CURRENT TEXAS ISSUES IN CLAIM OBJECTIONS. Presented by: Judge Letitia Paul Judge Stacy Jernigan

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1 CURRENT TEXAS ISSUES IN CLAIM OBJECTIONS Presented by: Judge Letitia Paul Judge Stacy Jernigan State Bar of Texas 10th ANNIVERSARY BENCH/BAR CONFERENCE AND CELEBRATION 2013 June 5-7, 2013 San Antonio, Texas

2 Current Issues in Claim Objections State Bar of Texas Bankruptcy Law Section 10th Anniversary Bench/Bar Conference and Celebration 2013 Hon. Letitia Z. Paul United States Bankruptcy Judge for the Southern District of Texas (Houston) Hon. Stacey G.C. Jernigan United States Bankruptcy Judge for the Northern District of Texas (Dallas) TABLE OF CONTENTS I. INTRODUCTION...1 II. PREPARATION OF PROOFS OF CLAIM GENERALLY: THE BASICS...1 A. Applicable Bankruptcy Code Sections and National Bankruptcy Rules Applicable Bankruptcy Code Sections Applicable National Bankruptcy Rules Applicable Local Bankruptcy Rules in the Northern, Western, Southern, and Eastern Districts of Texas...8 a. Northern District of Texas...8 b. Western District of Texas...8 c. Southern District of Texas...9 d. Eastern District of Texas...10 B. Noteworthy Case Law Involving Proofs of Claim Timing Issues Class Proofs of Claim Prima Facie Validity Jury Trial Issues Violations of the Automatic Stay Non-Dischargeability Informal Proofs of Claim Standing...14 III. SPECIAL CONSIDERATIONS FOR PROOFS OF CLAIM FILED BY CLAIMANTS WITH SECURITY INTERESTS IN A DEBTOR'S PRINCIPAL RESIDENCE...14 A. New National Bankruptcy Rule B. Applicable Local Bankruptcy Rules in the Northern, Western, Southern, and Eastern Districts of Texas Northern District of Texas Western District of Texas Southern District of Texas Eastern District of Texas...19 C. Relevant Case Law Addressing Mortgage Claimants' Proofs of Claim Jones v. Wells Fargo Home Mortgage (In re Jones), 366 B.R. 584 (Bankr. E.D. La. 2007) ("Jones I")...19 a. Subsequent History Following Decision in Jones I Other Cases Involving Mortgage Lenders' Proofs of Claim...21 IV. CLAIM OBJECTIONS...23

3 A. Applicable Bankruptcy Code Section and National Rule Applicable Bankruptcy Code Section Applicable National Bankruptcy Rule Applicable Local Bankruptcy Rules in the Northern, Western, Southern, and Eastern Districts of Texas...28 a. Northern District of Texas...28 b. Western District of Texas...31 c. Southern District of Texas...31 d. Eastern District of Texas...34 B. Noteworthy Case Law Involving Claim Objections...41 V. ETHICAL CONSIDERATIONS WHEN OBJECTING TO PROOFS OF CLAIM...43 A. Questions to Keep in Mind B. Recent Case Law on Ethical Considerations When Objecting to Proofs of Claim...43 VI. ADDENDUM

4 I. INTRODUCTION Proofs of Claim and Claim Objections may seem like fairly mundane topics. However, there have been developments at the national level and in the Texas Bankruptcy Courts in recent times that should serve as reminders to practitioners that: (a) the preparation of a proof of claim should be undertaken with care and thoughtfulness, in accordance with Bankruptcy Code Section 501, National Bankruptcy Rules , and applicable Local Bankruptcy Rules; (b) certain types of proofs of claim have special requirements (secured claims on a debtor s principal residence, see National Bankruptcy Rule and certain Local Bankruptcy Rules); and (c) claim objections should be prepared in accordance with Bankruptcy Code Section 502, National Bankruptcy Rule 3007 and Local Bankruptcy Rules. II. PREPARATION OF PROOFS OF CLAIM GENERALLY: THE BASICS A. Applicable Bankruptcy Code Sections and National Bankruptcy Rules 1. Applicable Bankruptcy Code Sections 501. Filing of proofs of claims or interests (a) A creditor or an indenture trustee may file a proof of claim. An equity security holder may file a proof of interest. (b) If a creditor does not timely file a proof of such creditor's claim, an entity that is liable to such creditor with the debtor, or that has secured such creditor, may file a proof of such claim. (c) If a creditor does not timely file a proof of such creditor's claim, the debtor or the trustee may file a proof of such claim. (d) A claim of a kind specified in section 502(e)(2), 502(f), 502(g), 502(h) or 502(i) of this title may be filed under subsection (a), (b), or (c) of this section the same as if such claim were a claim against the debtor and had arisen before the date of the filing of the petition. (e) A claim arising from the liability of a debtor for fuel use tax assessed consistent with the requirements of section of title 49 may be filed by the base jurisdiction designated pursuant to the International Fuel Tax Agreement (as defined in section of title 49) and, if so filed, shall be allowed as a single claim. -1-

