Revised December 1, 2015 as provided under Administrative Order 14-03; and Amended on March 29, 2017.
When mortgage modification is sought as part of MMM in a chapter 12 case or chapter 13 case, the debtor shall include the following language in “Other Provisions” of the plan, which plan must be filed at the time that the Ex-Parte Motion, the Out of Time Motion or the Pro Se Motion is filed:
“The debtor has filed a Verified Motion for Referral to MMM with __________(“Lender”), loan number _________, for real property located at _________________________. The parties shall timely comply with all requirements of the Order of Referral to MMM and all Administrative Orders/Local Rules regarding MMM. While the MMM is pending and until the trial/interim payment plan or the permanent mortgage modification/permanent payment is established by the parties, absent Court order to the contrary, the debtor has included a post-petition monthly plan payment (a) with respect to the debtor’s homestead, of no less than the lower of the prepetition monthly contractual mortgage payment or 31% of the debtor’s gross monthly income (after deducting any amount paid toward HOA fees due for the property) and (b) with respect to income producing property, of no less than 75% of the gross income generated by such property, as a good faith adequate protection payment to the lender. All payments shall be considered timely upon receipt by the trustee and not upon receipt by the lender.
Until the MMM is completed and the Final Report of Mortgage Modification Mediator is filed, any objection to the lender’s proof of claim on the real property described above shall be held in abeyance as to the regular payment and mortgage arrearage stated in the proof of claim only. The debtor shall assert any and all other objections to the proof of claim prior to confirmation of the plan or modified plan.
If the debtor, co-obligor/co-borrower or other third party (if applicable) and the lender agree to a settlement as a result of the pending MMM, the debtor will file the MMM Local Form “Ex Parte Motion to Approve Mortgage Modification Agreement with Lender” (or Self-Represented Debtor’s Motion to Approve Mortgage Modification Agreement with Lender) no later than 14 calendar days following settlement. Once the settlement is approved by the Court, the debtor shall immediately amend or modify the plan to reflect the settlement and the lender shall amend its Proof of Claim to reflect the settlement, as applicable.
If a settlement is reached after the plan is confirmed, the debtor will file a motion to modify the plan no later than 30 calendar days following approval of the settlement by the Court and the Lender shall have leave to amend its Proof of Claim to reflect the settlement reached after confirmation of the plan. The parties will then timely comply with any and all requirements necessary to complete the settlement.
In the event the debtor receives any financial benefit from the lender as part of any agreement, the debtor shall immediately disclose the financial benefit to the Court and the trustee and amend or modify the plan accordingly.
If the lender and the debtor fail to reach a settlement, then no later than 14 calendar days after the mediator’s Final Report is filed, the debtor will amend or modify the plan to (a) conform to the lender’s Proof of Claim (if the lender has filed a Proof of Claim), without limiting the Debtor’s right to object to the claim or proceed with a motion to value; or (b) provide that the real property will be “treated outside the plan. If the property is “treated outside the plan,” the lender will be entitled to in rem stay relief to pursue available state court remedies against the property. Notwithstanding the foregoing, lender may file a motion to confirm that the automatic stay is not in effect as to the real property.
Confirmation of the plan will be without prejudice to the assertion of any rights the lender has to address payment of its Proof of Claim.”