Attention:
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Taking Rule 3002.1 Sanctions Down the Gravel Road to Casa Blanco


Level: Advanced
Runtime: 68 minutes
Recorded Date: November 10, 2021
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Agenda

• Overview of Bankruptcy Rule 3002.1
• Notifices of Fees, Expenses and Charges - subsection (c) and (e)
• Penalty Provision - subsection (i) "Failure to Notify"
• Blanco's 2011 Bankruptcy Case
        - Notice of Payment Change under Rule 3002.1(b)(1)
        - The Trustee's Rule 3002.1(f): Motion Deem the Mortgage Current
        - The Deemed Current Order
        - The Second Bankruptcy Case
• Conclusion


Runtime: 1 hour, 8 minutes
Recorded: November 10, 2021

For NY - Difficulty Level: For experienced attorneys only (non-transitional)

Description

Rule 3002.1 exists to protect debtors and creditors from unnecessary disputes over the status of current and former chapter 13 debtors’ mortgage loans. A recent Second Circuit opinion (In re Gravel) calls into question the ability of bankruptcy courts to impose monetary sanctions on mortgage-servicers that fail to comply with Rule 3002.1’s requirements.

In this session, the panelists will cover both Gravel (and the dissent) and a recent bankruptcy court opinion (In re Blanco) that rejects the reasoning in Gravel. Can the two cases be reconciled? What is the standard that must be established to justify the imposition of sanctions when mortgage-servicers fail to comply with Rule 3002.1’s requirements, and what are the limitations on the amount of sanctions that can be considered appropriate?

The panelists will discuss these questions along with additional legal actions and notices that consumer attorneys should take in these cases, as well as using an adversary proceeding in lieu of a motion.

This program was recorded as part of ABI's 2021 Consumer Practice Extravaganza Virtual Conference on November 10th, 2021.

Provided By

American Bankruptcy Institute
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Panelists

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Theodore O. Bartholow, III

Partner
Kellet & Bartholow, PLLC

Theodore O. Bartholow, III is a partner with Kellett & Bartholow PLLC in Dallas, where he focuses on representing consumers from around the country in individual and class-action litigation against financial services providers and related entities, including mortgage-servicers, debtcollectors and other consumer creditors, with a focus on matters arising in and related to consumer bankruptcy. He also has substantial experience representing consumer creditors in connection with chapter 11 bankruptcies filed by consumer lenders and mortgage-servicers, including active roles in the recent Think Finance (N.D. Tex.) and Ditech (S.D.N.Y.) bankruptcies, in which he was particularly active on behalf of his consumer clients.

Mr. Bartholow is a member of the John C. Ford American Inn of Court, received the National Association of Consumer Bankruptcy Attorneys’ Distinguished Service Award in 2016, and represented the National Association of Consumer Bankruptcy Attorneys at a “Mortgage Mini-Conference” focusing on development of Bankruptcy Rule 3002.1 held by the Rules Committee of the National Conference of Bankruptcy Judges in 2012. His written work has been published in the ABI Journal, among other publications, and he has spoken at ABI conferences and at numerous other national conferences, including the National Conference of Bankruptcy Judges Annual Conference (2017), the National Consumer Law Center’s Consumer Rights Litigation Conference (2016, 2020), the National Association of Consumer Advocates and the National Association of Consumer Bankruptcy Attorneys, in addition to frequent presentations at local and regional continuing legal education events and webinars. In connection with representation of his consumer clients, Mr. Bartholow has been quoted by “NBC News,” The New York Times, The Wall Street Journal, The Los Angeles Times, The Chicago Tribune, The Dallas Morning News, ProPublica and “CNN Money,” among others.

Mr. Bartholow received his undergraduate degree in philosophy from the University of Texas in 1998 and his J.D. in 2002 from the Benjamin N. Cardozo School of Law in New York, where he was executive editor of the Cardozo Journal of International and Comparative Law.

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O. Max Gardner

Consumer Bankruptcy Attorney
Max Gardner Law PLLC

O. Max Gardner is a consumer bankruptcy attorney with Max Gardner Law PLLC in Shelby, N.C., and his work against predatory lenders and mortgage servicers has been featured in ABC News’s “Nightline,” PBS’s “Frontline,” CNN, BusinessWeek, The New York Times, The Washington Post, Forbes and many other news outlets across the country. He has also taken the lead in pursuing the attempts of many creditors to collect debts legally discharged in bankruptcy cases, and has trained hundreds of lawyers at his “Consumer Bankruptcy Boot Camps” for many years. The National Association of Consumer Bankruptcy Lawyers (NACBA) named Mr. Gardner a Champion of Consumer Rights in 2003, named him the Outstanding Consumer Lawyer of 2004 and awarded him The Distinguished Service Award in April 2013.

