In re: Angela E. Sanders

CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedDecember 18, 2024
Docket24-1025
StatusUnpublished

This text of In re: Angela E. Sanders (In re: Angela E. Sanders) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re: Angela E. Sanders, (bap9 2024).

Opinion

FILED DEC 18 2024 SUSAN M. SPRAUL, CLERK NOT FOR PUBLICATION U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. NC-24-1025-CBG ANGELA E. SANDERS, Debtor. Bk. No. 16-40374

ANGELA E. SANDERS, Appellant, v. MEMORANDUM* FAY SERVICING, LLC; US BANK TRUST, NA, not in its individual capacity but solely as owner trustee for VRMTG Asset Trust, Appellees.

Appeal from the United States Bankruptcy Court for the Northern District of California Charles D. Novack, Bankruptcy Judge, Presiding

Before: CORBIT, BRAND, and GAN, Bankruptcy Judges.

* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. INTRODUCTION

Chapter 131 debtor Angela E. Sanders (“Sanders”) appeals the

bankruptcy court’s order granting appellees’ motion for summary

judgment determining that Sanders was not post-petition current on her

mortgage when she completed her chapter 13 plan payments pursuant to

Rule 3002.1. Sanders also appeals the bankruptcy court’s denial of her

motion to reconsider the summary judgment order. Because the

bankruptcy court did not err in granting summary judgment or abuse its

discretion in denying the motion to reconsider, we AFFIRM.

FACTS2

On March 27, 1995, Sanders and her husband executed a fixed rate

note in the amount of $172,000.00 secured by a deed of trust (together, the

“Loan”) encumbering certain real property on Napa Avenue in Rodeo,

California.

Since its origination, the holder and servicer of the Loan have

changed many times. 3 US Bank is the current holder of the Loan and Fay

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 2 We exercise our discretion to take judicial notice of the docket and documents filed in Sanders’s underlying bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 3 From Prudential Home Mortgage Co., the original lender, the Loan was

transferred to Norwest Mortgage on July 20, 1996, then transferred to Wells Fargo Bank

2 Servicing, LLC currently services the Loan on behalf of US Bank.

A. Sanders’s chapter 13 bankruptcy.

Sanders filed a chapter 13 bankruptcy petition on February 11, 2016.

Sanders’s fifth amended plan was confirmed on July 8, 2016. It was a cure-

and-maintain plan, meaning that the payments to cure Sanders’s $39,092.21

prepetition mortgage arrears would be paid through the chapter 13 trustee

(“Plan Payments”) and Sanders’s ongoing post-confirmation monthly

payments to maintain the mortgage would be made directly to the Creditor

(“Maintenance Payments”).

During the course of her bankruptcy, Sanders was rarely in

compliance. Indeed, the chapter 13 trustee filed sixteen motions to dismiss

based on Sanders’s failure to timely make Plan Payments. Although each of

the trustee’s motions was eventually withdrawn, they demonstrated

Sanders’s persistent untimeliness. Sanders was even less consistent with

her Maintenance Payments.

The record demonstrates that Sanders’s failure to make her

Maintenance Payments began shortly after filing her bankruptcy petition

and well before the onset of COVID-19. As of June 5, 2020, the Creditor

N.A. (“Wells Fargo”) on December 5, 2008, then transferred to Specialized Loan Servicing (“SLS”) on February 12, 2019, and finally transferred to US Bank Trust, NA, not in its individual capacity but solely as owner trustee for VRMTG Asset Trust (“US Bank”) on April 2, 2021. Because the Loan was transferred multiple times during Sanders’s bankruptcy case, we refer to the holder and servicer of the Loan at the applicable time as “the Creditor.” 3 presented evidence that Sanders was past due in post-petition mortgage

payments in the amount of $38,324.28. According to the Creditor’s

accounting, which was consistent with the evidence Sanders presented,

Sanders made 11 of her 12 monthly mortgage payments in 2016 and 2017.

Sanders made seven monthly payments in 2018, four in 2019, one payment

in 2020, and no Maintenance Payments thereafter.

B. The pandemic and Sanders’s modified plan.

On March 5, 2021, the bankruptcy court confirmed Sanders’s

modified plan which extended the plan’s term to 84 months 4 and

acknowledged a 12-month temporary COVID-19 forbearance of Sanders’s

Maintenance Payments. The modified plan provided in ¶ 5.03, titled

“Additional Sections and Corrections under Secured Claims,” a reference

to new ¶ 2.04(c) which added the following provision:

The Debtor has requested and received a 12-month COVID-19 Mortgage Forbearance, under the Coronavirus Aid, Relief, and Economic Security Act, (or the “Cares Act”) which started on July 10, 2020, and shall conclude, 12 months following, July 10, 2020; therefore, the Debtor is not required to make post-petition monthly, mortgage/home loan payments at this time. Post-

4Under current law, the maximum duration of a chapter 13 plan is five years from the due date of the first plan payment. In March 2020, Congress amended § 1329 through the Coronavirus Aid, Relief, and Economic Security Act (“the CARES Act”) by adding subsection (d) which allowed chapter 13 debtors who were experiencing financial hardship due to the COVID-19 pandemic to modify confirmed plans by (among other things) extending the life of the plan to seven years. § 1329(d)(2). The subsection was not a permanent addition and it automatically expired one year later. § 1329(d) repealed by Pub.L. 116-136, Div. A, Title I, § 1113(b)(2)(A)(iii), Mar. 27, 2020, 134 Stat. 312. 4 petition monthly, mortgage/home loan payments shall only be tendered in accordance/by law under the Coronavirus Aid, Relief, and Economic Security Act, (hereinafter, “Cares Act”); and in conjunction with, if any, other applicable state/federal laws, and/or upon Order of the Court, if required.

Modified Plan, Bk. Dkt. No. 187 (errors in original).

Although the forbearance was only 12 months, Sanders treated the

initial forbearance as limitless and made no further Maintenance Payments

after January 2020.

C. Trustee’s notice of final cure mortgage payment under Rule 3002.1.

Sanders cured her prepetition arrears by completing all Plan

Payments to the trustee in October 2022. On November 2, 2022, the trustee

filed a notice of final cure mortgage payment under Rule 3002.1(f) which

stated that Sanders had completed her Plan Payments and fully cured the

Loan’s prepetition arrears of $39,092.21.

1. Creditor’s Rule 3002.1(g) response.

The Creditor timely filed a response under Rule 3002.1(g). The

Creditor concurred that Sanders had cured her prepetition arrears but

notified the trustee that Sanders was delinquent on her post-petition

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In re: Angela E. Sanders, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-angela-e-sanders-bap9-2024.