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Consequences for Mortgage Lenders Failure to Comply With Bankruptcy Rules

On Behalf of | Nov 17, 2016 | Bankruptcy |

Federal Bankruptcy Rule 3002.1 sets forth several obligations that pertain to secured creditors, including mortgage lenders. First, it requires them to notify the debtor and the debtor’s attorney if the monthly mortgage payment is going to increase. The notice must be sent to the debtor and the debtor’s attorney at least 21 days before the payment is due to change. Second, if the lender has incurred any expenses after it filed its claim, but before the case is completed, it must notify the debtor and the debtor’s attorney of the expense at least 180 days after it incurred the expense. Third, within 21 days after the Trustee files it notice of Final Cure Payment, it must file a response indicating whether it agrees with the Notice.

I have filed objections to notices of increase in mortgage payments where the notice was given less than the 21 days prior to the expected increase and the court ruled that the notice was not valid since it did not comply with the law. In the recent case of In re Salazar, 2016 WL 6068819 (Bankr. S.D. Tex. 10.14.16), the court disallowed the lender’s claim for attorney’s fees and expenses because it failed to notify the debtor of the expenses within the 180 days that the expenses were incurred. Regarding the third item, if the Trustee’s Final Cure Notice indicates that the debtor is current on his mortgage payments and the lender does not timely respond, I maintain that it is precluded from later claiming the debtor was behind on his post-petition payments.

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