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On December 1, 2011, a new proof of claim (“POC”) requirement proposed by the Bankruptcy Rules Advisory Committee, and established by the U.S. Supreme Court takes effect. This new form is different from the previous POC form in several aspects. Some of the more salient changes are the following:
- Section 3b has been added to establish a uniform claim identifier to facilitate distribution and posting of payments by Chapter 13 trustees.
- Section 4 now requires that secured-claim holders disclose the annual interest rate in effect at the time a bankruptcy case is filed. Check boxes have been added to this section to further indicate whether the interest rate is fixed or variable.
- Section 7 was revised to clarify that creditors must attach documentation supporting their claim or evidencing perfection of a security interest. The form also includes language that reminds the creditor of the need to redact any documents attached to the POC.
- Section 8, the date and signature box on the POC form, was revised to include a certification that the information submitted on the form meets the requirements of Bankruptcy Rule 9011(b), which requires that the claim be “true and correct to the best of the signer’s knowledge, information and reasonable belief.” The POC signer will now have to declare, under penalty of perjury, that the information provided in the POC is correct to the best of the signer’s knowledge. The effect of this new section is that now all POCs will require a person to review the information for accuracy and sign off on that assertion of accuracy.
In addition to changes to the actual POC form, the POC changes include the creation of three new attachments required from certain mortgage creditors:
- Mortgage Attachment Form – Attachment A. This new form is now required to be completed and attached to the proof of claim secured by the debtor’s principal residence.
- Notice of Mortgage Payment Change – Supplement 1. This new form requires the holder of a secured claim on the debtor’s principal place residence to notify any changes in the amount of the mortgage payments, at least 21 days before the change, and to indicate the basis for the change, and the date when the change will take effect.
- Notice of Post-petition Mortgage Fees, Expenses, and Charges – Supplement 2. This new form requires the holder of a security interest in the debtor’s principal residence to file a notice of all post-petition fees, expenses, and charges within 180 days after they are incurred.
The new POC form is designed to prevent the filing of unsubstantiated claims. All these new forms require that the signer declare under penalty of perjury that the information provided is true and correct. The new changes are an obvious attempt to increase the oversight on creditors, especially mortgage lenders, in the wake of the several complaints on their handling of defaulted mortgages.
Craig I. Kelley, Esquire of Kelley & Fulton, P.L., represents individual and business debtors and creditors in Chapter 7, 11, 12, and 13 proceedings. He is A.V. rated by Martindale-Hubbell directory, which is the highest rating as voted on by his peers in the legal profession. He is an Adjunct Professor of Bankruptcy Law at Palm Beach State College and lectures nationally on the topics of Bankruptcy and Foreclosure. His law firm is located in West Palm Beach and he can be reached at 561-491-1200 or at email@example.com. For more information log on to www.kelleylawoffice.com.