Frank J. Peta, Jr.

CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedFebruary 10, 2021
Docket19-13264
StatusUnknown

This text of Frank J. Peta, Jr. (Frank J. Peta, Jr.) 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
Frank J. Peta, Jr., (Pa. 2021).

Opinion

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF PENNSYLVANIA In re: : Chapter 13 Frank J. Peta, Jr., : Debtor. : BankruptcyNo.19-13264-MDC MEMORANDUM I. INTRODUCTION

Before the Court are two matters (together, the “Contested Matters”) for resolution in the bankruptcy case of Frank J. Peta, Jr. (the “Debtor”): (i) the motion of Tompkins VIST Bank f/k/a Allegiance Bank of North America (the “Bank,” and together with the Debtor, the “Parties”) for relief from the automatic stay (the “Stay Relief Motion”)1 to move forward with foreclosure proceedings with respect to the Debtor’s home (the “Property”); and (ii) the Debtor’s objection (the “Claim Objection”)2 to the Bank’s proof of claim in the instant bankruptcy case. The Parties have briefed the issues with respect to the Contested Matters, and the Court held a hearing (the “Hearing”) on February 24, 2020. For the reasons stated herein, the Court will (i) overrule in part and sustain in part the Claim Objection, and (ii) deny in part and hold in abeyance in part the Stay Relief Motion.

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND A. The Debtor’s Prior Bankruptcy Cases The Debtor filed a petition under chapter 13 of the Bankruptcy Code, 11 U.S.C. §§101, et seq., on May 21, 2019.3 It is the Debtor’s fourth bankruptcy case. His first chapter 13 case, filed

1 Bankr. Docket No. 31. 2 Bankr. Docket No. 69. 3 Bankr. Docket No. 1. on September 5, 2013, was dismissed roughly one month later, on October 16, 2013, for failure to file required documents.4 His second chapter 13 case, filed on August 27, 2014, was dismissed after approximately six months, on February 12, 2015, for failure to appear at the meeting of creditors pursuant to §341 of the Bankruptcy Code and for failure to maintain plan payments.5 In the Debtor’s second case he sought confirmation of his proposed plan, which was

denied.6 The Debtor’s third chapter 13 case, filed on March 24, 2015, was dismissed after nearly four years, on January 10, 2019, for failure to maintain plan payments.7 Unlike in his prior two cases, the Debtor did obtain confirmation of his plan in his third case, on September 28, 2017.8 B. The Bank’s Proof of Claim and Stay Relief Motion The Bank issued a home equity line of credit (the “Loan”) in the amount of $100,000 to the Debtor and his non-debtor spouse on December 26, 2007, secured by a second mortgage on the Property. On December 13, 2013, after the dismissal of the Debtor’s first bankruptcy case but before initiation of his second case, the Bank filed a mortgage foreclosure action (the “Foreclosure Action”) in the Court of Common Pleas for Montgomery County, Pennsylvania.

On May 16, 2014, the Bank obtained a default judgment against the Debtor in the amount of $111,988.40 (the “Default Judgment”). The Montgomery County Sheriff’s sale of the Property (the “Sheriff’s Sale”) was to occur on August 27, 2014, but the Debtor filed his second bankruptcy case on the same day. The Sheriff’s Sale was continued upon the Bank’s motions in the Foreclosure Action, and although the Debtor’s second bankruptcy case was subsequently dismissed on February 12, 2015, the Sheriff’s Sale did not occur prior to the Debtor filing his 4 Case No. 13-17716, Bankr. Docket No. 10. 5 Case No. 14-16847, Bankr. Docket No. 44. 6 Case No. 14-16847, Bankr. Docket No. 41. 7 Case No. 15-11988, Bankr. Docket No. 166. 8 Case No. 15-11988, Bankr. Docket No. 140. third bankruptcy case on March 24, 2015. Upon the Bank’s motions in the Foreclosure Action, the Sheriff’s Sale was again repeatedly continued throughout the pendency of the Debtor’s third bankruptcy case until its dismissal on January 10, 2019. In the instant case, the Bank filed a Proof of Claim on July 29, 2019 (the “Claim”),9 asserting a secured claim of $194, 337.89. The Claim asserts that the amount necessary to cure

the default as of the Petition Date was $126,922.27, consisting of $24,778.50 in principal and interest, $2,183.52 in late fees, $725.00 in escrow advances, and $99,235.25 in attorneys’ fees and costs. Attached as exhibits to the Claim are an account activity statement for the Loan reflecting payments made and fees assessed, as well as a billing ledger (the “Billing Ledger”) from the Bank’s counsel for legal fees from April 3, 2015 to May 6, 2019, totaling $75,588.00, with handwritten notations that the total amount reflected did not include $19,822.00 in attorney fees due “prior to Lien Report” or $3,825.25 in total prepetition costs. On August 26, 2019, the Bank filed the Stay Relief Motion. The Bank asserted that the Debtor had not made post-petition payments due in June, July, and August 2019. The Bank

argued that the Debtor’s “serial pre- and post-petition defaults and multiple abuses of the United States Bankruptcy Code” warranted granting relief from the automatic stay to permit the Bank to exercise its state law rights with respect to the Property.10 The Bank further argued that the Debtor’s failure to make post-petition payments on the Loan resulted in a lack of adequate protection of the Bank’s interest in the Property.11 The Bank also argued that the Debtor’s non- payment in the present case as well as his prior bankruptcy cases constituted a scheme to “delay, hinder, or defraud the Bank” warranting relief from stay pursuant to §362(d)(4) of the 9 Proof of Claim No. 6. 10Stay Relief Motion, at ¶18. 11Id. at ¶¶20 to 21. Although the Stay Relief Motion did not so state, the Bank subsequently confirmed at the Hearing that it was moving for relief pursuant to §362(d)(1). Hearing Audio Transcript, at 2:04 p.m. Bankruptcy Code, as well as an order that the stay relief granted to the Bank would be binding in any subsequent case filed by the Debtor for a two year period. After the Debtor submitted a general denial of the allegations in the stay relief motion,12 the Parties submitted memoranda of law in support of their positions on December 3, 2019. The Bank’s memorandum focused almost exclusively on its argument that the Debtor’s prior

bankruptcy cases and default on his post-petition payments in this case warrants stay relief that would be binding in any subsequent case filed by the Debtor for two years, pursuant to §362(d)(4).13 The Debtor’s memorandum argued that stay relief is not warranted because the Debtor’s proposed plan seeks to cure the pre-petition arrears under the Loan and pay the Bank directly with respect to post-petition payments.14 The Debtor also asserted that the proposed plan adequately protects the Bank’s interest and that he was making timely post-petition payments. C. The Claim Objection On September 5, 2019, the Debtor filed the Claim Objection. In the Claim Objection, the

Debtor objected to the Bank’s Claim on the following grounds: (i) the Bank failed to provide sufficient documentation for the fees and costs asserted; (ii) the fees and costs asserted were not actual and are unreasonable; (iii) the Bank is improperly attempting to collect post-judgment

12 Bankr. Docket No. 45. 13 Bankr. Docket No. 61. 14 Bankr. Docket No. 64. The Debtor also argued that stay relief was not warranted under §362(d)(2) because the Debtor has equity in the Property, which the Debtor valued at $481,160.00, and the Property is necessary for an effective reorganization because it is the Debtor’s residence. As noted above, however, the Bank moved for relief from stay pursuant to §362(d)(1), based on lack of adequate protection, not §362(d)(2).

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