creditor disagreeing with trustee's notice of final cure payment issued under Bankruptcy Rule 3002.1(f) must respond using Form 1052 and must state with "'particularity the amounts that remain unpaid.'" "Like Rule 3002.1(g), Rule 3002.1(c) requires the holder of the claim to file and serve 'a notice itemizing all fees, expenses, or charges (1) that were incurred in connection with the claim after the bankruptcy case was filed, and (2) that the holder asserts are recoverable against the debtor or against the debtor's principal residence.' . . . And Rule 3002.1(d) requires that the Rule 3002.1(c) notice be prepared using Form 10S2 [Supplement 2 to Official Proof of Claim Form 10]. Form 10S2 requires the claim holder to '[i]temize the fees, expenses, and charges incurred on the debtor's mortgage account after the petition was filed' by providing a description, dates incurred, and amount, item by item. And the form must be signed by the holder under penalty of perjury. . . . So, '[t]he creditor must respond to that notice [of final cure payment] by acknowledging that it is correct, or if it is not, stating with particularity the amounts that remain unpaid.' . . . [In addition,] the Rule 3002.1(g) response must be signed by the holder under penalty of perjury.").
In re Rodriguez, No. 08-80025-G3-13, 2013 WL 3430872, at *3-*4 (Bankr. S.D. Tex. July 8, 2013) (Paul) (Mortgage declared cured and current under Bankruptcy Rule 3002.1(h) when Nationstar did not respond to trustee's Notice with respect to postpetition charges, Nationstar did not file all notices required by Bankruptcy Rule 3002.1(c) and Nationstar presented no evidence to support any notice that it did file. Nationstar filed a proof of claim for a prepetition arrearage of $17,733.21. Confirmed plan provided for full payment of that arrearage. On August 3, 2011, trustee filed a "Notice of Bar Date for Asserting Claim for Post-petition Charges Accruing on Residential Mortgage Claims." The notice required Nationstar to supplement its proof of claim if it asserted charges, fees or additional arrearage during the case. Nationstar did not file a supplemental proof of claim. In June and July of 2012, Nationstar filed notices of postpetition mortgage fees, expenses and charges pursuant to Bankruptcy Rule 3002.1(c) totaling $908.28. The debtor did not object to those notices. On January 3, 2013, the trustee filed a Notice of Final Cure Payment together with a motion to deem the mortgage current. Nationstar filed a response asserting postpetition arrearage of $25,798.02. Nationstar claimed that it had paid taxes and insurance for several years, but Nationstar presented no evidence as to any disbursements it may have made. "[T]he Trustee filed a notice on August 3, 2011, which was sufficient to alert Nationstar as to the need to make a claim for those charges. The court concludes that Nationstar is barred from collecting those charges arising prior to August 3, 2011. Bankruptcy Rule 3002.1 took effect on December 1, 2011. . . . [T]he claimant bears the burden of proof under Bankruptcy Rule 3002.1(h). . . . [A]fter December 1, 2011, Nationstar filed two notices of postpetition fees, expenses, and charges, totaling $908.28. Debtor did not object to those notices. The notices were timely filed. However, those notices do not enjoy a presumption of validity. Nationstar presented no evidence of any disbursements, either before or after December 1, 2011. . . . [U]nder Bankruptcy Rule 3002.1(h), on the basis of the evidence before the court, . . . Debtor has cured the default, and paid all required postpetition amounts.").
Landry v. Bank of Am., N.A. (In re Landry), 493 B.R. 541 (Bankr. E.D. Cal. May 15, 2013) (Sargis) (Mailing notice of change in escrow amount, as required by Bankruptcy Rule 3002.1, could not violate automatic stay, even though notice demanded payment, but complaint sufficiently alleged that defendants were debt collectors, with potential liability under California's Rosenthal Fair Debt Collection Practices Act.).
In re Ortega, No. 10-40698-H3-13, 2013 WL 2099726, at *2 (Bankr. S.D. Tex. May 14, 2013) (Paul) (Mortgage holder not entitled to $50 fee for preparing Bankruptcy Rule 3002.1 notice of mortgage payment change. "[T]he claimant did not sustain its burden of proof as to the reasonableness of a $50 fee. The court concludes that the $50 fee for preparing the Notice of Mortgage Payment Change is not required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the Code.").
