Pub. 3 2012 Issue 1

www.wvbankers.org 8 In the wake of the national attention directed towards residential mortgages in the last few years, certain revisions were made to the Federal Rules of Bankruptcy Procedure to address perceived deficiencies in bankruptcy proofs of claim. T he rule changes were first proposed in 2009 by the Judicial Conference of the United States and became ef- fective December 1, 2011. The most noticeable change is the requirement that a new Proof of Claim form (Official Form 10) be used for all bankruptcy claims. 1 Of additional importance to creditors of individual debtors, new requirements have been added for claims in individual cases, especially with regard to mortgage claims involving the debtor’s principal residence. These changes are contained in Federal Rule of Bankruptcy Proce- dure 3001(c). Official Form 10: Upon reviewing the revised Form 10 for the first time, apart from minor stylistic changes, 2 a creditor will note two sub- stantial revisions to Boxes 7 and 8. Box 7 previously allowed the option to “attach a summary” of the documents supporting the claim. This option has been removed and the Form now requires a creditor to attach “redacted copies of the documents that support the claim.” In practice, it is doubtful that many creditors attached a summary rather than the actual documents. But that option has been removed, emphasizing the goals of the Judicial Conference to ensure that claims are supported with complete documentation. Box 8 previously required a claimant to sign the box and list her title. A proof of claim could be filed by “the creditor or other person authorized” to file the proof of claim. The new form requires that the signatory specif- ically identify her basis for filing the claim by listing her name, title, company, address, telephone number and email address, and by affirming that she falls into one of the following categories: » “I am the creditor.” » “I am the creditor’s authorized agent.” (Attach copy of power of attorney, if any.) » “I am the trustee, or the debtor, or their authorized agent.” (See Bankruptcy Rule 3004.) » “I am a guarantor, surety, indorser, or other codebtor.” (See Bankruptcy Rule 3005.) The revisions to box 8 also include a statement above the line for the signa- tory stating: “I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information, and reasonable belief.” Signing a proof of claim has always been subject to the penalty of perjury, but the inclusion of this statement in the form appears to be yet another example of the intent of the drafters to ensure the accuracy of the claims by reminding the signatory of the gravity of filing a claim. The penalty for filing of a fraudulent claim continues to be prominently displayed on the face of the form: “Fine of up to $500,000 or im- prisonment for up to 5 years, or both.” Of particular importance here is the case where a servicing agent files a proof of claim. According to the official Advi- sory Committee Note, “when a servicing New Bankruptcy Proof of Claim Rules Take Effect By Michael R. Proctor, Attorney at Law, Dinsmore & Shohl LLP