5 2. Applicable National Bankruptcy Rules Rule Proof of Claim (a) Form and Content. A proof of claim is a written statement setting forth a creditor's claim. A proof of claim shall conform substantially to the appropriate Official Form. (b) Who May Execute. A proof of claim shall be executed by the creditor or the creditor's authorized agent except as provided in Rules 3004 and (c) Supporting Information. (1) Claim Based on a Writing. Except for a claim governed by paragraph (3) of this subdivision, when a claim, or an interest in property of the debtor securing the claim, is based on a writing, a copy of the writing shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim. (2) Additional Requirements in an Individual Debtor Case: Sanctions for Failure to Comply. In a case in which the debtor is an individual: (A) If, in addition to its principal amount, a claim includes interest, fees, expenses, or other charges incurred before the petition was filed, an itemized statement of the interest, fees, expenses, or charges shall be filed with the proof of claim. (B) If a security interest is claimed in the debtor's property, a statement of the amount necessary to cure any default as of the date of the petition shall be filed with the proof of claim. (C) If a security interest is claimed in property that is the debtor's principal residence, the attachment prescribed by the appropriate Official Form shall be filed with the proof of claim. If an escrow account has been established in connection with the claim, an escrow account statement prepared as of the date the petition was filed and in a form consistent with applicable nonbankruptcy law shall be filed with the attachment to the proof of claim. (D) If the holder of a claim fails to provide any information required by this subdivision (c), the court may, after notice and hearing, take either or both of the following actions: (i) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding -2-

6 in the case, unless the court determines that the failure was substantially justified or is harmless; or (ii) award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure. (3) Claim Based on an Open-End or Revolving Consumer Credit Agreement. (A) When a claim is based on an open-end or revolving consumer credit agreement--except one for which a security interest is claimed in the debtor's real property--a statement shall be filed with the proof of claim, including all of the following information that applies to the account: purchased the account; (i) the name of the entity from whom the creditor (ii) the name of the entity to whom the debt was owed at the time of an account holder's last transaction on the account; and loss. (iii) (iv) (v) the date of an account holder's last transaction; the date of the last payment on the account; and the date on which the account was charged to profit (B) On written request by a party in interest, the holder of a claim based on an open-end or revolving consumer credit agreement shall, within 30 days after the request is sent, provide the requesting party a copy of the writing specified in paragraph (1) of this subdivision. (d) Evidence of Perfection of Security Interest. If a security interest in property of the debtor is claimed, the proof of claim shall be accompanied by evidence that the security interest has been perfected. (e) Transferred claim. (1) Transfer of Claim Other Than for Security Before Proof Filed. If a claim has been transferred other than for security before proof of the claim has been filed, the proof of claim may be filed only by the transferee or an indenture trustee. (2) Transfer of Claim Other Than for Security After Proof Filed. If a claim other than one based on a publicly traded note, bond, or debenture has been transferred other than for security after the proof of claim has been filed, evidence of the -3-

7 transfer shall be filed by the transferee. The clerk shall immediately notify the alleged transferor by mail of the filing of the evidence of transfer and that objection thereto, if any, must be filed within 21 days of the mailing of the notice or within any additional time allowed by the court. If the alleged transferor files a timely objection and the court finds, after notice and a hearing, that the claim has been transferred other than for security, it shall enter an order substituting the transferee for the transferor. If a timely objection is not filed by the alleged transferor, the transferee shall be substituted for the transferor. (3) Transfer of Claim for Security Before Proof Filed. If a claim other than one based on a publicly traded note, bond, or debenture has been transferred for security before proof of the claim has been filed, the transferor or transferee or both may file a proof of claim for the full amount. The proof shall be supported by a statement setting forth the terms of the transfer. If either the transferor or the transferee files a proof of claim, the clerk shall immediately notify the other by mail of the right to join in the filed claim. If both transferor and transferee file proofs of the same claim, the proofs shall be consolidated. If the transferor or transferee does not file an agreement regarding its relative rights respecting voting of the claim, payment of dividends thereon, or participation in the administration of the estate, on motion by a party in interest and after notice and a hearing, the court shall enter such orders respecting these matters as may be appropriate. (4) Transfer of Claim for Security After Proof Filed. If a claim other than one based on a publicly traded note, bond, or debenture has been transferred for security after the proof of claim has been filed, evidence of the terms of the transfer shall be filed by the transferee. The clerk shall immediately notify the alleged transferor by mail of the filing of the evidence of transfer and that objection thereto, if any, must be filed within 21 days of the mailing of the notice or within any additional time allowed by the court. If a timely objection is filed by the alleged transferor, the court, after notice and a hearing, shall determine whether the claim has been transferred for security. If the transferor or transferee does not file an agreement regarding its relative rights respecting voting of the claim, payment of dividends thereon, or participation in the administration of the estate, on motion by a party in interest and after notice and a hearing, the court shall enter such orders respecting these matters as may be appropriate. (5) Service of Objection or Motion; Notice of Hearing. A copy of an objection filed pursuant to paragraph (2) or (4) or a motion filed pursuant to paragraph (3) or (4) of this subdivision together with a notice of a hearing shall be mailed or otherwise delivered to the transferor or transferee, whichever is appropriate, at least 30 days prior to the hearing. (f) Evidentiary effect. A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim. -4-