In re Tollios, 491 B.R. 886, 888-93 (Bankr. N.D. Ill. May 13, 2013) (Doyle) (Chase violated Bankruptcy Rule 3002.1 by sending debtor notice of increase in escrow payment but failing to file notice with court or to serve counsel or trustee; Bankruptcy Rule 3002.1 applies when confirmed plan pays mortgage directly by debtor notwithstanding that there was no prepetition arrearage. Court will consider awarding attorney fees as sanction but declines to bar evidence of escrow adjustment because debtor was not harmed by Chase's payment of postconfirmation property taxes. "Rule 3002.1 was adopted in December 2011 to address a significant problem caused when mortgage companies applied fees and costs to a debtor's mortgage while the debtor was in bankruptcy without giving notice to the debtor and then, based on these post-petition defaults, sought to foreclose upon the debtor's property after the debtor completed the plan. Rule 3002.1 deals with this problem by requiring notice of payment changes and providing an opportunity for the debtor to contest them during the chapter 13 case. . . . [T]he rule applies in chapter 13 cases to claims secured by the debtor's principal residence and provided for under § 1322(b)(5) . . . . [T]he debtors' plan provides that they will make current monthly payments to Chase's predecessor directly to the creditor instead of through a payment from the trustee. This provision of the plan brings Chase's claim within the scope of Rule 3002.1. . . . [Section] 1325(b)(5) makes it clear that debtors may maintain monthly payments regardless of whether they owe pre-petition arrears. . . . [A]ny plan that pays current monthly payments on a mortgage loan that extends beyond the plan term provides for the mortgage claim under § 1322(b)(5) for purposes of Rule 3002.1(a), regardless of whether there are pre-petition arrears. . . . Construing Rule 3002.1 to apply to mortgage claims only when the debtor owes prepetition arrears makes no sense in light of the requirements of the rule. It deals solely with post[-]petition changes to the monthly payment and post-petition charges the lender imposes under the loan agreement. . . . [T]here is a compelling reason for applying the rule both to debtors who owe pre-petition arrears and those who do not. Both types of debtors have an equal need to know of post-petition changes in the monthly payment and charges imposed by lenders so they can be fully current on their mortgages when they complete the plan. . . . Given that the debtors suffered no harm from Chase's noncompliance with the rule, the court will not bar Chase from presenting evidence of the notice served on the debtors at any future hearing on this issue. . . .[T]he court will consider whether an award of attorneys' fees is appropriate.").
In re Boyd, No. 12-80400-G3-13, 2013 WL 1844076, at *2 (Bankr. S.D. Tex. May 1, 2013) (Paul) (Fifty dollar fee to file Bankruptcy Rule 3002.1 notice is disallowed. "[N]o fee should be charged to a debtor for filing the form providing Notice as a creditor has a duty under nonbankruptcy law to inform a debtor of amounts that come due under a mortgage. . . . The court disallows the $50 charge for preparing the Notice.").
In re Kreidler, 494 B.R. 201 (Bankr. M.D. Pa. Mar. 29, 2013) (Thomas) (Mortgage creditor should not be sanctioned for filing tardy supplement to claim pursuant to Rule 3002.1(g). Tardiness did not prejudice debtor, whose motion and response to supplemental claim triggered necessary hearing.).
In re Taylor, No. 12-11463-NPO, 2013 WL 1276507 (Bankr. N.D. Miss. Mar. 27, 2013) (Olack) (On debtor's objection to payment change notice, creditor failed to prove prepetition arrearage for unpaid principal and interest, late charges and taxes; arrearage for insurance was allowed.).
In re Pillow, No. 1-11-BK-11688, 2013 WL 10252924, at *2-*5 (Bankr. W.D. Mich. Mar. 18, 2013) (Dales) (Applying Bankruptcy Rule 9006, 21-day mortgage payment change reporting requirement in Bankruptcy Rule 3002.1 is modified to once every six months for mortgagee with HELOC. "Under the loan documents, the interest rate on the HELOC, and therefore the Debtor's payment obligation, changes monthly . . . . [T]he Bank concedes it is obligated to give notice of this change to the Debtor, her lawyer and the chapter 13 trustee. . . . Giving monthly notice of these small changes does not materially advance the purpose of Rule 3002.1, which . . . is to permit debtors to 'cure and maintain' under § 1322(b)(5) during their bankruptcies, and avoid unhappy surprises when their plan terms come to an end. . . . [T]he borrower is ultimately responsible for the lender's collection costs. . . . Over a five year plan period, a debtor could be required to pay substantial additional collection costs to compensate her HELOC lender for giving notice of payment changes in the range of $1.00-$3.00 per month, all in the name of transparency. . . . Rule 9006(b) grants the court authority to enlarge deadlines prescribed in the rules or by court order, subject to enumerated exceptions or conditions . . . . If the drafters of the rules intended to make the twenty-one day time period impregnable, they could have included Rule 3002.1 among the rules listed in Rule 9006(b)(2) or (b)(3). They did not.").
