Mortgage Servicing Fraud
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By Jamie M. Nagle, Esq. 

Effective December 1, 2011, Federal Rule of Bankruptcy Procedure (“F.R.B.P.”) 3001(c) was amended in an effort to clarify and streamline the supporting information required to be attached to a Proof of Claim filed with the bankruptcy court.  The required information will vary depending on the type of claim.

Pursuant to F.R.B.P. 3001(c)(1), when a claim is based on a writing, the original or a duplicate of the writing must be filed with the Proof of Claim.  If the original has been lost or destroyed, a statement describing the circumstances of the loss or destruction must be filed with the Proof of Claim. 

The amendment added section 3001(c)(2), which sets forth several additional requirements in cases where the debtor is an individual.  F.R.B.P. 3001(c)(2)(A) requires that a statement itemizing interest, fees, expenses or other pre-bankruptcy charges that are owed in addition to the principal balance be attached to the Proof of Claim.  This requirement applies whether or not the claim is secured or unsecured.

F.R.B.P. 3001(c)(2)(B) provides an additional requirement for claims where a security interest is asserted.  The Proof of Claim must include a statement setting forth the amount necessary to cure any pre-bankruptcy default.

F.R.B.P. 3001(c)(2)(C) addresses the situation where a claimant asserts a security interest against the debtor’s principal residence.  Official Form B10 Attachment A, the Mortgage Proof of Claim Attachment form, must be completed and attached to the Proof of Claim.  This is a new form that can be found on any bankruptcy court website.  It is a very detailed form that itemizes the payoff and pre-petition arrears of the loan.  This section goes on to say that if an escrow account has been established in connection with the claim, the claimant must attach an escrow account statement prepared as of the date the bankruptcy was filed.  This is only a requirement if the real estate is the debtor’s residence and does not apply to rental property.

Should a claimant fail to provide any of the information required under the amended rule, F.R.B.P. 3001(c)(2)(D) states that the bankruptcy court may preclude the claimant from introducing the omitted information as evidence in a later hearing challenging the Proof of Claim, award expenses and attorney fees caused by the omission, or both depending on the egregiousness of the omission.  It is also within the bankruptcy court’s discretion to determine whether the omission was substantially justified or harmless and allow the omitted information into evidence.

Although these requirements may seem somewhat burdensome, the goal is to ensure uniformity and accuracy, which is in the best interest of all parties involved.  Please feel free to contact me if you have any questions or concerns regarding these new requirements.   

Jamie is an associate in the Bankruptcy Group located in the Brooklyn Heights office of Weltman, Weinberg & Reis Co., LPA. She can be reached at 216.739.5121 and

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