8 (g) To the extent not inconsistent with the United States Warehouse Act or applicable State law, a warehouse receipt, scale ticket, or similar document of the type routinely issued as evidence of title by a grain storage facility, as defined in section 557 of title 11, shall constitute prima facie evidence of the validity and amount of a claim of ownership of a quantity of grain. Rule Filing Proof of Claim or Interest (a) Necessity for Filing. An unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and (b) Place of Filing. A proof of claim or interest shall be filed in accordance with Rule (c) Time for Filing. In a chapter 7 liquidation, chapter 12 family farmer's debt adjustment, or chapter 13 individual's debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a) of the Code, except as follows: (1) A proof of claim filed by a governmental unit, other than for a claim resulting from a tax return filed under 1308, is timely filed if it is filed not later than 180 days after the date of the order for relief. A proof of claim filed by a governmental unit for a claim resulting from a tax return filed under 1308 is timely filed if it is filed no later than 180 days after the date of the order for relief or 60 days after the date of the filing of the tax return. The court may, for cause, enlarge the time for a governmental unit to file a proof of claim only upon motion of the governmental unit made before expiration of the period for filing a timely proof of claim. (2) In the interest of justice and if it will not unduly delay the administration of the case, the court may extend the time for filing a proof of claim by an infant or incompetent person or the representative of either. (3) An unsecured claim which arises in favor of an entity or becomes allowable as a result of a judgment may be filed within 30 days after the judgment becomes final if the judgment is for the recovery of money or property from that entity or denies or avoids the entity's interest in property. If the judgment imposes a liability which is not satisfied, or a duty which is not performed within such period or such further time as the court may permit, the claim shall not be allowed. (4) A claim arising from the rejection of an executory contract or unexpired lease of the debtor may be filed within such time as the court may direct. (5) If notice of insufficient assets to pay a dividend was given to -5-

9 creditors under Rule 2002(e), and subsequently the trustee notifies the court that payment of a dividend appears possible, the clerk shall give at least 90 days' notice by mail to creditors of that fact and of the date by which proofs of claim must be filed. (6) If notice of the time to file a proof of claim has been mailed to a creditor at a foreign address, on motion filed by the creditor before or after the expiration of the time, the court may extend the time by not more than 60 days if the court finds that the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim. Rule Filing Proof of Claim or Equity Security Interest in Chapter 9 Municipality or Chapter 11 Reorganization Cases (a) (b) Applicability of Rule. This rule applies in chapter 9 and 11 cases. Schedule of Liabilities and List of Equity Security Holders. (1) Schedule of Liabilities. The schedule of liabilities filed pursuant to 521(1) of the Code shall constitute prima facie evidence of the validity and amount of the claims of creditors, unless they are scheduled as disputed, contingent, or unliquidated. It shall not be necessary for a creditor or equity security holder to file a proof of claim or interest except as provided in subdivision (c)(2) of this rule. (2) List of Equity Security Holders. The list of equity security holders filed pursuant to Rule 1007(a)(3) shall constitute prima facie evidence of the validity and amount of the equity security interests and it shall not be necessary for the holders of such interests to file a proof of interest. (c) Filing of Proof of Claim. (1) Who may file. Any creditor or indenture trustee may file a proof of claim within the time prescribed by subdivision (c)(3) of this rule. (2) Who Must File. Any creditor or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution. (3) Time for Filing. The court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed. Notwithstanding the expiration of such time, a proof of claim may be filed to the extent and under the conditions stated in Rule 3002(c)(2), (c)(3), (c)(4), and (c)(6). -6-

10 (4) Effect of Filing Claim or Interest. A proof of claim or interest executed and filed in accordance with this subdivision shall supersede any scheduling of that claim or interest pursuant to 521(a)(1) of the Code. (5) Filing by Indenture Trustee. An indenture trustee may file a claim on behalf of all known or unknown holders of securities issued pursuant to the trust instrument under which it is trustee. (d) Proof of Right to Record Status. For the purposes of Rules 3017, 3018 and 3021 and for receiving notices, an entity who is not the record holder of a security may file a statement setting forth facts which entitle that entity to be treated as the record holder. An objection to the statement may be filed by any party in interest. Rule Filing of Claims by Debtor or Trustee If a creditor does not timely file a proof of claim under Rule 3002(c) or 3003(c), the debtor or trustee may file a proof of the claim within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c) or 3003(c), whichever is applicable. The clerk shall forthwith give notice of the filing to the creditor, the debtor and the trustee. Rule Filing of Claim, Acceptance, or Rejection By Guarantor, Surety, Indorser, or Other Codebtor (a) Filing of Claim. If a creditor does not timely file a proof of claim under Rule 3002(c) or 3003(c), any entity that is or may be liable with the debtor to that creditor, or who has secured that creditor, may file a proof of the claim within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c) or Rule 3003(c) whichever is applicable. No distribution shall be made on the claim except on satisfactory proof that the original debt will be diminished by the amount of distribution. (b) Filing of Acceptance or Rejection; Substitution of Creditor. An entity which has filed a claim pursuant to the first sentence of subdivision (a) of this rule may file an acceptance or rejection of a plan in the name of the creditor, if known, or if unknown, in the entity's own name but if the creditor files a proof of claim within the time permitted by Rule 3003(c) or files a notice prior to confirmation of a plan of the creditor's intention to act in the creditor's own behalf, the creditor shall be substituted for the obligor with respect to that claim. -7-

