Elser v. West View Savings Bank (In re Elser)

249 B.R. 265, 2000 Bankr. LEXIS 633, 2000 WL 768536
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedJune 12, 2000
DocketNo. 99-26115
StatusPublished

This text of 249 B.R. 265 (Elser v. West View Savings Bank (In re Elser)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elser v. West View Savings Bank (In re Elser), 249 B.R. 265, 2000 Bankr. LEXIS 633, 2000 WL 768536 (Pa. 2000).

Opinion

MEMORANDUM OPINION1

JUDITH K. FITZGERALD, Chief Judge.

Before the court is the Debtors’ Motion to Determine Secured Status of the third mortgage against its property held by West View Savings Bank. The parties agree that there is a first mortgage held by PNC and a second mortgage held by First Union Mortgage Company. In addition, the parties agree that there are several tax liens against the property. The tax liens and first and second mortgages prime the third mortgage. The parties have stipulated for purposes of this hearing that the total value of the liens against the property with priority over West View’s is $112,215.15.

Debtors contend that their property is worth $105,000.00 and produced an expert appraiser, Shannon Ingersoll, who so testified. West View Savings Bank produced an appraiser, William Yoder, who testified that the value of the property is between $150,000.00 and $155,000.00. The experts agree that the condition of this property is not up to par. In addition to the appraisers’ reports and testimony, the court also heard testimony from Debtor June Elser. Ms. Elser explained that there are some repairs needed to portions of the property. For example, most of the wallpaper is old and some trim has been missing from the walls in different rooms of the house since it was built. The parties were in the process of making modifications to the interior when, according to Ms. Elser, they ran out of money. As a result, there are partially built walls in the foyer, a cabinet that was removed and not replaced in the main floor powder room, and some painting and similar work that must be completed to put the house in A-l condition. The parties agree that the Debtors made some repairs and modernized the property to a [266]*266certain degree. For example, the bedrooms occupied by the parties’ two sons are in relatively good condition, although one has holes in the walls that are covered with pictures and the carpeting in one is the original. Ms. Elser testified that Debtors installed a new bathroom in the basement. The house is “all electric” and there is no gas service. Everything in the house is original since Debtors moved in in January 1985 with few exceptions. One exception is a relatively new dishwasher.

There are, however, some major issues that the Debtors must address in order to put their property into prime marketable condition. For example, there was evidence that sewage backs up through a drain in the floor and fills up a portion of the parties’ basement. Ms. Elser explained that when there is no electricity to the pump (and this occurs when there is a short circuit due to dampness), the sewage is not pushed away from the house. This phenomenon is explained by Ms. Elser as the result of the method by which the leach bed was installed: the leach bed is behind and above the house, toward the backyard. The sewage must be pumped upward at a 45 degree angle. When the pump fails the sewage simply comes up into the house as it is not pumped to the leach bed. The sewage has flooded into the basement on several occasions, leaving behind dampness which has not been corrected, mold on the walls, damp insulation, damaged flooring and interior trim, an inoperable water softener tank due to corrosion from the sewage, and assorted other damages. Debtors had purchased the water softener to stop discoloration from their well water. Debtors are serviced with well water and a septic system, not from public utility service.

An even more significant problem with marketability of this house is that it has no operable central heating or air conditioning system. The house, which is located at 302 Ridgeway Drive in Baden, Economy Borough, Beaver County, Pennsylvania, is heated by use of a wood burning fireplace in the living room and a cast iron stove that uses propane gas. Debtors obtained estimates to replace the inoperable furnace that ranged from $3,500.00 to about $5,500.00. They cannot afford the replacement. In addition, there was a central air conditioning system which is also now inoperable. The main unit sits outside. It has rusted and has leaks in so many places that it will not hold the freon needed for cooling.

The house is in disrepair in other respects. Ms. Elser testified that there is a lot of moisture inasmuch as there are two springs, one on either side of her home. This contributed to the decay of the rear wooden deck. She also testified that only half of the stove works and that the kitchen countertops move. Debtors installed vinyl peel and stick tiles on the kitchen floor but they are pulling apart because the work was never finished. Pantry doors are missing because they were metal that rusted and they are warped. In the family room there is a hole in the carpet from coal falling out of the fireplace and burning the rug. The carpet is also stained and matted. The commode in the powder room leaks. In the living room the walls do not fit together properly. The floor around the fireplace is warped. The interior brick is pulling away from the wall. Caulking and grout are missing around the bathtub in the children’s bathroom on the second floor. Fixtures are stained. The commode does not function properly and must be plunged with each use. Carpets throughout are worn. In the foyer by the front door the floor is pulling away. The coat closet has no doors because they were corroded metal that Debtors removed.

The appraisers testified that the property is in “fair” or “below average” condition. The court credits Ms. Ingersoll’s testimony that not many houses on the market show the degree of deferred maintenance that this one does and that the typical buyer would pass up a house in this condition if [267]*267another comparably sized house that did not need so much work was available.

This house, which was described by Debtors’ expert as a pre-fabricated home, and by creditors’ expert as pre-cut, was purchased by Debtors and installed on the lot. Debtors moved into the house in January, 1985. The house has settled, and the settling has led to additional damage to the property. The evidence showed that the stairs leading up to the house from the street are not properly attached and are loose. Neighbors refuse to use them. Debtors built an exterior deck. However, they did not use wolmanized lumber and, as a result, since its installation in 1987, the deck has decayed and is unsafe for a person to stand on. Debtors have not torn it down because they use it as a place for their dog to exercise outdoors.

The experts varied significantly in the types of comparable homes used to assess value. Based on the comparability of the homes chosen, the court finds that the homes selected by Ms. Ingersoll are more comparable than those selected by Mr. Yoder. Ms. Ingersoll testified that the condition of Debtors’ house in terms of marketability is below average. She referred to the “principle of substitution” and used a definition stated in the HUD Handbook “Valuation Analysis for Home Mortgage Insurance”. See Trial Exhibit 45C. The Appraisal Terminology section of the HUD Handbook describes the principle of substitution as follows:

A valuation principle that states that a prudent purchaser would pay no more for real property than the cost of acquiring an equally desirable substitute on the open market. The Principle of Substitution presumes that the purchaser will consider the alternatives available to him, that he will act rationally, or prudently on the basis of his information about those alternatives, and that time is not a significant factor.

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Cite This Page — Counsel Stack

Bluebook (online)
249 B.R. 265, 2000 Bankr. LEXIS 633, 2000 WL 768536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elser-v-west-view-savings-bank-in-re-elser-pawb-2000.