KAY WOODS, Bankruptcy Judge.
This cause is before the Court on Fifth Third Mortgage Company's Motion to be
This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and the general orders of reference (General Order Nos. 84 and 2012-7) entered in this district pursuant to 28 U.S.C. § 157(a). Venue in this Court is proper pursuant to 28 U.S.C. §§ 1391(b), 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.
Fifth Third holds a second mortgage on the residence of Debtors James Leslie Adkins and Tina Marie Adkins ("Debtors") based on a Note (defined by Fifth Third as the "HELOC"), which Fifth Third represents is attached as Exhibit A to the Motion to Excuse Notice.
Fifth Third states that "[u]nder the terms of the HELOC, the required payments are only in the amount of the finance charges from the outstanding balance for the prior billing period" and that the "agreement matures and the outstanding balance is due in 2026." (Mot. to Excuse Notice at 1.)
On November 10, 2010 ("Petition Date"), the Debtors filed (i) a voluntary petition pursuant to chapter 13 of the Bankruptcy Code; and (ii) Chapter 13 Plan (Doc. #2), which provided for the treatment of two claims held by Fifth Third in Article 2E. Fifth Third contends that, as of the Petition Date, "there were arrearages on [Fifth Third's] claim which were subject to being cured pursuant to 11 USC 1322(b)(5)." (Id. at 1-2.) The Debtors' Chapter 13 Plan was confirmed pursuant to Confirmation Order (Doc. #29) entered on June 24, 2011.
Fifth Third seeks an order from this Court excusing it from the requirements of Federal Rule of Bankruptcy Procedure 3002.1(b) in this case. Fifth Third concedes that the provisions of Rule 3002.1(b) apply, but argues:
(Id. at 2.)
As Fifth Third concedes, there is no question that the terms of Rule 3002.1(b) apply to its claim. (Id.) ("Accordingly, the provisions of Subsection (b) [of Rule 3002.1] apply.") Fifth Third admits, "The HELOC in this case is secured by the Debtors' principal residence and is provided for under § 1322(b)(5)." (Id.) Rule 3002.1 provides, in pertinent part:
FED. R. BANKR.P. 3002.1(a)-(b) (West 2012). Despite acknowledging the applicability of Rule 3002.1(b) to its secured claim, Fifth Third asks to be "excus[ed]" from compliance with the Rule because it argues that compliance is "virtually impossible." (Mot. to Excuse Notice at 1-2.)
The Court will accept Fifth Third's representations concerning the HELOC as true and accurate despite lack of support for such representations in the Note attached to the Motion. Based on such representations, the Court sympathizes with Fifth Third and the difficulty that compliance with Rule 3002.1(b) presents under these circumstances.
Federal Rule of Bankruptcy Procedure 1001 provides, "The Bankruptcy Rules and Forms govern procedure in cases under title 11 of the United States Code.... These rules shall be construed to secure the just, speedy, and inexpensive determination of every case and proceeding." FED. R. BANKR.P. 1001 (West 2012). Application of the Federal Rules of Bankruptcy Procedure is mandatory in "every case and proceeding." Id. This Court has found no provision for excusing compliance with a Bankruptcy Rule.
The Bankruptcy Rules require certain acts within prescribed time frames. When a court has discretion to extend time or excuse performance, the Bankruptcy Rules so provide. To that end, the phrase "unless the court orders otherwise" appears in the following Bankruptcy Rules: 1004.2, 1007(a)(3), 1007(a)(4), 1007(b)(1), 1007(c), 1019(5)(C), 1021(a), 2002(a)(1), 2002(g)(3), 2003(b)(3), 2015.1(a), 2015.1(b), 2015.2, 2015.3(f), 2019(b)(2), 3006, 3015(g), 3019(b), 3020(e), 4001(a)(3), 6004(h), 6006(d), 8011(c), 9006(a)(3) and 9037(a). In contrast, Bankruptcy Rule 3002.1 has no such discretionary language. Instead, Rule 3002.1 provides, in subsection (a), that it "applies" to "claims that are (1) secured by a security interest in the debtor's principal residence, and (2) provided for under § 1322(b)(5) of the Code in the debtor's plan" and, in subsection (b), that the holder of the claim "shall file and serve" the required notice. FED. R. BANKR.P. 3002.1(a)-(b).
Fifth Third cites three examples that it characterizes as "exemptions from strict compliance," but such examples are not exemptions from compliance with Bankruptcy Rule 3002.1. (Mot. to Excuse Notice at 3.) As Fifth Third notes, "Other Bankruptcy Courts that had notice of payment change requirements prior to the adoption of 3002.1 have recognized the
There is no reason to assume that any of the examples attached as Exhibits to the Motion to Excuse Notice are still in effect after the effective date of Bankruptcy Rule 3002.1 — i.e., December 1, 2011. Even if any of the orders or local rules is still in effect, such order or rule provides no basis for this Court to excuse one creditor's compliance with Bankruptcy Rule 3002.1 in a single bankruptcy case. This is especially true where, as here, Fifth Third acknowledges the applicability of the Bankruptcy Rule.
Because of the mandatory application of Bankruptcy Rule 3002.1 to Fifth Third's claim, this Court does not believe it has the authority to "excuse" Fifth Third's compliance with the Rule. For the reasons set forth above, this Court hereby denies the Motion to Excuse Notice.