11 3. Applicable Local Bankruptcy Rules in the Northern, Western, Southern, and Eastern Districts of Texas a. Northern District of Texas L.B.R Filing Proofs of Claim or Interest in a Chapter 9 or 11 Case. In a chapter 9 or 11 case, where no bar date has otherwise been specifically set, an unsecured creditor or equity security holder whose claim or interest is not scheduled or is scheduled as disputed, contingent, or unliquidated, has a proof of claim timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors pursuant to 11 U.S.C. 341, except that a proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. b. Western District of Texas L. Rule FILING PROOF OF CLAIM OR INTEREST. (a) Service of Claim. A copy of every proof of claim or interest in all cases shall be served with any attachments on the debtor' s attorney (or on the debtor, if the debtor is pro se) and any trustee appointed in the case. (b) Secured Proofs of Claim. A secured creditor (or the debtor) in Chapter 12 and Chapter 13 must file a proof of claim or interest for the claim or interest to be allowed. Such proof of claim must be filed within the time frame set forth in FRBP 3002(c). L. Rule TIME FOR FILING PROOF OF CLAIM OR EQUITY SECURITY INTEREST IN CHAPTER 9 MUNICIPALITY OR CHAPTER 11 REORGANIZATION CASE; CLAIMS PROCEDURE FOR ADMINISTRATIVE CLAIMS. (a) Bar Date for Proof of Claim or Interest in Notice of First Meeting Proofs of claim or interests in Chapter 11 cases shall be filed by the date established in the Notice of the Meeting of Creditors pursuant to 11 U.S.C. 341, unless the Court, upon motion and after notice and an opportunity for hearing, orders otherwise. (b) Bar Date for Administrative Claims -8-

12 The Court, after notice and an opportunity for hearing, may establish a bar date for filing an application for allowance and payment of an administrative claim, either on its own motion or on motion of a party in interest, filed pursuant to L. Rules 9013 and c. Southern District of Texas Local Rule PROOFS OF CLAIM ON HOME MORTGAGES. [THIS RULE IS EFFECTIVE FOR CASES FILED ON OR AFTER APRIL 1, 2010]. (a) A proof of claim in a chapter 13 bankruptcy case that asserts a claim secured by a mortgage or deed of trust on a home owned by a chapter 13 debtor must contain a Loan History Form, in a form approved by the Court. This Rule does not apply to a claim (i) that is filed by a person that owns, holds or services four or fewer loans secured by a home; (ii) that is filed by a property owners' association; (iii) that is filed by a governmental unit for ad valorem taxes; or (iv) for which no arrearage is asserted. Persons who are excepted from this Rule on the basis that the person owns, holds, or services four or fewer loans secured by a home must attach a complete, legible and self-explanatory history form reflecting amounts charged against the debtor and paid by the debtor. (b) The Court will approve Loan History Forms and publish them on the Court s website, in spreadsheet form with all formulae. (c) Any person may request the approval of an additional form by submitting a request for approval, with a copy of the proposed form, to the Clerk of the Court. The Clerk will present the request for approval to the Court not later than the Court s next regularly scheduled meeting. In determining whether to approve a proposed form, the Court will consider whether (a) the form is readily understandable; (b) the form contains information that is substantially equivalent to the information contained in the Loan History Form published on the Court s website; and (c) the form sets forth loan data that is substantially equivalent to the loan data contained in the Loan History Form published on the Court s website. Local Rule DEADLINE FOR FILING PROOFS OF CLAIM AND PROOFS OF INTEREST IN CHAPTER 9 AND CHAPTER 11 CASES. (a) In chapter 9 and chapter 11 cases, unless otherwise ordered by the court or governed by BLR (b), proofs of claim and proofs of interest must be filed within 90 days after the first date set for the meeting of creditors under section 341(a), except that a proof of claim filed by a governmental unit must be filed within 180 days after the order for relief. (b) BLR (a) does not apply to chapter 11 cases that (1) are ordered -9-

