Chapter 13 Newsletter

MEMO TO CHAPTER 13 PRACTITIONERS Date: 2/13/08 To: All Chapter 13 Attorneys From: John P. Gustafson, Standing Chapter 13 Trustee Re: Newsletter On Mortgage Negotiation, Tax Rebates, And Conduits. ► The Office of the Chapter 13 Trustee is going to attempt to facilitate negotiations between debtors and their mortgage companies by putting debtors and their attorneys in contact with designated loss mitigation representatives for their mortgage company. ► The Chapter 13 Trustee is not going to construe the recently enacted “rebates” to be “refunds” for purposes of Chapter 13 Plans that require the turnover of all or part of the debtor’s tax refunds. ► In Chapter 13 cases assigned to the Honorable Richard L. Speer, if the debtor(s) are not current with their mortgage payments, the Plan MUST provide for conduit mortgage payments. The Loss Mitigation Initiative Recently, representatives for a number of mortgage companies have represented to the Chapter 13 Trustees that they now have “loss mitigation” specialists available to deal with mortgage issues on a negotiated basis, even during a Chapter 13. From talking to both debtors and mortgage company representatives, both sides appear to have difficulty in initiating communication about the possibility of negotiated adjustments to the mortgage obligation. Our Office is taking the mortgage companies at their word, and will be working to facilitate communication between debtors and mortgage lenders. While there is presently no legal mechanism for forcing a change in the terms of a mortgage on a debtor’s primary residence that attaches to any equity, nothing prevents the parties from changing the mortgage terms by agreement. In appropriate cases, the mortgage companies say they are ready to provide some relief. While stopping, reversing or lowering interest rate adjustments in adjustable rate mortgages appears to be the area where relief is needed most, other forms of modification may also be negotiated. We have been provided with a list of loss mitigation contacts for most of the major mortgage lenders. If you have a case where you think direct negotiation with the mortgage company may help your clients, our Office will be happy to provide you with contact information. For the initial contact, it appears that the mortgage servicers are the entity to make the first evaluation. The mortgage owners/investors may need to be contacted by the servicers for option specific authorizations. We are also recommending that if your clients would like to explore “loss mitigation” negotiations with their mortgage company, the following language should be

included in your Chapter 13 Plan to provide notice that the debtors wish to explore loss mitigation alternatives to all parties, including the mortgage company: “During this Chapter 13 case, the debtor(s) will attempt to enter into loss mitigation negotiations with their mortgage lender(s). This may result in an agreed modification of the debtor(s) mortgage(s).” Any agreement that is reached should be memorialized in an “Order Approving Mortgage Modification”, with the language of the modification attached to the Order. A copy of an Order used in Tennessee is attached at the end of this newsletter as a guide. Please note, our Judges will decide what needs to be filed in our Chapter 13 cases. Chapter 13 Trustee’s Policy Re: May, 2008 Tax Rebates. It appears that tax rebates will be distributed starting in May of 2008. After examining the purpose of the legislation and consulting with the Judges and other Chapter 13 Trustees, I have decided not to interpret our usual language calling for a turnover of all or part of the debtors tax refunds as including the 2008 tax rebate. Thus, debtors will not be required to turn over their tax rebates as part of their Chapter 13 Plans. I would like to emphasize, however, that if debtors seek to suspend payments, or use tax refunds for unexpected expenses, I will be asking what the debtors did with their rebates. And if they went to the casino, or bought a big screen TV, with knowledge that they needed dental surgery, or new tires, or roof repairs, I am going to bring that fact to the Court’s attention. Similarly, if I am moving to dismiss for non-payment, and the debtor says they didn’t have the money to pay, I am going to want to know why the tax rebates were not used to catch up on the Plan. Debtors who are current, but are struggling to keep their heads above water should be encouraged to think about using their tax rebates to bring their mortgages current, their Plan payments current, or for some necessary expenditure that will have lasting benefit – like auto repairs, fixing roof problems, setting aside monies for an emergency, paying property taxes, etc. Chapter 13 Cases Assigned To Judge Speer – PUT CONDUIT LANGUAGE IN PLAN. It has been six months since Judge Speer determined that he would require conduit mortgage payments in all case where the Chapter 13 debtor was materially behind on their mortgage at the time of filing. Our Office continues to see Chapter 13 Plans filed without conduit language in cases assigned to Judge Speer where there are substantial arrearages on the mortgages. This is delaying confirmation of the Plans and requires debtor’s counsel to do extra work – preparing an Amended Plan and noticing it out to all creditors. PLEASE PUT THE CONDUIT LANGUAGE IN THE INITIAL PLAN!