Cusato v. Springleaf Financial, Inc. (In re Cusato)

485 B.R. 824
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedFebruary 6, 2013
DocketBankruptcy No. 00-34338 ELF; Adversary No. 12-0429
StatusPublished
Cited by11 cases

This text of 485 B.R. 824 (Cusato v. Springleaf Financial, Inc. (In re Cusato)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cusato v. Springleaf Financial, Inc. (In re Cusato), 485 B.R. 824 (Pa. 2013).

Opinion

MEMORANDUM

ERIC L. FRANK, Bankruptcy Judge.

I. INTRODUCTION

In January 2012, Plaintiff Rosemary Cu-sato (“the Debtor”) settled on a reverse mortgage loan on her residence. Prior to the closing, Defendant Springleaf Financial, Inc. (“Springleaf’)1 demanded payment from the Debtor as a condition of marking satisfied its lien of record against the property. In order to close the transaction, the Debtor paid Springleaf $13,104.45 from the loan proceeds.

In this adversary proceeding, the Debt- or asserts that Springleafs lien was avoided in her bankruptcy case and that the demand for payment prior to the closing of the reverse mortgage transaction constituted an act to collect an unsecured debt in violation of the chapter 7 bankruptcy discharge that she received in 2005 and the statutory injunction arising therefrom. See 11 U.S.C. § 524(a)(2).

Before the court is Springleafs motion for summary judgment (“the Motion”).

I conclude that Springleafs demand for payment was not an attempt to collect a debt “as a personal liability of the debtor,” enjoined by § 524(a)(2), but was merely an attempt to enforce a lien against the Debt- or’s property that passed through her bankruptcy case unaffected. I reach this result because I conclude that the Sprin-gleaf lien was not avoided during the Debt- or’s bankruptcy case. Consequently, Springleaf did not violate the discharge injunction. The Motion will be granted and summary judgment will be entered in Springleafs favor.

II. FACTUAL AND PROCEDURAL HISTORY

A.

The facts in this matter are undisputed.

In February 1999, American General Finance, Inc. (“American General”) extended a loan to the Debtor that was secured by a second mortgage on her residence, 2334 South Colorado Street, Philadelphia, Pa [826]*826(“the Property”). American General is the predecessor of Springleaf.2

On November 16, 2000, the Debtor filed a'chapter 13 bankruptcy case. On November 29, 2000, the Debtor filed an adversary complaint in which she requested that the court avoid American General’s second mortgage lien. (See Adv. No. 00-899) (“the Prior Adversary Proceeding”).

In her adversary complaint in the Prior Adversary Proceeding, the Debtor alleged that American General’s loan in the amount of $11,536.54 was “totally underse-cured” and “subject to avoidance pursuant to 11 U.S.C. section 506(a), as interpreted by In re McDonald, 205 F.3d 606 (3d Cir.2000).” (Springleaf Ex. 4, at ¶¶ 3, 6).

American General filed a proof of claim on December 4, 2000 in the amount of $11,773.08, an amount very close to the amount alleged in the Debtor’s complaint in the Prior Adversary Proceeding. However, American General did not answer the adversary complaint. Upon the Debtor’s motion for default judgment, and by order dated March 16, 2001, the court entered an order (hereafter “the March 2001 Order”) stating:

AND NOW, this 16 day of March, 2001, upon consideration of the within Complaint and the failure of the Defendant to plead any viable defenses thereto, it is hereby ORDERED that the claim of the Defendant, AMERICAN GENERAL FINANCE, INC., is classified as a totally unsecured claim in this bankruptcy case.

(Springleaf Ex. 6) (emphasis added). Following the entry of the March 2001 Order, American General’s claim was reclassified on the claims register as an unsecured claim.

The docket in the “main” bankruptcy case reflects that after the entry of the March 2001 Order, the hearing on confirmation of the Debtor’s chapter 13 plan was continued twenty-seven (27) times over a period of approximately three and one-half years (3$) years.3 Nothing in the present record explains the basis for this extraordinary delay in case administration. The Debtor’s chapter 13 plan was never confirmed. Finally, on September 27, 2004, the Debtor filed an “election,” converting the case from chapter 13 to chapter 7. See Fed. R. Bankr.P. 1017(f) (chapter 13 case may be converted to chapter 7 without court order under 11 U.S.C. § 1307(a) by the filing of a notice of conversion).

On January 11, 2005, the court entered a chapter 7 discharge order. The case was closed on April 11, 2005.

More than six (6) years later, in September 2011, the holder of the first mortgage on the Property, American Home Mortgage Servicing, Inc. (“AHMSI”), filed a complaint in foreclosure against the Debt- or in the Court of Common Pleas, Philadelphia County, presumably based upon a mortgage payment delinquency. (See Springleaf Ex. 11). To avert the threatened foreclosure, the Debtor applied for a reverse mortgage loan with Urban Financial Group (“Urban”). (Debtor’s Affid. ¶ 15). The loan application was approved.

In response to a request for a payoff statement made by the title agent handling the reverse mortgage loan closing, Sprin-gleaf sent the title agent a letter stating [827]*827that the payoff amount on the outstanding second mortgage loan was $13,104.45, good through January 22, 2012. (Springleaf Ex. 7, Decl. of Melody Smith ¶ 4). The payoff letter appears to be Springleaf s first collection effort of any kind after the entry of the Debtor’s chapter 7 discharge. (See Debtor’s Affid, ¶ 14).

After Urban informed her of the outstanding Springleaf obligation, the Debtor advised Urban that she “vigorously disputed” the claim and “attempted to call” Springleafs office. (Id. at ¶¶ 18-19). In the end, however, she permitted the Sprin-gleaf loan to be paid off at the reverse-mortgage closing because Urban advised her that the loan could not close without the payment and, without the loan, she considered her home to be in jeopardy of foreclosure by AHMSI. (Id. ¶¶ 20-21).

B.

On April 21, 2012, the Debtor filed a motion to reopen- her chapter 7 bankruptcy case for the purpose of filing the present adversary matter to recover the sums paid to the Defendant. On May 30, 2012, there being no opposition,4 the court granted the motion and entered an order reopening the bankruptcy case. That same day, the Debtor initiated this adversary matter by filing a complaint. Springleaf filed its Answer on June 29, 2012. Springleaf filed the Motion on November 19, 2012. (Adv. No. 12-0429, Doc. #’s 17, 18). The Debt- or timely filed her response to the Motion on December 2, 2012. (Adv. No. 12-0429, Doc. #’s 21, 22). The matter is ready for disposition.

III. LEGAL STANDARD — SUMMARY JUDGMENT

A moving party is entitled to summary judgment by demonstrating that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see, e.g., Liberty Lincoln-Mercury, Inc. v.

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Cite This Page — Counsel Stack

Bluebook (online)
485 B.R. 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cusato-v-springleaf-financial-inc-in-re-cusato-paeb-2013.