13 treated as complex cases, or (2) transferred from another judicial district. d. Eastern District of Texas Local Rule of Bankruptcy Procedure FILING PROOF OF CLAIM OR INTEREST. (a) Redaction of Personal Identifiers. The requirements of LBR 9013(d) regarding the redaction of personal identifiers applies to proofs of claim, and attachments thereto, filed with the Court. (b) Service. A copy of a proof of claim or interest, with attachments, must be served on the debtor, evidenced by a certificate of service filed with the Court. Service upon the debtor's counsel shall be accomplished by electronic means through the transmission facilities of the Court. Local Rule of Bankruptcy Procedure FILING OF PROOF OF CLAIM OR EQUITY SECURITY INTEREST IN CHAPTER 9 OR CHAPTER 11 REORGANIZATION CASES. (a) Time for Filing. A proof of claim is timely filed in a Chapter 9 case if it is filed not later than 120 days after the entry of the order for relief, or is timely filed in a Chapter 11 case if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a) of the Code, except as follows: 1. A proof of claim by a governmental unit is timely filed if it is filed not later than180 days after the date of the order for relief; or 2. The Court may set a different bar date for a creditor or creditors. Notice of a different bar date for all creditors must comply with Fed. R. Bankr. P (b) Bar Date Notice. 1. The Clerk is authorized and directed to stamp the Court s signature and notify creditors of the Chapter 11 bar dates set forth in subsection (a) of this Rule. 2. If the Court orders a different bar date for filing proofs of claim or interest, then the order will conspicuously reflect that a new date has been set and that the new date differs from the deadline established in subsection (a) of this Rule. -10-

14 B. Noteworthy Case Law Involving Proofs of Claim 1. Timing Issues Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., P'ship, 507 U.S. 380 (1993) The Court held that [t]he excusable neglect standard of Rule 9006(b)(1) governs late filings of proofs of claim in Chapter 11 cases, but not in Chapter 7 cases due to the fact that Rule 3002(c) was excluded from the operation of the excusable neglect standard Specifically, the time-computation and time-extension provision of Rule are generally applicable to any time requirement found elsewhere in the rules unless expressly excepted. Subsections (b)(2) and (b)(3) of Rule 9006 enumerate those time requirements excluded from the operation of the excusable neglect standard. One of the time requirements listed as excepted in Rule 9006(b)(3) is that governing the filing of proofs of claim in Chapter 7 cases. Specifically, such filings are governed exclusively by Rule 3002(c). By contrast, Rule 9006(b) does not make a similar exception for Rule 3003(c), which... establishes the time requirements for proofs of claim in Chapter 11 cases. Accordingly, Rule 9006(b)(1) must be construed to govern the permissibility of late filings in Chapter 11 bankruptcies. Finally, determination of whether neglect is excusable, warranting allowing of late filing of claim, is at bottom an equitable one, taking account of all relevant circumstances surrounding party's omission; these include danger of prejudice to debtor, length of delay and its potential impact on judicial proceedings, reason for delay, including whether it was within reasonable control of movant, and whether movant acted in good faith). In re Hogan, 346 B.R. 715 (Bankr. N.D. Tex. 2006) (J. Jernigan) Court held that secured creditors had to timely file proofs of claim in order to receive payments under debtors' confirmed Chapter 13 plans, and where they failed to do so, court had no discretion to allow their late-filed claims over trustee's objection to enable them to receive distributions under plans, even if they had presented some evidence of excusable neglect under Rule 9006(b) due to fact that Rule 3002(c) (which governs the filing of claims in a chapter 13 case) is excluded from the operation of the excusable neglect standard. Court additionally noted, however, that it appeared that a debtor or -11-

15 trustee may come in, pursuant to Rule 9006(b), and ask for permission to file a late filed proof of claim on the creditor's behalf in a Chapter 13 case, pursuant to Rule 3004, if the debtor or trustee can show some sort of excusable neglect for missing the Rule 3004 deadline for debtors and trustees. United States v. Kolstad (In re Kolstad), 928 F.2d 171 (5th Cir. 1991) IRS sought to amend a proof of claim filed on its behalf by the debtor, and the debtor contended that the IRS lost its right to amend when the bar date passed. The Fifth Circuit ultimately allowed the amendment and found that "[W]hile bar dates establish the universe of participants in the debtor's case, they have little correlation to the final relative amounts in which creditors will share in any distribution. The goal of claims adjudication, on the other hand, is to assure that each creditor which is part of that universe ultimately participates in the voting and distribution from the estate in the proper amount determined by the priority and nature of its claim and bankruptcy's bargaining process." However, the Fifth Circuit also noted that courts that authorize amendments must ensure that corrections or adjustments do not set forth wholly new grounds of liability. 2. Class Proofs of Claim Teta v. Chow (In re TWL Corp.), No , 2013 WL (5th Cir. March 29, 2013) Former employee of a Chapter 11 debtor sought class certification for the employee's allegation that the debtor violated the Worker Adjustment and Retraining Notification (WARN) Act by failing to give its employees 60 days' notice of their termination. In denying class certification, the bankruptcy court held that the numerosity and superiority requirements were not met, holding that class certification would negate the bar date by allowing those class members who had missed the deadline to interpose claims without establishing excusable neglect, and that the employee had not established that a class action would be a superior method of adjudication. The Fifth Circuit held that there is no definite standard of what size class satisfies the numerosity requirement (that "the class is so numerous that joinder of all members is impracticable," under Fed. R. Civ. P. 23(a)(1)). However, because the bankruptcy court did not delineate all the factors it considered, the Fifth Circuit could not affirm on that ground. Finally, as to the superiority requirement (that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class -12-

