Bankruptcy Court Announces New Proof of Claim Forms for Individual Cases

Commencing December 1, 2015, the official form 10, which was previously mandated for creditors making claims in individual cases, is being replaced by official form 410. It was revised as per the Forms Modernization Project. This project’s goal was to make the forms easier to read, capable of ready interface with technology, as well as more complete and accurate. Form 10’s open questions have been replaced with form 410’s more specific questions, which are also suitable for computer interface. In addition, line 10 of the new official 410 form now seeks information about claims based on leases.

Other related official forms have changed as well. This also includes official form 410A, which involves the mortgage proof of claim attachment. The new form provides a loan history which reveals when payments were received and how they were applied, after fees and charges occurred and when escrow charges were satisfied. This is designed so that the form’s fields/blanks could be automated in order to comply with Rule 3001(c) (2) (C). The loan history attachment now required with home mortgage proof of claim will provide transparency and in-depth detail of the basis for the claimant’s calculation of the claim and arrearage amount.

This loan history required by official form 410A should begin with the first date on which the borrower fails to make payment in accordance with the terms of the note and mortgage. This loan history is required in all situations, unless the note was subsequently brought current with no principal interest fees, in which case escrow payments charges immediately payable as of the date of the filing.

Official forms 410S1 and 410S2, Notice of Mortgage Payment Change and Notice of Post Petition Mortgage Fee Expenses and Charges respectively, were additionally revised as part of the Forms Modernization Project. These changes were designed to allow friendly computer interface.

Instructions to official form 410 make it abundantly clear that any supporting documentation must be filed along with the completed proof of claim. Failure to include the supporting documents may preclude these documents from being used in subsequent applications. This could be extremely prejudicial if, for example, a motion for relief from the bankruptcy stay is required for nonpayment and the original contract and/or mortgage was not properly included with the proof claim filing as an attachment. This comports with the bankruptcy Rule 3001 (c) and (d).

Further the instructions for the proof claim specify that the documents should be redacted so that no personal privacy information is provided. This is especially true with healthcare goods or services. This private information should be masked or redacted with black marker so as to eliminate any reference to the privacy matters. Never attach original documents.

In addition the proof of claim, documents should never show anything more than the last four digits of any security number or an individual’s tax ID number and the last four digits of the creditor’s financial account number. The completed form can provide the year of the person’s the birth, but no privacy identifiers beyond these should be present on the completed proof of claim. If there is a reference to minors and/or children, only the child’s initials and the full name and address of the child’s parents should be referenced. Regarding such a proof of claim, the official instructions shows as an example . . . “A. B., a minor child (John Doe, parent 123 Main St., City, State)”. This comports with Bankruptcy Rule 9037.

If a claimant seeks to receive confirmation that his claim has been filed, the official instructions suggest that the claimant include a stamped self-addressed envelope and a copy of the proof of claim form. As an alternative, the official instructions direct the claimant to visit the courts’ PACER system to view the filed form online. This PACER system can be found at www.pacer.pc.uscourts.gov.

The official instructions again reiterate that proofs of perfection for any security interest should include the documents that show that a security interest was filed or recorded. These include recorded mortgages, filed liens, certificates of title, or financing statements. Once more, make certain that there is appropriate redaction of any the privacy matters. The proof claim should set forth the amount of the debt the debtor owed to the creditor on the date of the bankruptcy’s filing. Of course, the form should be filed in the district where the case is pending.

It is possible for a claimant to have both a secured and unsecured claim on the same debt. The secured claim cannot be more than the value of a particular property in which the creditor has a lien—it is considered collateral. There are certain exceptions to this consideration, but for the most part this remains true. In that circumstance, on line 9 of the proof claim form 410, one amount to be entered for the secured portion and a separate amount of claim set forth for the unsecured portion is the portion owed over above the value of the collateral.

For any remaining questions, detailed information concerning changes and instructions to complete the official forms 410, 410S1 and 410S2 can be obtained on the official PACER system website.

As always, when in doubt, it may be prudent to confer with experienced counsel.

For more information contact Bari Gambacorta at Stark & Stark by e-mail at bjg@stark-stark.com or by phone at 609-896-9060.

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