3939 WPR Funding LLC v. Campbell (In re Campbell)

539 B.R. 66
CourtDistrict Court, S.D. New York
DecidedSeptember 28, 2015
DocketNo. 15 Civ. 665(ER)
StatusPublished
Cited by12 cases

This text of 539 B.R. 66 (3939 WPR Funding LLC v. Campbell (In re Campbell)) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
3939 WPR Funding LLC v. Campbell (In re Campbell), 539 B.R. 66 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

RAMOS, District Judge:

3939 WPR Funding LLC (“WPR Funding” or “Appellant”) appeals from two orders of the United States Bankruptcy Court for the Southern District of New York (1) an order entered on July 29, 2014, denying Appellant’s claim for pre-petition default interest on the underlying mortgage and note (the “July 2014 Order”), A-333 to A-346 1; and (2) an order entered on January 9, 2015, denying reconsideration of the July 2014 Order (the “January 2015 Order”). A-408 to A-414. The Bankruptcy Court denied Appellant’s claim for pre-petition default interest principally on the ground that Appellant failed to establish that it had affirmatively notified Marcia Campbell (“Campbell” or “Debtor”) of its intention to accelerate the note and charge default interest, a condition the Bankruptcy Court determined was required under the loan documents. In its motion for reconsideration, Appellant asked the Bankruptcy Court to receive into the record a notice of default and acceleration that was purportedly mailed to the Debtor (the “Default Letter”) well— prior to the time she filed for bankruptcy — which Default Letter Appellant concedes it had not previously placed in the record as part of its Proof of Claim. The Bankruptcy Court denied reconsideration. For the reasons set forth below, both Orders are AFFIRMED.2

[69]*69I. Background

Campbell is the owner of a commercial, mixed-used property in the Bronx (the “Property”). A-003. On April 13, 2005, she executed a mortgage and note secured by the Property in the amount of $400,000 with Flushing Savings Bank. Id. Campbell allegedly defaulted on the mortgage by failing to make the monthly payments due beginning on October 1, 2012 and every month thereafter.” Id. As a result of the default, Flushing Savings Bank commenced a foreclosure action on February 6, 2013, in Supreme Court, Bronx County. Approximately two months later, on April 19, 2013, Flushing Savings assigned its interest in the note and mortgage to Hayden Asset IX, LLC. A-266 to A-286. Hayden Asset, in turn, assigned its rights in the note and mortgage to Appellant on October 9, 2013, thus making Appellant the holder of a first priority lien on the Property. A-199 to A-209. On December 8, 2013, Campbell filed a petition under chapter 13 of the Bankruptcy Code with the United States Bankruptcy Court for the Southern District of New York, effectively staying the foreclosure action in Bronx Supreme Court. A-333.

On February 5, 2014, Appellant filed a Proof of Claim in the bankruptcy proceeding based on the note and mortgage. See Proof of Claim, A-001 to A-117. As relevant to the instant appeal, as part of its Proof of Claim, Appellant sought, in addition to other fees and penalties, pre-petition default interest in the amount of $79,009.70. A-114. That amount was calculated by applying the default interest rate provided in paragraph 7.2 of the mortgage, 24% (or 18.625% in excess of the 5.375% contract rate), to the principal balance of the mortgage at the time of default ($351,888.42), from the date of default to the date of the filing of the bankruptcy petition (October 1, 2012 to December 8, 2013). A-024.

The initial confirmation hearing on Campbell’s petition was held on May 1, 2014 before United States Bankruptcy Judge Allan L. Gropper (the “May 2014 Hearing”). See Transcript of Hearing, A-118 to A-131. At that hearing, counsel for Campbell specifically stated that the she was disputing the approximately $79,000 in pre-petition default interest being claimed by Appellant. A-123. The court, in turn, advised the parties that he had “written on default interest, you can take a look[,]” but that he did not know whether his prior opinion(s) would be applicable to the instant case. A-124.

On May 16, 2014, Campbell filed her formal Objection to Appellant’s Proof of Claim. A-137 to A-167. In the Objection, Campbell argued that the claim for default interest should be expunged because at 24%, it was usurious, dr that it should be disallowed for a host of equitable considerations.3 A-140. Campbell also specifically relied on two prior decisions issued by Judge Gropper discussing default interest, which, as Appellant points out, were cited incompletely in her Objection “This court has rendered two decisions on default interest one of which finds that default interest was allowable and one where it was denied. In re General Growth Properties, [70]*70Inc. Bankr.S.D.N.Y.2011[sic]) (case no. 09-11977[sic]); and In re Northwest Airlines Corporation [2007 WL 3376895] (Bankr.S.D.N.Y.2007) (case no. 05-17930).” Id. Finally, Campbell objected on the basis that she had not receive notice of acceleration from Appellant or its predecessors in interest:

“16. It is currently unclear from the documentation as to whether the notice for acceleration was properly given. Under Northwest Airlines Corporation, failure to provide the proper notification could result in the default interest being expunged. Debtor asserts that she is not aware of receiving notification of application of the default rate or acceleration of the promissory note.”

A-141.

On June 10, 2014, Appellant filed its Response to Campbell’s Objection. A-168 to A-294. In its Response, Appellant argued generally that the default interest rate provided in the mortgage was valid and enforceable under the bankruptcy statutes and as a matter of New York State contracts law, and was not otherwise usurious. A-173 to A-175. In responding to Campbell’s notice argument, Appellant simply stated: “the Debtor waived notice of payment and there is no provision requiring WPR to provide notice of default.” A-175. Appellant did not' argue that notice had in fact been given, either by letter or in any other fashion, or attempt to introduce evidence of any such notice.

A subsequent hearing was held in Bankruptcy Court the following week, on June, 17, 2014. See Transcript of Hearing (“the June 2014 Hearing”), A-295 to A-332. As counsel for Campbell made clear at the hearing, Appellant’s claim for default interest was proving to be an impediment to settlement because Campbell ultimately wanted to pay the arrearage and keep the Property, but apparently would not be able to do so if she also had to pay default interest. A-300. Judge Gropper again referred to his “decisions on the issue” and noted that the bankruptcy courts’ power is significantly less when it comes to pre-petition default interest than post-petition-default interest “For pre[-]petition we ordinarily have to follow state law ... and in order to avoid paying default interest under state law you have to make a very, very strong showing.” A-301. The parties then agreed with the judge that, due to the importance of the default interest issue to the resolution of Campbell’s petition, and the fact that there was no dispute as to the facts, Judge Gropper would decide that issue first before turning to other matters raised by Campbell’s petition:

“Court Okay. So ... are the parties in agreement that the issues relating to the default interest rate are primarily — expect [sic] for attorneys’ fees, which are a question of reasonableness, questions of law and I will decide those on the record.
[Counsel for Campbell]: Yes, Your Hon- or.
[Counsel for Appellant]: I think that’s correct, Your Honor, I don’t believe there’s any factual issues regarding — ”

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Cite This Page — Counsel Stack

Bluebook (online)
539 B.R. 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/3939-wpr-funding-llc-v-campbell-in-re-campbell-nysd-2015.