In re Addams

564 B.R. 458, 77 Collier Bankr. Cas. 2d 537, 2017 Bankr. LEXIS 641
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 9, 2017
DocketCase No.: 8-15-75191-AST
StatusPublished
Cited by8 cases

This text of 564 B.R. 458 (In re Addams) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Addams, 564 B.R. 458, 77 Collier Bankr. Cas. 2d 537, 2017 Bankr. LEXIS 641 (N.Y. 2017).

Opinion

MEMORANDUM OPINION TO DISMISS CHAPTER 13 CASE

Alan S. Trust, United States Bankruptcy Judge

Pending before the Court is a motion filed by Michael and Jamie Shapiro (the “Shapiros”), seeking to dismiss Debtor’s, Mary C. Addams, chapter 13 case (the “Motion to Dismiss”). The Shapiros hold a second mortgage lien against Debtor’s two-family property used as her primary residence, and claim Debtor. cannot confirm a feasible plan. During the course of proceedings on the Motion to Dismiss, Debtor filed papers requesting this Court determine the use and value of her residence and bifurcate the Shapiros’ claim arising from their second mortgage into secured and unsecured portions (the “Valuation Request”). While the parties acknowledge that the value of the property exceeds the balance owed on Debtor’s first mortgage lien, and that the amount owed on the Shapiros’ second mortgage lien exceeds the remaining value of the property, Debtor asserts she can bifurcate the Sha-piros’ claim on the basis of her residence being a two-family home from which she derives rental income, and that by bifurcating she can confirm a feasible plan. Debtor also acknowledges that she cannot confirm her plan if she is unable to bifurcate the Shapiros’ claim.

Thus, the primary issue is whether Debtor may invoke 11 U.S.C. §§ 506,1322, and 1325 to value the residence and bifurcate the Shapiros’ claim into secured and unsecured portions, or whether bifurcation is prohibited by § 1322(b)(2), which provides that a chapter 13 plan may not modify the rights of a holder of a claim secured only by a security interest in real property that is the debtor’s principal residence.1 The secondary issue, if bifurcation is possible, is the precise value of the property, as the valuation would bear on the amount of the Shapiros’ secured claim and feasibility of the plan.

[460]*460Because the Court has determined that pursuant to the Bankruptcy Code, bifurcation is prohibited under the facts here, and as Debtor’s plan is therefore not confirma-ble, valuation is irrelevant, and the Motion to Dismiss should be granted.

Jurisdiction

This court has jurisdiction over this core proceeding pursuant to 28 U.S.C. ' §§ 157(b)(2)(A) and 1384(b), and the Standing Orders of Reference in effect in the Eastern District of New York dated August 28, 1986, and as amended on December 5, 2012, but made effective nunc pro tunc as of June 23, 2011.

Findings of Fact and Conclusions of Law

This decision constitutes the Court’s findings of fact and conclusions of law in accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure.

Factual Background and Procedural History2

The Bankruptcy Petition

On November 30, 2015, Debtor filed for relief under chapter 13 under the Bankruptcy Code. In her Schedules, she listed her primary residence as 225 Thompson Shore Road, Manhasset, New York (the “Thompson Property”), encumbered by a first mortgage owed to Chase Mortgage in the amount of $531,000, and the Shapiros’ second mortgage in the amount of $435,000. Debtor initially listed the value of the Thompsbn Property at $825,000, but later revised the value downward to $787,000. See Schedules A, D and Amended Schedule A. [dkt items 1, 17] In her Amended Schedule A, Debtor identified the Thompson Property as a “Duplex or multi-unit building.” See Amended Schedule A. [dkt item 17]

The Shapiros’ Relationship with Debtor

While the parties have peripheral disagreements as to the history of their relationship and course of dealing, the relevant aspects are not in material dispute. Prior to the commencement of this case, the Shapiros were friends of Debtor, and during the course of that friendship, Debtor borrowed money from the Shapiros to help her buy the Thompson Property. Because she had school-aged children and was in the midst of a divorce, Debtor desired to purchase the Thompson Property in order to remain in her children’s school district. Debtor was also attracted to the Thompson Property because it was a two-family home, and- she believed she could make mortgage payments by renting out a portion of the house; however, she could not qualify for a conventional mortgage to pay the $850,000 purchase price. Thus, the Shapiros loaned Debtor $265,000 to help her with the purchase (the “Loan”); this Loan was evidenced by a promissory note dated April 7, 2006 (the “Note”), and was secured by a second lien mortgage of the same date (the “Mortgage”). The Note provided the Loan was due within six months or upon the sale of the Thompson Property; the priority of these events was not specified in the Note. The five-page Mortgage provides: “This real property is or will be improved by a one or two family residence or dwelling only,” and contains a boiler-plate assignment of “rents, issue and profits” as “further security” for payment of the Note.

Debtor defaulted on the Loan. The Sha-piros commenced a foreclosure action against her in New York Supreme Court, Nassau County, on August 10, 2010, which resulted in the Shapiros obtaining a Judgment of Foreclosure and Sale on August 6, 2015 in -the sum of $436,365, plus interest, [461]*461attorneys’ fees, costs and other disbursements. The foreclosure sale of the Thompson Property was scheduled for December 1, 2015, and Debtor filed this case on the eve of that sale.

Debtor’s Proposed Chapter 13 Plans

On December 29, 2015, Debtor filed her initial chapter 13 plan (the “Plan”), [dkt item 14] The Plan provided, inter alia, that the Shapiros’ claim would be valued and treated as a secured claim of $256,000 pursuant to § 506(a) with the balance of about $180,000 treated as an unsecured claim. Debtor further stated an intention to refinance and pay out the $256,000 in full settlement and satisfaction of the secured portion of the Shapiros’ claim; the unsecured portion would receive pro rata treatment with other unsecured claims.

On March 2, 2016, the Chapter 13 Trustee filed a motion to dismiss Debtor’s case (the “Trustee’s Motion to Dismiss”), [dkt item 23] Among the reasons set forth in the Trustee’s Motion to Dismiss was her contention that “the Debtor has not commenced and [sic] adversary proceeding or any other action to determine the extent of the lien held by Shapiro. Additionally, the Plan is speculative in nature in that, assuming the Debtor is successful in bifurcating the Shapiro mortgage, the Debtor will be able to obtain financing to satisfy the remaining secured portion as proposed in the Plan.”

In an effort to address the Trustee’s Motion to Dismiss, on March 11, 2016, Debtor filed an amended chapter 13 plan (the “Amended Plan”), along with additional documents, [dkt items 24, 26, 28] The Amended Plan provided, inter alia, that the Shapiros’ claim would be “modified and valued” and treated as a secured claim of $259,000 pursuant to §§ 506(a) and 1322(b)(2) with the balance of about $177,000 treated as an unsecured claim.

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Cite This Page — Counsel Stack

Bluebook (online)
564 B.R. 458, 77 Collier Bankr. Cas. 2d 537, 2017 Bankr. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-addams-nyeb-2017.