Foster v. Homeward Residential Inc. ex rel. U.S. Bank National Ass'n (In re Foster)

500 B.R. 197, 2013 WL 3766888
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedJune 24, 2013
DocketNo. 12-74591-MGD
StatusPublished
Cited by3 cases

This text of 500 B.R. 197 (Foster v. Homeward Residential Inc. ex rel. U.S. Bank National Ass'n (In re Foster)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Homeward Residential Inc. ex rel. U.S. Bank National Ass'n (In re Foster), 500 B.R. 197, 2013 WL 3766888 (Ga. 2013).

Opinion

ORDER OVERRULING DEBTOR’S OBJECTION TO CLAIM, IN PART, AND DISALLOWING $1,744.20 OF THE CLAIM

MARY GRACE DIEHL, Bankruptcy Judge.

Debtor’s objection to claim filed by Homeward Residential Inc. came on for an evidentiary hearing on April 22, 2013. (Docket No. 21). Prior to the hearing, the claim at issue was transferred to Ocwen Loan Servicing, LLC (“Ocwen”). (Docket No. 38). Latrice Latin appeared at the hearing on behalf of Debtor. Celeste Cornell represented Ocwen. K. Edward Safir appeared as counsel to the Chapter 13 Trustee, Mary Ida Townson. The Court heard testimony and argument from the parties. Debtor’s Exhibits B, C, D and F were admitted without objection. Ocwen’s Exhibits 1-3, 6 and 8 were also admitted into evidence without objection. The Court sustained Debtor’s objection to Ocwen’s Exhibit 9, and it was not admitted into evidence. Judicial notice was taken as to the proof of claim, Debtor’s schedules, and proposed chapter 13 plan. Debtor Judy Foster and Nichelle Jones, senior loan analyst in the law department for Ocwen, testified as witnesses

Debtor’s objection has two bases. Debt- or objects to the claim on the basis of a payment dispute. Debtor also asserts a legal argument that the claim should be disallowed because U.S. Bank National Association, as Trustee, for whom Ocwen now services the loan, is not the proper holder of the security deed under Georgia Law, O.C.G.A. § 14-5-7.

At the close of the hearing, the Court made an oral ruling that $1,744.20 of the claim representing escrow arrears will be disallowed. Debtor’s legal argument was taken under advisement. For the reasons set forth below, the remaining objection is OVERRULED. Additionally, Debtor’s confirmation hearing is rescheduled as ordered below.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(B). The Court has subject matter jurisdiction and venue is proper.

Findings of Fact

Debtor resides in the property that secures the claim at issue. The secured claim of U.S. Bank, N.A., as Trustee for TBW Mortgage-Backed Trust Series 2006-5, Mortgage Pass-Through Certificates, Series 2006-5 (“US Bank”) is currently serviced by Ocwen. The total claim amount is $154,614.27 with $16,266.53 in arrears. The loan servicing was transferred from Homeward Residential, Inc. to Ocwen in March 2013, and Homeward Residential, Inc. filed the proof of claim.

Debtor’s main contention regarding the disputed arrearage portion of the claim is that she entered into a mortgage modification with American Home Mortgage Servicing Inc. (“AMHSI”), as prior servicer. Debtor did not present any documentary evidence regarding the modification.

Nichelle Jones, senior loan analyst in the law department for Ocwen, testified about the difference in loan servicing software used by Homeward and Ocwen, and stated that she reviewed the computer files, including the “image files” from Homeward, on this loan in advance of the hearing. [200]*200Ms. Jones noted on cross examination that her review of the file included looking at the comments section of the loan history that is not included on Exhibit 8. Ms. Jones stated that nothing in the Ocwen comment log indicated that the mortgage had been modified. Ms. Jones also testified that at the time of the servicing transfer Homeward did not notify Ocwen of a modification or proposed modification.

Debtor testified that she has escrowed over $7,700, representing the purported modified monthly mortgage payments of $815.00, since she discovered there was a payment dispute with the mortgage company. Three money orders were admitted into evidence, each in the amount of $815.00, dated May 25, 2012, June 25, 2012, and July 25, 2012. The money orders were signed by Debtor and represented intended payments on her modified first mortgage. The May money order was made payable to AHMSI, and the June and July money orders were made payable to Homeward Residential.

Exhibit 8 is an automated loan payment history generated by Ocwen based on Homeward Residential’s records. The date range is from November 2009 to November 2012. The payment history shows a regular payment history through April 2011. The loan payment history documents how Debtor’s payments were applied, listing a transaction date, payment due date, and an effective date, which was described as the date the payment was received. Debtor began paying $815 per month in late August 2011, after a three-month period of non-payment. Exhibit 8 shows how the August 2011 $815 payment was partially applied to the May 2011 payment owing. Exhibit 8 also reflects that Debtor had made eight payments in the amount of $815 from August 29, 2011 to July 31, 2012. Ms. Jones explained how these $815.00 payments were applied as partial payments to the scheduled loan payments.

Debtor testified that she pays her insurance and property taxes directly and not through her mortgage. Exhibit’s 8 loan payment history includes a line item for an escrow advance on October 29, 2011, followed by another line item showing repayment of such escrow advance on November 20, 2011. No corresponding dollar amounts appear on the loan history document for these escrow entries, and Ms. Jones could not provide such amounts. Ms. Jones explained that amounts were not known from her personal knowledge of the account and not available on the payment loan history that was admitted into evidence. The proof of claim shows an escrow shortage or deficiency in the amount of $1,744.20 that is included in the arrearage figure on the proof of claim. Ms. Jones testified that the repayment of escrow advance would likely be based on double payment, yet this action occurred when the loan was serviced by Homeward. The escrow repayment entry occurred at a date after the proof of claim was filed.

Debtor’s legal argument regarding the defect in the chain of title includes two assignments of the security deed. On January 22, 2007, there was an assignment from Buckhead Mortgage Associates, Inc. to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Taylor, Bean & Whitaker Mortgage Corp., which was recorded on February 6, 2007 in the Henry Court records. (Ocwen’s Exhibit 2). The assignment was signed by Susan Loveday-Honea, Buckhead Mortgage Associates, Inc.’s attorney-in-fact in the presence of two witnesses and before a notary. The notary’s attestation on the face of the assignment includes that “Susan Loveday-Honea, who is personally known to me to be the Attorney-In-Fact, of the Corporation named herein; who, [201]*201being duly sworn by me, did state that said instrument was signed on behalf of said corporation pursuant to its by-laws or a resolution of its Board of Directors and that they acknowledge said instrument to be the free act and deed of said corporation.”

The second assignment was from MERS to U.S. Bank National Association, as Trustee for TBW Mortgage-Backed Trust Series 2006-5, Mortgage Pass-Through Certificates, Series 2006-5. It was executed on August 22, 2011 and recorded on August 29, 2011 (Ocwen’s Exhibit 3). This Assignment was signed by two Assistant Secretaries for MERS. This Assignment also included an unofficial witness and notary seal and signature.

Homeward Residential, Inc., as servicer, filed the proof of claim, naming U.S.

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Bluebook (online)
500 B.R. 197, 2013 WL 3766888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-homeward-residential-inc-ex-rel-us-bank-national-assn-in-re-ganb-2013.