Mr. Gardner was elected a member of the North Carolina Legal Elite by Business North Carolina from 2004-07. He was also recognized as a “Super Lawyer” in North Carolina by Charlotte Magazine and by Law & Politics from 2006-10 in the field of Consumer Bankruptcy Law, and is rated AV-Preeminent by Martindale-Hubbell. Previously, Mr. Gardner was a senior law clerk to Hon. William H. Bobbitt, the late Chief Justice of the North Carolina Supreme Court, and to Hon. William Copeland, an Associate Justice of that court. He also worked as an associate with the law firm of Smith, Moore, Smith, Schell & Hunter until 1977, when he opened a consumer-based law practice in Shelby, N.C. In addition, he served as treasurer for Mc- Neill Smith’s 1978 Campaign for the U.S. Senate, was Of Counsel for Sims, Walker & Steinfeld of Washington, D.C., from 1983-94, and served as general counsel to the Democratic Party of North Carolina from 1993-97.

Mr. Gardner is a member of the North Carolina State Bar, North Carolina Bar Association, North Carolina Academy of Trial Lawyers, American Bar Association, American Bar Institute, American Trial Lawyers Association, National Association of Criminal Defense Lawyers, Southern Trial Lawyers Association, National Association of Consumer Bankruptcy Attorneys, National Association of Consumer Advocates, National Association of Chapter 13 Trustees, Civil Justice Foundation, National Consumer Law Center, Cleveland County Bar Association and 27-B Judicial District Bar Association.

Mr. Gardner received his undergraduate degree from the University of North Carolina at Chapel Hill in 1969 and his J.D. with high honors from the UNC School of Law in 1974, where he was a member of the North Carolina Law Review, president of the Student Bar Foundation, named the Outstanding Law School Graduate of 1974 and elected to the Order of the Coif.

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Glenn E. Glover

Partner
Bradley Arant Boult Cummings LLP

Glenn E. Glover is a partner with Bradley Arant Boult Cummings LLP in Birmingham, Ala., and has a broad practice that includes representing creditors in out-of-court workouts, bankruptcy cases and a variety of litigation settings. He also has experience in representing mortgage-servicers and other financial institutions in mortgage-related litigation in bankruptcy courts.

Mr. Glover has practiced in the area of bankruptcy and creditors’ rights for over 14 years. His practice involves a significant amount of workouts and restructurings for banks and other financial institutions, spanning both the transactional and litigation areas of the law. He has experience in real estate workouts of all sizes.

Mr. Glover is particularly familiar with important issues associated with drafting and securing favorable forbearance and modification terms for his clients with distressed loans, in addition to the numerous tools that are available for his clients’ use and advantage. On the litigation side, he follows his clients’ distressed loans into bankruptcy or litigation whenever necessary, and has taken scores of depositions and handled numerous evidentiary hearings in both federal and bankruptcy courts for his clients.

Mr. Glover has experience with a variety of creditor arrangements, from simple notes payable to syndication deals, and has obtained numerous successes in his practice by assisting his creditor clients in obtaining payment in full and defeating lender-liability claims raised by borrowers. He also has experience in representing mortgage-servicing clients in litigation in bankruptcy courts and is familiar with the numerous types of bankruptcy and nonbankruptcy claims brought against mortgage-servicers in litigation, including discharge violations, violations of the automatic stay, violations of confirmation orders, and violations of numerous other bankruptcy statutes and rules. In addition, he is knowledgeable of nonbankruptcy claims, including FCRA, FDCPA, RESPA and TILA allegations.

Mr. Glover received his B.A. magna cum laude and Phi Beta Kappa in 1992 from the University of Alabama, his M.A. in 1995 from the University of Alabama at Huntsville, his M.A. in 1996 from the University of Alabama at Birmingham, and his J.D. cum laude in 2000 from the University of Alabama School of Law.

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Hon. Jennifer H. Henderson

Bankrutpcy Judge
U.S. Bankruptcy Court, Northern District of Alabama

Hon. Jennifer H. Henderson is a U.S. Bankruptcy Judge for the Northern District of Alabama in Tuscaloosa, sworn in on Feb. 16, 2015. Previously, she was a partner with Bradley Arant Boult Cummings LLP’s Bankruptcy, Restructuring and Distressed Investing Practice Group in Birmingham, Ala., where she represented debtors and creditors in bankruptcy cases, out-of-court workouts and restructurings and bankruptcy- related litigation.

Judge Henderson clerked for Hon. Thomas B. Bennet and is listed as a 2014 Alabama Super Lawyers “Rising Star.” She received her B.A. magna cum laude from Birmingham-Southern College in 2001 and her J.D. summa cum laude form the University of Alabama School of Law in 2004, where she was a member of the Order of the Coif and a special works editor for the Alabama Law Review.


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