Consumer Bankruptcy Journal Winter 2016 - Page 11

COMMENTS OF THE NACBA the secured creditor in negotiating a loan modification or some other form of loss mitigation. It makes no sense for a debtor in that situation to request stay termination. It would also be inconsistent with the procedural rules that some bankruptcy courts have established for loss mitigation mediation programs. For these reasons NACBA requests that proposed Rule 3015.1(d)(5) be revised to provide that a Local Form plan may list a request for stay termination as an available option to the debtor, but shall not mandate that such a request be made in connection with surrender. Requests for Determination of Amount of Secured Claim and Avoidance of Judicial Liens Proposed Rule 3012(b), which would become effective at the same time as proposed Rule 3015.1, provides that a request to determine the amount of a secured claim may be made in a motion, in a claim objection, or in a plan filed in a chapter 12 or 13 case. Proposed Rule 4003(d), also to become effective at the same time, provides that a request for lien avoidance under section 522(f) made be made by motion or by a chapter 12 or 13 plan. Although these proposed rule amendments clearly provide that a debtor may make such requests in the plan, and such requests are included as optional plan provisions in the proposed Official Form Chapter 13 Plan, proposed Rule 3015.1 does not require that Local Form plans include an option for the debtor to make a Rule 3012(b) or Rule 4003(d) request. NACBA believes that many districts will adopt a Local Form plan that will include express provisions permitting Rule 3012(b) and Rule 4003(d) requests. However, based on the comments submitted by a few bankruptcy judges about the Official Form Chapter 13 Plan, it is likely that a minority of districts will adopt a Local Form without such provisions. Debtors in those districts should not be required to make a Rule 3012(b) or Rule 4003(d) request as a nonstandard plan provision. It is nonsensical that an unambiguous procedural right that is permitted under the Bankruptcy Rules should be treated as “nonstandard.” Debtor attorneys and their clients in those districts will likely incur the additional costs of filing separate motions simply to avoid the additional scrutiny of “nonstandard” provisions. Moreover, the detailed information required to make a make a Rule 3012(b) or Rule 4003(d) request, as evidenced by sections 3.2 and 3.4 of the proposed Official Form Chapter 13 Plan, will make it difficult to draft such provisions as “nonstandard” provisions for those debtor attorneys who persist in attempting to make the requests in the plan. It will also result in a wide variance of valuation and lien avoidance provisions, detracting from the uniformity goals of the rule amendments and making it difficult for secured creditors to review plans in those districts. NACBA requests the Advisory Committee to amend proposed Rule 3015.1(d) to include a requirement that the Local Form plan shall contain a separate paragraph that gives the debtor the option to make a Rule 3012(b) and Rule 4003(d) request. National Association of Consumer Bankruptcy Attorneys 3 Winter 2016 CONSUMER BANKRUPTCY JOURNAL 11