Andrews v. Chamblee (In re Chamblee)

510 B.R. 370
CourtUnited States Bankruptcy Court, N.D. Alabama
DecidedApril 30, 2014
DocketBankruptcy No. 12-05491-TOM-7; Adversary No. 13-00021-TOM
StatusPublished
Cited by2 cases

This text of 510 B.R. 370 (Andrews v. Chamblee (In re Chamblee)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. Chamblee (In re Chamblee), 510 B.R. 370 (Ala. 2014).

Opinion

MEMORANDUM OPINION

TAMARA O. MITCHELL, Bankruptcy Judge.

This adversary proceeding came before the Court for trial on January 22, 2014, and February 3, 2014. Appearing before the Court were Lee R. Benton and Jamie Alisa Wilson, counsel for the Defendant/Debtor; Gail Lindley Andrews, pro se Plaintiff; Cheryl Ann Chamblee, the Defendant/Debtor; Jodi Ketchersid, witness for the Plaintiff; and George Andrews, witness for the Plaintiff. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 151, and 157(a) and the District Court’s General Order Of Reference Dated July 16,1984, As Amended July 17,-1984.1 This is a core proceeding arising under Title 11 of the United States Code as defined in 28 U.S.C. § 157(b)(2)(I).2 This Court has considered the pleadings, arguments, the testimony of the Debtor, Plaintiff, and witnesses, and the law, and finds and concludes as follows.3

[374]*374FINDINGS OF FACT4

This adversary proceeding concerns a mortgage debt owed by Ms. Chamblee to Ms. Andrews. Ms. Amdrews asserts that but for misrepresentations made by Ms. Chamblee she would not have loaned Ms. Chamblee money, and therefore the debt should be held nondischargeable. The trial of this adversary proceeding spanned one and one-half days and the parties introduced hundreds of pages of exhibits. The parties’ accounts of the factual background differ in material respects.

According to the testimony of both parties, Ms. Chamblee and Ms. Andrews first became acquainted with each other in June 2007. Ms. Chamblee testified that she was looking at houses for sale in Ms. Andrews’s neighborhood when she was approached by George Andrews, Ms. Andrews’s husband, who asked if she would like to view the Andrews’s home. She testified that she later contacted Ms. Andrews to set up an appointment, and at the time she viewed the house she and Ms. Andrews discussed Ms. Chamblee’s desire to move from Destín, Florida, where she worked as a realtor, to Birmingham so that her son could attend Altamont School. According to Ms. Chamblee she informed Ms. Andrews that she would work in Birmingham as a realtor and also continue to work in Destín as a realtor.

Ms. Chamblee testified that she does not recall speaking with Ms. Andrews about the selling price of the house at that time, but that Ms. Andrews had that discussion with Ms. Chamblee’s ex-husband when he came to see the house. At some point the parties agreed that Ms. Andrews would sell the house to Ms. Chamblee for $950,000.00. See Joint Exh. 6, Real Estate Sales Contract. Ms. Andrews testified that when Ms. Chamblee’s ex-husband asked if she would hold the mortgage she declined; however, she did agree to Mr. Chamblee’s request that she hold a smaller second mortgage. According to Ms. Andrews he represented that he was developing a condominium project, and further, that when the development was ready in a couple of years Ms. Chamblee would sell the units and the second mortgage loan owed to Ms. Andrews could be repaid. Ms. Andrews stated that Mr. Chamblee asked that a no-prepayment-penalty clause be added to the contract so that Ms. Chamblee would not be penalized if the loan could be paid off more quickly. Ms. Andrews, a licensed attorney who serves as a law clerk to a state court judge presiding over civil cases, and who has a private law practice doing some family and/or domestic relations work on her own, drafted the Real Estate Sales Contract (“Sales Contract”) at the request of Mr. Chamblee. The Sales Contract, which incorporated her agreement to hold a second mortgage, provided that $700,0005 of the purchase price would be paid at closing, and Ms. Andrews would hold a second mortgage securing a Promissory Note (the “Note”) in the amount of $250,000 to be repaid with $50,000 interest on or before August 10, 2009. See Joint Exh. 6, Real Estate Sales Contract. Ms. Andrews testified that she wanted the Sales Contract to contain a requirement that Ms. Cham-blee provide either a “letter of credit” or [375]*375“affirmation of loan approval” within 10 days of the Sales Contract being signed. According to Ms. Andrews, her husband had been diagnosed with Parkinson’s disease and they had a lot of belongings to move; thus she needed proof that Ms. Chamblee would be getting a first mortgage loan before they undertook the effort to move within 30 days as Ms. Chamblee requested.

Ms. Chamblee testified that after signing the Sales Contract she went to the beach for the Fourth of July holiday, and upon returning, she informed Ms. Andrews that she was unable to obtain a letter of credit or affirmation of loan. Each of the parties has a different version of what happened next. According to Ms. Cham-blee she offered to Ms. Andrews the good faith estimate prepared by her first mortgage lender, Countrywide Bank (“Countrywide”), reflecting the interest rate, loan charges, and other information that would indicate to Ms. Andrews she was working to obtain a loan. In contrast, Ms. Andrews testified that Ms. Chamblee offered and she agreed to accept Ms. Chamblee’s loan application prepared for Countrywide (“Loan Application” or “Application”) in lieu of a letter of credit and affirmation of loan. Although the Sales Contract specified that Ms. Chamblee was to provide both a letter of credit and an affirmation of loan, Ms. Andrews apparently proceeded as if Ms. Chamblee was required to produce only one or the other because, according to Ms. Andrews’s testimony, she closed the sale and loan despite having received only the Loan Application. Ms. Andrews claimed that she received a copy of the Loan Application via email although she could not remember if Ms. Chamblee or a Countrywide representative emailed it to her.6 Ms. Andrews could not establish with certainty how she obtained the Loan Application because, she asserted, the computer that she used at the time had since “crashed” and she lost all of its contents. Ms. Chamblee disputes that she provided the Loan Application to Ms. Andrews. She testified that she received the Loan Application along with other loan documents through some form of express mail and not email, that she did not recall emailing Ms. Andrews a copy of the Loan Application, and further, that the Loan Application contained personal information that she would not have provided to someone she barely knew. Nonetheless, Ms. Andrews either accepted something in place of the letter of credit and affirmation of loan, which were called for in the Contract, or waived or ignored the requirement, because her mortgage loan to Ms. Chamblee and the sale of the house closed June 26, 2007.7

Ms. Andrews testified that because she financed a portion of the purchase price for Ms. Chamblee, she likewise financed a portion of the purchase price of her new home with the sellers. Ms. Andrews contends that when Ms. Chamblee did not pay off the second mortgage loan from Ms. Andrews when due, Ms. Andrews had to [376]*376arrange alternative financing to pay off her own mortgage loan.

Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
510 B.R. 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-chamblee-in-re-chamblee-alnb-2014.