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Ohio: New Bankruptcy Motion for Relief Forms & Requirements (Northern District)

by Michael Arnovitz and Edward Bailey
Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A. – USFN Member (OH)
 

Effective April 1, 2010, the Northern District of Ohio will begin using new forms for motions for relief from stay and abandonment. The suggested changes were circulated to the bar back in the fall, and after comments were considered, the new forms were recently adopted in General Order 10-1.

The new forms require extra information and have specific motions and worksheets, depending on the chapter of the case. The motions now specifically ask for the transfer history of both the note AND the mortgage, unlike the old forms. Additionally, the new worksheets, which must be attached to the motions, require detailed breakdowns of the amounts owed on the account. In order to ensure prompt filings, below is an updated list of the necessary information for filing a motion for relief from stay in the Northern District of Ohio.

To establish the proper party in interest, the motions will require:

1.                  The note, including endorsements and allonges to the moving party;

2.                  If the endorsement or allonge is executed by an attorney in fact, a copy of the power of attorney (POA) granting the person the authority to execute the document will have to be provided for cases in front of Judge Morgenstern-Clarren.

3.                  The entity currently in possession of the note;

4.                  The name of the servicer, if not the holder of the note;

5.                  The recorded mortgage;

6.                  The recorded assignment(s) of mortgage; and

7.                  If the assignment is executed by an attorney in fact, a copy of the POA granting the person the authority to execute the document will have to be provided for cases in front of Judge Morgenstern-Clarren. In Ohio, this POA must be recorded with the county recorder’s office prior to the execution of the assignment for it to be valid.

8.                  Further, if a judgment entry of foreclosure has been obtained on the note and mortgage by another law firm, provide a copy of the judgment entry and the county and case number in which the judgment is entered.

The motion and attachments will require a detailed pay-off amount at the time the motion is filed. This should include:

1.                  The current principal balance

2.                  The outstanding interest owed

3.                  The per diem rate of interest

4.                  Separate, itemized amounts for each type of escrow item (taxes, insurance, etc.)

5.                  Separate, itemized amounts for each type of fee or cost (late fees, court costs, BPOs, NSF fees, etc.)

6.                  Suspense balance

The motion and attachments will require a detailed statement of the amount of arrearage. Chapter 7 motions will need the contractual arrears at the time the motion is filed. Chapter 13 motions will require the post-petition arrearage. The arrearage figures should include;

1.                  The payment amount (broken down by its components; i.e., principal and interest, real estate taxes, insurance, etc.)

2.                  Number of payments

3.                  Late charges

4.                  Escrow advances

5.                  Suspense balances

The date and the amount of the last payment applied must be provided.

For chapter 13 motions, a post-petition payment history must be attached.

A current appraisal and/or BPO should be provided if available.

The current monthly payment should be broken down by its components; i.e., principal and interest, real estate taxes, insurance, etc.

The judges in Northern Ohio have been demanding of creditors seeking relief in their courts, and the new forms incorporate many of the judges’ new standards.

© Copyright 2010 USFN and Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A. All rights reserved.
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