Post Petition Mortgage Payment Declarations and Motions to Sell
Posted: Tue Sep 07, 2004 5:05 pm
Recently, I filed a motion to sell property free and clear of liens,
claims and interests. The motion was filed immediately after
commencement of the Case. Two issues arose therefrom:
1. The Trustee takes the position that unless ordered by the Court,
the debtor must continue to provide evidence of post petition
mortgage payments, even though the motion to sell is pending and will
result in full payment.
The recommended solution is that upon filing motion, an ex parte
application to suspend mortgage payments and required filing of
Declaration of Post Petition payments should be entered. Does anyone
have any other suggestions?
2. I do not follow the local rule practice of submitting the motion
to the Chapter 13 Trustee, first, and then waiting for an answer from
the Chapter 13 Trustee. My experience has been that they sit on
them, and valuable time is lost. The court questioned my judgment on
the issue, but thankfully, Ken Schwartz, who was counel for another
party to the case, stepped up in support. The court entered the
order, notwithstanding that the Chapter 13 did not comment before.
Both Ken and I explained that the delay and possible loss of a sale
caused by the Chapter 13 Trustee probably wiil not be a valid
affirmative defense to a lawsuit from the client.
The recommended solution may be to file the motion, along with
an ex parte application to shorten time to the next Chapter 13
hearing date. Upon return of the OST, or even at the time of filing
the motion and ex parte application, personally serve the Chapter 13
Trustee with the Motion, the Ex Parte, the OST, and a comment sheet
to be filed as provided in the OST. At least then you are on
calendar, and you can argue you followed the local rules. Does
anyone have any other suggestions?
Thanks. Lou Esbin
The post was migrated from Yahoo.