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41 flexibility in requiring how and when those payments must be made. Typically, if the debtor fails to make a post-petition payment, a mortgage servicer brings a motion for relief from stay. is generally results in some type of adequate protection order requiring the debtor to bring the post-petition payments current within six months—the maximum post-petition default cure period allowed by most servicers and the period of time accepted by most courts. If the debtor fails to make regular future payments or fails to bring all post-petition payments current by the end of the six-month period, the adequate protection order generally provides a mechanism to have the stay terminated so that the servicer can proceed with foreclosure. While servicers generally require post- petition arrearages to be paid within six months, there is no magic to that time period. Nothing in the Bankruptcy Code requires post-petition arrearages to be cured within six months. e six-month period to cure the post-petition default has simply evolved as the custom and practice followed by the mortgage industry and most courts. In resolving a motion for relief from stay, a servicer can certainly allow the post-petition arrearages to be paid over a longer period of time. Similarly, in all but a handful of jurisdictions, a servicer can voluntary agree to resolve the post- petition default by allowing those payments to be added to the plan. Sometimes the order resolving the motion for relief from stay is enough by itself to include the post-petition payments in the plan. In other jurisdictions, the debtor must jump through some hoops to amend the plan to include those payments. Finally, in some Circuits, even where a servicer objects to putting the post-petition arrearages in the plan, courts regularly resolve the motion for relief from stay by ordering that those defaulted payments be added to the Chapter 13 plan (see e.g., Green Tree Acceptance, Inc. v. Hoggle (In re Hoggle), 12 F.3d 1008 (11th Cir. 1994) and Mendoza v. Temple-Inland Mortg. Corp. (In re Mendoza), 111 F.3d 1264, 37 C.B.C.2d 1691 (5th Cir. 1997)) In short, Congress' belief that a special mechanism was required to place missed post-petition payments into a plan seems misplaced. e ability to file a CARES Forbearance Claim will end on December 27, 2021, as will the right of a creditor to move to modify a plan to include the missed forbearance payments. But, as noted above, the same result can be achieved by the filing, and appropriate resolution, of a motion for relief from stay. e motion provides tremendous flexibility in fashioning a solution to the post-petition default while the pre-petition arrearages, including any pre-petition forbearance arrearages, are paid through the Chapter 13 plan. Also, the motion for relief from stay approach allows both federally related and nonfederally related loans to be similarly treated. Servicers are encouraged to use the flexibilities in resolving a motion for relief from stay to provide the loss mitigation results they want. Finally, and as with anything bankruptcy related, check with your local bankruptcy counsel on the best approach to resolve defaulted payments that occur during the forbearance term. Local rules and custom may argue for strikingly different approaches. Alan S. Wolf is the President and Managing Attorney of e Wolf Firm, A Law Corporation. Wolf is an AV-rated mortgage banking attorney, a fellow in the American Academy of Mortgage Attorneys, and has been selected by his peers as a member of Best Lawyers in America. He has served as the Chair of the California Mortgage Bankers Association Legal Services Committee (1994-1995) and Co-Chair (1995-1996), helped found the USFN, and served as a member of the USFN Board of Directors (1990-1996). Wolf lectures extensively throughout the country on a variety of loan servicing and mortgage banking issues and has been a featured speaker at numerous MBA National Legal Issues and Regulatory Compliance conferences and National Servicing conferences. He has also written many articles for leading mortgage banking trade journals and has authored sections in the Mortgage Bankers Association's Handbook on Loan Administration and two chapters in the Mortgage Servicers National Reference Directory. The ability to file a CARES Forbearance Claim will end on December 27, 2021, as will the right of a creditor to move to modify a plan to include the missed forbearance payments.

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