Bankruptcy Courts Should Adopt Formal Loss-Mitigation Procedures to Help Debtors Modify Mortgages According to Latest ABI Quick Poll
Alexandria, Va.— A majority of respondents (70 percent) in a recent ABI Quick Poll “agreed strongly” or “agreed somewhat” that bankruptcy courts should adopt formal loss-mitigation procedures to facilitate the negotiation of residential mortgage modifications for consumer debtors. The first loss-mitigation program (LMP) was created by the U.S. Bankruptcy Court for the Southern District of New York in 2008 to open communication between the mortgage creditor and the debtor at risk of losing his home through foreclosure. Individual debtors under chapters 7, 11, 12 or 13 can request loss mitigation by making an application to the court. Once the court so orders, the loss-mitigation period begins and the parties must begin to negotiate. The court may impose deadlines, hold status conferences and approve settlements between the parties. To combat the communication failures commonly observed in foreclosure negotiations outside of bankruptcy, LMPs require the creditor to provide the contact information for a person with full settlement authority and for that person to be present at loss-mitigation status conferences. While additional courts have adopted LMPs since 2008, there is no provision in the Bankruptcy Code or Rules that specifically creates or authorizes loss-mitigation programs. Without express statutory authority, judge-made loss-mitigation programs are vulnerable to litigation. Conversely, 24 percent of respondents (20 percent “strongly” and 4 percent “somewhat”) believe that bankruptcy courts should not adopt formal loss-mitigation procedures to facilitate the negotiation of residential mortgage modifications for consumer debtors. Seven percent did not know/had no opinion on the poll. ABI’s Quick Poll is posted on ABI’s home page, www.abiworld.org. ABI members and the public are invited to respond to a question on a timely bankruptcy or insolvency issue. Visit http://news.abi.org/quick-polls/archive to access the results of previous ABI Quick Polls. ### ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes over 13,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abiworld.org/conferences.html.
Tuesday, October 23, 2012