Sorry to respond so late to this inquiry.
Please keep using the Addendum. I believe that the Addendum is still a
good form and good law. US Bank has been filing objections to
confirmation stating that the revised Federal Rules of Bankruptcy
Procedure 3001(c) and 3002.1 render the Addendum improper and
superfluous. This is incorrect. US Bank has yet to understand the ruling
by the 9th Circuit Court of Appeals (adopting the ruling made by the
BAP) regarding the Addendum.
As you know the Addendum requires the mortgage creditor/servicer to send
monthly statements if statements were send prior to filing. It also
requires the mortgage creditor/servicer to send upon written request
quarterly reports. If creditor fails to send the statements or requested
quarterly reports, the debtor or trustee can request from the court an
OSC as to why the creditor is not complying with the confirmation order.
Several creditors appealed the Addendum first to the BAP and then to the
9th Circuit Court of Appeals and lost. The ruling is quite lengthy but
the Appellate Court stated in its ruling that TILA's "Regulation Z
requires the servicer to provide a final payout report, which would
require the servicer to have access to information on all costs and
balance, not only those specified by the Addendum, and to provide that
payout report on five days' notice." Id. at 37.
The revised and new rules of bankruptcy procedure require mortgage
creditors to provide notice of mortgage payment change within 21 days
and notice of escrow account changes within 180 days of the date first
incurred, among other things. These rules to not prevent the debtors
from requesting payoff statements from creditors under Regulation Z.
Therefore, these rules do not affect the requirement of the Addendum.
By the way, US Bank is trying to blackmail debtors into striking the
Addendum stating that they are entitled to charge the debtor $50 per
monthly statement and $75 for each quarterly report. These fees have not
been subjected to the "reasonable test." In the case of In re Vu (on
appeal to the BAP), US Bank made this argument and Judge Ahart
disagreed. Creditor stated that the cost were due to the fact that an
attorney would have to review every statement and report. The Judge
stated that he did not see why an attorney would have to review every
statement and report. He found that the fee was not reasonable.
I would urge everyone to read In re Monroy, 650 F. 3d 1300, and continue
using the Addendum. You should also consider requesting OSC's.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
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