Monday, November 7, 2011

Proof Of Claim: What To Look For

So, you just filed a Chapter 13 bankruptcy. You filed you Petition, your Plan, and attended the Meeting of Creditors. At the Meeting of Creditors, no creditors showed up. How about that. You checked the mail, and just received a Statement Of Claim form, that is similar to the one received from the Clerks office earlier, but with this difference; now the form is filled in with information from a creditor.

What should you do with it? Is the information correct? Well, hopefully you are receiving these forms after December 1, 2011, as new rules governing these forms goes into effect on that date. Here is a brief breakdown of what you should be receiving after that date:
      1. If the claim is based on a written document, there should be a copy of that document inclosed with the claim form. If the creditor no longer has the form, because it was lost or destroyed, there should be some sort of explanation included that explains what happened to the document.
      2. If the claim includes interest, fees, expenses and other charges incurred before the petition was filed, the creditor should include an itemized statement.
      3. If the statement includes a security interest, such as a mortgage or vehicle loan, there should be a statement as to the amount necessary to cure any default, as of the date of the petition.
      4. If the claim is on your principal residence, there will be a form attached for this claim. The escrow balance should be disclosed, if any, as of the date of filing the petition.

So, what if the creditor decided they just didn't want to go to the trouble to file all this stuff. Now what? Well, the new language actually puts some enforcement provisions in place. The Court may do 1 of 2 things. First, it may prevent the creditor from presenting the information later; the creditor has the burden to show the failure to include the documents and information “was substantially justified or harmless”. Or the court can award such other relief as it sees fit, including reasonable attorney fees and reasonable expenses.

1 comment:

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