16 action is superior to other available methods for fairly and efficiently adjudicating the controversy," under Fed. R. Civ. P. 23(b)(3)), the Bankruptcy Court could consider bankruptcy-related factors. Ultimately the Fifth Circuit remanded to the bankruptcy court for entry of findings and conclusions consistent with the holdings summarized above. 3. Prima Facie Validity Wilson v. Huffman (In re Missionary Baptist Found. of Am., Inc.), 712 F.2d 206 (5th Cir. 1983) A claim filed pursuant to 501 enjoys prima facie validity which may be overcome by a trustee's presentation of evidence Jacobsen v. Sramek (In re Jacobsen), 362 Fed. Appx. 413 (5th Cir. 2010) Claimant filed a proof of claim, with documents attached describing the progress of litigation against the debtor and REJ Properties, Inc. While the supporting documents attached to the proof of claim reference REJ Properties, Inc. rather than debtor, the documents clearly referred to a pending real estate fraud lawsuit against the debtor and REJ Properties, Inc. The proof of claim was executed and filed in accordance with the Bankruptcy Rules and Official Form 10. As such, the court found that the proof of claim constituted prima facie evidence of the validity and amount of the claim. While, the debtor argued that the proof of claim stated a claim against REJ, not the debtor himself, the court disagreed and held that the debtor failed to rebut the prima facie validity of the proof of claim, and, thus, the claim was allowed. In re Armistead, 2012 WL (Bankr. S.D. Tex. 2012) (J. Isgur) Noncompliance with Local Rule (requiring use of the loan history form) did not affect the prima facie validity of a proof of claim executed and filed in accordance with the national rules, but Bankruptcy Rule 3001 (which requires a different form of attachment to the proof of claim) did not preempt Local Rule , because the local form required substantial information not included on the national form. 4. Jury Trial Issues Langenkamp v. C.A. Culp, 498 U.S. 42 (1990) & Granfinanciera v. Nordberg (In re Granfinanciera, S.A.), 492 U.S. 33 (1989) In the context of avoidance action litigation, the court held that when a creditor files a claim against a bankruptcy estate, it loses its Seventh Amendment right to jury trial and submits itself to the equitable jurisdiction of the bankruptcy court 5. Violations of the Automatic Stay Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008) -13-

17 While the debtor contended that loan servicer willfully violated the automatic stay by filing a proof of claim which asserted a right to increased mortgage payments, the Fifth Circuit held that the filing of a proof of claim does not violate the automatic stay. 6. Non-Dischargeability IRS v. Taylor (In re Taylor), 132 F.3d 256 (5th Cir. 1998) IRS had option to not file proof of claim and remain outside of the bankruptcy case, since IRS s claim was non-dischargeable 7. Informal Proofs of Claim Garza v. JD Foods Inc. (In re Garza), 222 Fed. Appx. 350 (5th Cir. 2007) Creditor filed a motion for relief from stay, to allow litigation to liquidate its claim. The stay was lifted, and a judgment was entered by the state court. However, the creditor did not timely file a proof of claim, but asserted its 362 motion should be considered by the court as an informal proof of claim and to permit amendment. The debtor objected, arguing that section 502(b)(9) abrogated the informal proof of claim doctrine. The court held that section 502(b)(9) did not abrogate the informal proof of claim doctrine and allowed the creditor to amend what it held to be an informal proof of claim. 8. Standing In re Thalmann, 469 B.R. 677 (Bankr. S.D. Tex. 2012) (J. Bohm) State court turnover receiver lacked standing to file a proof of claim on behalf of a judgment creditor. The court held that a receiver does not act as an agent of creditors or any other parties, but rather acts as an officer of the court. III. SPECIAL CONSIDERATIONS FOR PROOFS OF CLAIM FILED BY CLAIMANTS WITH SECURITY INTERESTS IN A DEBTOR S PRINCIPAL RESIDENCE. A. New National Bankruptcy Rule Rule Notice Relating to Claims Secured by Security Interest in the Debtor's Principal Residence (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. -14-

18 (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. The statement 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 -15-

19 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. B. Applicable Local Bankruptcy Rules in the Northern, Western, Southern, and Eastern Districts of Texas 1. Northern District of Texas L.B.R Proof of Claim Attachment Required for Claims Secured by Security Interest in the Debtor s Principal Residence. (a) In General. This rule applies in all cases and with regard to claims that are secured by a security interest in the individual debtor s principal residence. For chapter 13 cases, this rule applies in addition to the requirements of Rules 3002 and (b) Mortgage Proof of Claim Attachment. The holder of a claim secured by a security interest in the debtor s principal residence shall attach to its proof of claim an exhibit reflecting at least the following details regarding the prepetition claim being asserted: (a) all prepetition interest amounts due and owing, itemized such that the applicable interest rate is shown, as well as the start and end dates for accrual of interest at such interest rate; (b) all prepetition fees, expenses, and charges due and owing, itemized to show specific categories (e.g., appraisals, foreclosure expenses, etc.) and the dates incurred; (c) any escrow amount included in the monthly payment and, if there is an escrow account, a supplemental attachment of an escrow statement prepared as of the petition date; and (d) a statement reflecting the total amount necessary to cure any default as of the petition date (which statement must show (i) the number of missed payments, (ii) plus the aggregate amount of any fees, expenses, and charges due and owing, (iii) less any funds the creditor has received but not yet applied). (c) Form and Content. The proof of claim attachment described in this rule shall be prepared as prescribed by the Official Form B10, Attachment A. -16-

