Question:
Does your state require recorded assignment of mortgage to be attached to the proof of claim?

Answers:
Georgia / Northern District
As a general rule, assignments are not required to be attached to the proof of claim. However, the better practice is to attach the assignments to the proof of claim to avoid any confusion regarding the claim.

Georgia / Middle District
Assignments should be attached to the proof of claim as the Chapter 13 Trustee may fail to disburse on the claim or object to the claim if the assignments are not attached to the claim when filed.

Georgia / Southern District
As a general rule, assignments are not required to be attached to the proof of claim. However, the better practice is to attach the assignments to the proof of claim to avoid any confusion regarding the claim.

Tennessee / Eastern District
Assignments are required to be attached to the proof of claim. The Chapter 13 Trustee will not disburse funds without the assignments showing the chain of title.

Tennessee / Middle District
Assignments are required to be attached to the proof of claim. The Chapter 13 Trustee will not disburse funds without the assignments showing the chain of title.

Tennessee / Western District
As a general rule, the assignments are not required to be attached to the proof of claim. However, the better practice is to attach the assignments when the claim is filed to avoid any confusion on the claim.

North Carolina
Recorded Assignments are required for the filing of claims in all districts in North Carolina.

Alabama
The courts and trustees in Alabama require copies of recorded assignments to be attached to the proof of claim.

Question:
Is a proof of claim breakdown required?

Answer:
An itemization of the claim is required in all districts in the states in which we practice.

Question:
Is it necessary to have a recorded assignment of mortgage before a proof of claim can be filed?

Answer:
As stated above, a recorded assignment is not required in all instances in order to file a claim. However, in those districts where an assignment is required, an objection to the claim may be filed (or the trustee may fail to disburse funds) if the recorded assignment is not attached to the claim when filed.

Question:
How much is the filing fee for a motion for relief from stay in your state?

Answer:
The Administrative Office of the U.S. Courts sets the filing fee at $75.00. The local courts add no additional fees for the filing of a motion for relief from stay in any of the states in which practice.

Question:
Is it necessary to have a recorded assignment into the movant-lender before the court will entertain a motion for relief?

Answer:
To assure that the movant on the motion is correct, an assignment into the current mortgagee would be required. Otherwise, the motion for relief from stay should be filed in the name of the entity to whom last assigned.

Question:
Are witnesses needed to testify at motion for relief hearings?

Answer:
If a factual dispute arises, a witness may be required to testify. Generally, the facts are not in dispute, and the motions can be resolved without the need for a witness, via an affidavit from the servicer or a statement from counsel.

Question:
What is the number of payments a debtor must be down before the court will entertain a motion for relief?

Answer:
The courts have no specific number of payments that a debtor must be down before they will entertain a motion for relief from stay. Generally, if a borrower has missed two to three post-petition payments, the lender can feel secure in filing a motion for relief from stay in all of the jurisdictions in which we practice.

Question:
Are default clauses a normal part of Consent Orders? If so, are they 10 days, 15 days or 30 days?

Answer:
Default clauses can generally be included in Consent Orders in most of the jurisdictions in which we practice. The time of the default clause varies by judge within the jurisdiction, and will take into the account the number of previous cases filed, the number of prior motions for relief from stay, and whether the debtor has equity in the property. Some courts will not allow such clauses on the first motion.

Question:
Is it common practice to construct a consent order which grants the movant-mortgagee automatic relief if the debtor defaults on future payments?

Answer:
Occasionally, an order may be entered that will include an automatic relief provision in some of the jurisdictions in which we practice. As a general rule, however, such orders are rarely entered by the courts in the jurisdictions in which we practice. It is more common for the orders to provide a cure period and notice to the debtor and his/her attorney before relief is granted.

Question:
Is it common practice to put the full cost of the legal fees into the consent order?

Answer:
In all cases we attempt to recover attorneys fees through the consent order. While many judges allow full fees, some of the judges will allow only partial fees to be included in the consent order. Where we are unable to recover the full fees and costs in the consent order, the matter is usually presented to the court for a ruling. If the judge routinely will allow only a partial fee, and the fee has been established by prior rulings, a consent order may be entered including only the partial fee allowed by the court.

Question:
Does the Chapter 13 Trustee pay post-petition as well as pre-petition payments?

Answers:
Georgia / Northern
The Chapter 13 Trustee generally does not pay the on-going post-petition payments.

Georgia / Middle
If the debtor is delinquent at the time of the case filing, the Chapter 13 Trustee generally will disburse the pre-petition arrearage claim and the on-going post-petition payments.

Georgia / Southern
The Chapter 13 Trustee generally does not pay the on-going post-petition payments.

Tennessee
The Chapter 13 Trustee generally disburses the pre-petition arrearage claim and the on-going post-petition payments for all districts in Tennessee. If there is no pre-petition arrearage claim, the Chapter 13 Trustee may allow the debtor to act as his own disbursing agent for the on-going post-petition payments.

North Carolina / Eastern
The Chapter 13 Trustee does not generally act as the disbursing agent for the on-going post-petition payments.

North Carolina / Middle
The Chapter 13 Trustee generally disburses on the pre-petition arrearage claim and the on-going post-petition payment.

North Carolina / Western
The Chapter 13 Trustee generally disburses on the pre-petition arrearage claim and the on-going post-petition payment.

Alabama
In most districts in Alabama, the Chapter 13 Trustee does not pay post-petition payments.

Question:
Are reaffirmation agreements commonly done in your state?

Answer:
Reaffirmation agreements are common in the jurisdictions in which we practice.

Question:
If a motion for relief is filed, do you need a BPO to attach to your moving papers?

Answer:
Georgia
Generally, a BPO is not required for the filing of a motion for relief from stay in any of the districts within Georgia.

Tennessee / Western
Generally, a BPO is not required for the filing of a motion for relief from stay in the Western District of Tennessee.

Tennessee / Eastern and Middle
A BPO or some other type of evidence of value is required for the filing of all motions for relief from stay in the Eastern and Middle Districts of Tennessee.

North Carolina
A BPO or some other type of evidence of value is required for the filing of motions for relief from stay in all districts in North Carolina.

Alabama
The courts do not require that a BPO be attached to a motion. However, in the Southern District, we do provide an affidavit which states the Tax Assessors value of the property.

Question:
Is a Chapter 7 Motion for relief heard on papers only?

Answers:
Georgia
A hearing is set for all motions for relief from stay filed in all districts in Georgia.

Tennessee / Western
A hearing is held on all motions for relief from stay that are filed.

Tennessee / Eastern and Middle
A hearing is set for all motions for relief from stay; however, a time period is established for the filing of a responsive pleading. If no response is filed to the motion, the court may enter an order granting the motion without holding a hearing.

North Carolina
In all districts in North Carolina, a time period is established for the filing of a responsive pleading. If a response to the motion is filed, the court will schedule a hearing. If no response to the motion is filed, the court will enter an order granting the motion without holding a hearing on the motion.

Alabama
A Chapter 7 relief motion is docketed for a bench hearing as are all motions.