New Bankruptcy Rule 3002.1
What is a motion for relief?
A motion for relief is filed by your creditor who has a secured interest in your property, such as a motor vehicle or your residence. If you don’t make your monthly payments to the trustee and you fall behind, your creditor most likely will file a motion for relief from the automatic stay. The automatic stay protects you from actions of your creditors. When the motion for relief is granted, the car creditor can repossess your vehicle and the mortgage company can start foreclosure proceedings for your house.
What does the sentence “Movant requests, upon entry of an order granting relief from stay, that it be exempted from further compliance with Fed. Rule Bankr. P. 3002.1 in the instant bankruptcy case.” in the motion for relief mean?
On December 1, 2011 several amended and new Federal Rules of Bankruptcy Procedure became effective. One is Rule 3002.1 which is listed further below. The language above that bankruptcy attorneys will see more often, is more a request for a comfort order. After relief is granted, the secured creditor is not obligated to comply with Rule 3002.1, the property is no longer property of the estate and there is no secured claim anymore.
Rule 3002.1. Notice Relating to Claims Secured by Security Interest in the Debtor’s
(a) IN GENERAL. This rule applies in a chapter 13 case to claims that are (1) secured by a
security interest in the debtor’s principal residence, and (2) provided for under § 1322(b)(5)
of the Code in the debtor’s plan.
(b) NOTICE OF PAYMENT CHANGES. The holder of the claim shall file and serve on the
debtor, debtor’s counsel, and the trustee a notice of any change in the payment amount,
including any change that results from an interest rate or escrow account adjustment, no later
than 21 days before a payment in the new amount is due.
(c) NOTICE OF FEES, EXPENSES, AND CHARGES. The holder of the claim shall file and
serve on the debtor, debtor’s counsel, and the trustee 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. The notice shall be served within 180 days after the date on which the
fees, expenses, or charges are incurred.
(d) FORM AND CONTENT. A notice filed and served under subdivision (b) or (c) of this
rule shall be prepared as prescribed by the appropriate Official Form
,and filed as a
supplement to the holder’s proof of claim. The notice is not subject to Rule 3001(f).
(e) DETERMINATION OF FEES, EXPENSES, OR CHARGES. On motion of the debtor or
trustee filed within one year after service of a notice under subdivision (c) of this rule, the
court shall, after notice and hearing, determine whether payment of any claimed fee, expense,
or charge is 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.
(f) NOTICE OF FINAL CURE PAYMENT. Within 30 days after the debtor completes all
payments under the plan, the trustee shall file and serve on the holder of the claim, the
debtor, and debtor’s counsel a notice stating that the debtor has paid in full the amount
required to cure any default on the claim. The notice shall also inform the holder of its
obligation to file and serve a response under subdivision (g). If the debtor contends that final
cure payment has been made and all plan payments have been completed, and the trustee
does not timely file and serve the notice required by this subdivision, the debtor may file and
serve the notice.
(g) RESPONSE TO NOTICE OF FINAL CURE PAYMENT. Within 21 days after service of
the notice under subdivision (f) of this rule, the holder shall file and serve on the debtor,
debtor’s counsel, and the trustee a statement indicating (1) whether it agrees that the debtor
has paid in full the amount required to cure the default on the claim, and (2) whether the
debtor is otherwise current on all payments consistent with § 1322(b)(5) of the Code. Thestatement shall itemize the required cure or postpetition amounts, if any, that the holder
contends remain unpaid as of the date of the statement. The statement shall be filed as a
supplement to the holder’s proof of claim and is not subject to Rule 3001(f).
(h) DETERMINATION OF FINAL CURE AND PAYMENT. On motion of the debtor or
trustee filed within 21 days after service of the statement under subdivision (g) of this rule,
the court shall, after notice and hearing, determine whether the debtor has cured the default
and paid all required postpetition amounts.
(i) FAILURE TO NOTIFY. If the holder of a claim fails to provide any information as
required by subdivision (b), (c), or (g) of this rule, the court may, after notice and hearing,
take either or both of the following actions:
(1) preclude the holder from presenting the omitted information, in any form, as evidence
in any contested matter or adversary proceeding in the case, unless the court determines
that the failure was substantially justified or is harmless; or
(2) award other appropriate relief, including reasonable expenses and attorney’s fees
caused by the failure