In re Holman, No. 12-50023, 2013 WL 1100705, at *3 (Bankr. E.D. Ky. Mar. 15, 2013) (unpublished) (Wise) (Bankruptcy Rule 3002.1 requirements apply notwithstanding that mortgage creditor was granted stay relief. "It is easy to contemplate the need for the information required by Rule 3002.1 after stay relief is granted. Stay relief does not prevent a debtor from attempting to keep his home. Following stay relief, a debtor may seek to defend a foreclosure action, enter into a loan modification, propose further plan amendments, or sell the residence by private sale. Required Rule 3002.1 disclosures, such as changes in rates, late fees and penalties, will assist a debtor in any of these post-stay relief options and thus serve the Code's policy of a fresh start. Requiring continued disclosure may further benefit the debtor and chapter 13 trustee in their review of a creditor's post-foreclosure deficiency claim.").
In re Cloud, No. 09-60299, 2013 WL 441543 (Bankr. S.D. Ga. Jan. 31, 2013) (Dalis) (Plan provision for direct payments by debtor "outside the plan" did not relieve mortgagee of obligation to comply with Bankruptcy Rule 3002.1. Plan provided for debtor to pay mortgage claim directly to creditor. Phrase "outside the plan" lacks legal significance. Plan satisfied § 1322(b)(5) by providing for curing arrearage and maintaining payments. Lender was required to comply with Bankruptcy Rule 3002.1.).
In re Soto, No. 12-12373, 2013 WL 323319 (Bankr. N.D. Cal. Jan. 26, 2013) (Jaroslovsky) (Local form addendum required of mortgagees on debtors' residences was inconsistent with Rule 3002.1, which now controlled.).
In re Lopez, No. 10-30844-H3-13, 2012 WL 6760175 (Bankr. S.D. Tex. Dec. 31, 2012) (Paul) (Mortgage lender's proof of claim predated required use of Official Form for postpetition fees, expenses and charges, but claimant's failure to appear in support of its notice justified denial of requested fees. Debtor's attorney was not entitled to fees for objecting to lender's notice.).
In re Creggett, No. 10-33473-HE-13, 2012 WL 6737813 (Bankr. S.D. Tex. Dec. 28, 2012) (Paul) (Failure to provide documentation of escrow amount in notice of payment change was not sanctionable when mortgage servicer's proof of claim predated required use of Official Form B10S1.).
In re Baca, No. 13-10-10765 JA, 2012 WL 6647733, at *4 (Bankr. D.N.M. Dec. 20, 2012) (Jacobvitz) (Lender is barred from seeking postpetition fees or charges not included in the itemization attached to its Rule 3002.1(g) response to notice of final cure. "Equitable estoppel principals [sic] bar Beneficial from seeking fees or other charges in excess of the unpaid regular mortgage installment payments included in the Response that may have accrued up through the date of the filing of the Response." Whether debtors were entitled to discharge despite failure to make all postpetition mortgage payments was not ripe for determination.).
In re Weigel, 485 B.R. 327 (Bankr. E.D. Va. Dec. 6, 2012) (Mayer) (Lender not required to comply with Bankruptcy Rule 3002.1 when there were no prepetition arrearages to be cured and § 1322(b)(5) was not applicable.).
In re Thongta, 480 B.R. 317 (Bankr. E.D. Wis. Oct. 18, 2012) (Kelley) (After stay relief and withdrawal of claim, mortgage creditor was not required to comply with Rule 3002.1. Since there was no pending claim secured by debtor's residence, trustee was not required to file notice of final cure payment.).