20 L.B.R Mid-Case Audit Procedures with Regard to Claims Secured by Security Interest in the Debtor s Principal Residence (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. This rule is in addition to the requirements of Rule (b) Mid-Case Notice by Chapter 13 Trustee. For cases filed on or after December 1, 2011, the Chapter 13 Trustee shall (during the periods month 18 to month 22, and month 42 to month 46 of the case) file and serve on the holder of the claim and its counsel and the debtor and debtor s counsel a Notice to Deem Mortgage Current or, alternatively, a Notice of Amount Deemed Necessary to Cure, stating whether or not, to the trustee s knowledge, the debtor is current on his plan and mortgage, and, if not, the amount believed necessary to cure any default on the plan and mortgage claim. The notice shall also contain negative notice language, informing the holder of its obligation to file and serve a response within 60 days, or else the information contained in the notice will be deemed unopposed and/or undisputed. If the trustee does not timely file and serve the notice required by this subdivision, the debtor may file and serve the notice. (c) Response to Mid-Case Notice. Within 60 days after service of a Notice to Deem Mortgage Current or, alternatively, a Notice of Amount Deemed Necessary to Cure, the holder shall file and serve on the debtor, debtor s counsel, and the trustee a response indicating whether it disputes the information in such Notice. The response shall itemize any cure amounts or postpetition arrearages that the holder contends exist as of the date of the response. (d) Determination of Mid-Case Notice/Response by Court. Whenever there is a response to a mid-case Notice to Deem Mortgage Current or, alternatively, a Notice of Amount Deemed Necessary to Cure, on request by the debtor, trustee, or claim holder, the court shall, after notice and hearing, determine whether the debtor is current on all required postpetition amounts. An order shall be issued reflecting any determination by the court. (e) Failure to Respond to a Mid-Case Notice. -17-

21 If the holder of a claim fails to respond as set forth in subdivisions (b) and above, the court shall issue an Order by default, finding the mortgage to be current as of the date of the Notice to Deem Mortgage Current, or alternatively, deeming the mortgage to be delinquent in the amount set forth in the Trustee s Notice of Amount Deemed Necessary to Cure, (f) Effect of Order on Mid-Case Notice. Any Order issued on a Notice to Deem Mortgage Current or, alternatively, on a Notice of Amount Deemed Necessary to Cure, (whether by default or after a response) shall preclude the holder from asserting cure amounts or postpetition arrearages that allegedly accrued before the date of Notice to Deem Mortgage Current or the Notice of Amount Deemed Necessary to Cure, in any contested matter or adversary proceeding in the case, or in any other manner or forum after a discharge in the case, unless the court determines, after notice and a hearing, that the failure was substantially justified or is harmless. Effective 4/1/12 19 (g) Reconciliation of this Rule with National Bankruptcy Rule Nothing in this Local Bankruptcy Rule shall be interpreted to conflict with National Bankruptcy Rule For example, the requirement that the holder of a claim secured by a security interest in the debtor s principal residence file a Notice of Postpetition Mortgage Fees, Expenses and Charges (Official Form B10, Supplement 2), to reflect postpetition charges, pursuant to National Bankruptcy Rules (c) and (d), is not superseded by this rule, nor is the procedure and timing for a debtor or trustee to file a motion pursuant to subsection (e) of that rule, to challenge the propriety of amounts set forth in such Notice, superseded. This Rule is intended to provide an additional mechanism for parties to identify and resolve disputes regarding postpetition mortgage arrearages (including alleged missed payments of postpetition principal and interest, as well as asserted postpetition fees and charges) at different checkpoints during a Chapter 13 case. 2. Western District of Texas NO LOCAL RULE HAS BEEN ADOPTED 3. Southern District of Texas Local Rule CONFIRMATION OF CHAPTER 13 PLANS. * * * (b) Mortgage Payments Through the Chapter 13 Trustee. Home mortgage payments will be made through the chapter 13 trustee, in accordance with Home -18-