Hollingsworth v. Option One Mortg. Corp. (In re Hollingsworth), No. 08-00244-BGC, 2012 WL 4465593 (Bankr. N.D. Ala. Sept. 25, 2012) (Cohen) (Rules 3002.1 and 3001(c) provide what secured creditor must include in proof of claim and disclosures required for postpetition fees and costs, making injunctive relief against lender unnecessary. Debtors failed to show that lender attempted to collect postpetition fees and costs during case.).
In re Wallett, No. 11-10801, 2012 WL 4062657 (Bankr. D. Vt. Sept. 14, 2012) (Brown) (Mortgage creditor was not required to file Rule 3002.1 notice with respect to nonresidential mortgage and was not entitled to attorney fees for filing unnecessary notice.).
In re Tuneberg, No. 11-80629-G3-13, 2012 WL 3744719 (Bankr. S.D. Tex. Aug. 28, 2012) (Paul) (Objection to notice of postpetition fees, expenses and charges denied without prejudice when debtors did not serve mortgagee's counsel.).
In re Adkins, 477 B.R. 71 (Bankr. N.D. Ohio Aug. 10, 2012) (Woods) (Difficulty of compliance did not excuse second mortgage creditor's compliance with Rule 3002.1.).
In re Merino, No. 9:09-bk-22282-FMD, 2012 WL 2891112, at *1 (Bankr. M.D. Fla. July 16, 2012) (Delano) (Bankruptcy Rule 3002.1 does not apply to direct payments by debtor to mortgage holder; filing of notice contemplated by Bankruptcy Rule 3002.1 did not require response when direct payment rendered the rule inapplicable. "[T]he legislative history of 3002.1 reveals that the rule was adopted to 'aid in the implementation of § 1322(b)(5), which permits a chapter 13 debtor to cure a default and maintain payments of a home mortgage over the course of the debtor's plan.' An inference may be drawn that Rule 3002.1 does not apply to claims being paid outside the plan.").
Pompa v. Wells Fargo Home Mortg., Inc. (In re Pompa), No. 11-3651, 2012 WL 2571156, at *6 (Bankr. S.D. Tex. June 29, 2012) (Isgur) (New Bankruptcy Rule 3002.1 does not supplant authority to sanction mortgage lender for failure to provide notice of postpetition fees. "[T]he text of the new provision does not exclude sanctions under § 105. It is equally possible that Rule 3002.1 was amended to clarify that relief already existed. In any event, under the confirmed plan in this case, Wells Fargo had the duty to seek its fees. There cannot be any reading of Rule 3002.1 that it would override the terms of a previously confirmed plan. Nor could a rule upset the binding effect of a confirmed chapter 13 plan." Debtor's motion alleging inappropriate charging of fees and expenses during plan administration survived motion to dismiss.).
In re Garduno, No. 11-45243-EPK, 2012 WL 2402789, at *1 (Bankr. S.D. Fla. June 26, 2012) (Kimball) (Bankruptcy Rule 3002.1 does not apply when bank's claim is not provided for under § 1322(b)(5); bank was not required to file Notice of change of payment amount, and debtor was not required to file objection. Plan listed bank as a secured creditor but stated that bank was to receive "$0.00." Bank filed Notice of payment change, and debtor filed objection. "The Bank's claim is not 'provided for under § 1322(b)(5) of the Code' within the meaning of Bankruptcy Rule 3002.1 . . . . [T]he Bank gained nothing by filing the Notice. . . . [B]ecause the above-cited rules do not apply to the Bank's claim, the filing of the Notice did not trigger a need for the Debtors to respond.").
In re Fischer, No. 11-12668-B-13, 2012 WL 8453339 (Bankr. E.D. Cal. June 26, 2012) (not for publication) (Lee) (Debtor's objection to mortgagee's notice of change in payment for escrow is sustained when escrow for taxes and insurance was not required by mortgage agreement and debtor had been paying taxes and insurance directly for years.).
In re Adams, No. 12-00553-8-RDD, 2012 WL 1570054 (Bankr. E.D.N.C. May 3, 2012) (Doub) ($50 charge not allowed for filing notice of postpetition mortgage expense required by Bankruptcy Rule 3002.1. Lender failed to show that attorney was required.).
In re Sheppard, No. 10-33959-KRH, 2012 WL 1344112, at *4 (Bankr. E.D. Va. Apr. 18, 2012) (Huennekens) (After debtors and mortgage creditor entered into agreed plan modification to provide for payment of postpetition fees and expenses, lender was not required to file, and should not have filed, notice required by Rule 3002.1(c). Supplement 2 to Official Form 10 provides that creditor must disclose amounts not previously itemized in notice filed in case or ruled on by court. Consent between debtors and bank, resulting in amended plan, was a determination by court of postpetition fees and charges. Further notice or disclosure would be duplicative, "once again creat[ing] uncertainty as to the total sums for which debtors will be liable upon emerging from bankruptcy." Supplement was not intended to be pleading and should be filed in claims register, not on court docket: "It is simply a statement that a creditor files to inform the debtor that postpetition expenses have been incurred. It is akin to 'providing an annual escrow statement.'").
In re Kraska, No. 11-63013, 2012 WL 1267993, at *2 (Bankr. N.D. Ohio Apr. 13, 2012) (Kendig) (New Bankruptcy Rule 3002.1 applies even when plan surrenders home. Although bulk of Rule was intended to address arrearage cure, after collateral liquidation, bank would be filing unsecured deficiency claim, and compliance with Rule would assist in "obtaining accurate information for the calculation of the underlying claim.").
In re Reynolds, 470 B.R. 138 (Bankr. D. Colo. Apr. 9, 2012) (Tallman) (Amended Rule 3001(c)(2)(D) puts in question whether B-Line, LLC v. Kirkland (In re Kirkland), 379 B.R. 341 (B.A.P. 10th Cir. Dec. 21, 2007) (Bohanon, Michael, Brown), continues to control claim disallowance for lack of documentation; remedies in Rule for lack of documentation do not include disallowance. Advisory Committee Note stated that failure to provide required information did not constitute ground for disallowance of claim, but instead triggered evidentiary sanction of precluding introduction of documents at subsequent hearing on claim objection under § 502(b).).
In re Carr, 468 B.R. 806, 807-09 (Bankr. E.D. Va. Mar. 19, 2012) (Mayer) (Creditor not entitled to additional attorney fee of $150 for preparation of response to Chapter 13 trustee's Notice of Final Cure Payment. "[T]he chapter 13 trustee filed his Notice of Final Cure Payment. The creditor's response to the chapter 13 trustee's notice showed that the debtor had cured the default on the creditor's mortgage and was current with respect to all post-petition mortgage payments. In fact, the creditor filed two responses. One was on the prescribed form, Form B 10 (Supplement 2), 'Notice of Postpetition Mortgage Fees, Expenses and Charges,' and filed in the claims register as a supplement to the proof of claim. The second was filed as a pleading in the court's docket and titled 'Response to Notice of Final Cure Payment'. . . . The . . . process starts with the chapter 13 trustee filing a Notice of Final Cure Payments. Rule 3002.1(f). The creditor must respond to that notice by acknowledging that it is correct, or if it is not correct, stating with particularity the amounts that remain unpaid. Rule 3002.1(g). If the debtor or the trustee contests the creditor's claim for unpaid amounts, the debtor or the trustee must file a motion to determine whether the debtor has cured the default and paid all required payments and fees. Rule 3002.1(h). . . . The purpose of Rule 3002.1 was to provide a prompt, efficient, and cost-effective means to determine whether there is a question as to the status of a debtor's home loan at the conclusion of the chapter 13 case. This was done by requiring the trustee to file an initial statement and the creditor to file a response. This response is not a pleading. It is a supplement to the creditor's proof of claim and is filed in the claims registry not on the court's docket. It is simply a statement by the creditor as to the status of the loan at the conclusion of the chapter 13 plan. This can be derived simply and quickly from the creditor's records and poses no significant burden on the creditor. This is a business function that can be done by a claims administrator in the creditor's own office. It is akin to issuing a receipt for payments received under the chapter 13 plan . . . . Its preparation is not the practice of law. . . . An attorney need not sign it. No additional pleading is required and none should be filed . . . . No additional fee is permitted to satisfy the creditor's response requirement under Rule 3002.1(g). . . . The only thing necessary is for the creditor to respond to the trustee's Notice of Final Cure, that is, complete Official Form 10 (Supplement 2), . . . and file it as a supplement to its proof of claim. . . . No fee will be permitted for preparing this statement whether the creditor is in agreement or disagreement with the trustee's notice; whether all post-petition payments have been made or there is a post-petition default; or whether there are unpaid post-petition fees.").