22 Mortgage Payment Procedures. Home Mortgage Payment Procedures shall be procedures adopted by the chapter 13 trustees and approved by the court. Also see attached Addendum: (See separate attached PDF). 4. Eastern District of Texas NO LOCAL HAS BEEN ADOPTED C. Relevant Case Law Addressing Mortgage Claimants Proofs of Claim 1. Jones v. Wells Fargo Home Mortgage (In re Jones), 366 B.R. 584 (Bankr. E.D. La. 2007) ("Jones I") Debtor missed three Chapter 13 plan payments due to a heart attack. After the debtor modified the plan to cure the arrearage, the debtor arranged refinancing of his mortgage. Debtor requested a payoff balance from the creditor. After the closing of the refinancing, the debtor requested an accounting of the amounts the creditor asserted were due to payoff the debt. Only after commencement of an adversary proceeding, did the creditor provide an accounting. Debtor disputed the accounting, including postpetition inspection fees, attorney's fees, and prepetition Sheriff's commissions. The court found that the creditor's accounting did not reflect its agreement that four installments and attorney's fees would be paid through an agreed figure, and that prepetition charges were to be paid through the plan and did not bear interest. The court found that the creditor had paid itself without disclosing those payments to the debtor. Ultimately, the court held that the attorney fees were disallowed, because they were not shown to be reasonable. Additionally, the court held that the creditor's postpetition charges violated the automatic stay, but denied the damages requested by the Debtor. However, the court left open the question of whether to impose sanctions against the creditor. a. Subsequent History Following Decision in Jones I Jones v. Wells Fargo Home Mortgage (In re Jones), 2007 WL (Bankr. E.D. La. 2007) ("Jones II") On consideration of sanctions against Wells Fargo due to actions articulated in Jones I, the bankruptcy court awarded the debtor compensatory damages and sanctions, and also ordered the creditor to reform its accounting procedures in accordance with the opinion, in lieu of punitive damages. -19-

23 In re Stewart, 391 B.R. 327 (Bankr. E.D. La. 2008) ("Stewart I") The court found that Wells Fargo's proprietary software was set up to automatically apply payments to fees (including late fees and property inspection fees) as well as order broker price opinions from a division of the creditor at a profit, all without notice to the debtor. The court found that the creditor miscalculated the amounts due, and misled the court as to the fees charged postpetition. The court imposed monetary sanctions (noting its findings and conclusions in Jones I and Jones II), and ordered the creditor to audit every proof of claim it had filed in that district, in any case pending on or filed after April 13, Wells Fargo Bank, N.A. v. Jones (In re Jones), 391 B.R. 577 (E.D. La. 2008) ("Jones III") The court affirmed and increased the award of monetary sanctions, but (after the creditor, which had originally proposed the accounting procedures, withdrew its consent to the accounting procedures) vacated the order to reform accounting procedures, on grounds the bankruptcy court had not considered the absence of a legal remedy or the other factors of the four-part test for injunctive relief, in creating its order. In re Stewart, 2008 WL (Bankr. E.D. La. 2008) ("Stewart II") On the creditor's motion re-urging its motion for stay pending appeal, in light of the district court's order in Jones III, the court addressed the factors for injunctive relief, and denied the motion for stay pending appeal. Jones v. Wells Fargo Home Mortgage (In re Jones), 418 B.R. 687 (Bankr. E.D. La. 2009) ("Jones IV") On remand from Jones III, the court addressed the factors for injunctive relief, and again ordered a slightly-amended reform of accounting procedures. Jones v. Wells Fargo Home Mortgage (In re Jones), 2010 WL (E.D. La. 2010) ("Jones V") The District Court affirmed the Bankruptcy Court's order in Jones IV. In re Stewart, 2009 WL (E.D. La. 2009) ("Stewart III") The District Court, finding that the bankruptcy court had applied the factors for injunctive relief, affirmed. In re Stewart, 647 F.3d 553 (5th Cir. 2011)("Stewart IV") The Fifth Circuit held that 1) the debtor lacked standing to -20-

24 support injunctive relief, because there was no real or immediate threat of injury to the debtor in the future; and 2) the injunction requiring auditing of cases other than the one before the court was not supported by the debtor's objection to the creditor's claim, or the inherent authority of the court to protect its jurisdiction and judgments and control its docket. In re Jones, 439 Fed. Appx. 330 (5th Cir. 2011) ("Jones VI") The Fifth Circuit reversed, based on its opinion in Stewart IV Jones v. Wells Fargo Home Mortgage (In re Jones), 2012 WL (Bankr. E.D. La. 2012) ("Jones VII") With the higher courts having rejected the injunctive relief ordered, the court awarded punitive damages of $3.171 million against the creditor, finding that such an amount was necessary to deter future repetition of the conduct found in Jones I. Jones v. Wells Fargo Home Mortgage (In re Jones), C.A. No (Slip Op. 3/21/2013) The District Court affirmed the award of $3.171 million in punitive damages. 2. Other Cases Involving Mortgage Lenders Proofs of Claim In re Lopez, No , 2012 WL (Bankr. S.D. Tex. Dec. 31, 2012)(J. Paul) Creditor filed a notice of postpetition mortgage fees, expenses, and charges, including attorney fees, proof of claim fees, appraisal/broker price opinion fees, property inspection fees, insurance, interest on fees, miscellaneous, and publication cost." Debtor objected, asserting that the fees could not be allowed without an application complying with Bankruptcy Rule Debtor also sought an award of attorney s fees. The creditor did not file a response or appear at the hearing. The court held that the fees, expenses, and charges did not enjoy a presumption of validity due to the claimants failure to respond to the debtor s objection or to appear in support of its Notice of Post-petition Mortgage Fees, Expenses and Charges. However, the Debtor's request for attorney fees was not granted, in light of the fact that the proof of claim predated the requirement to use the official form for an attachment to a mortgage proof of claim. -21-