In re Ausburn

524 B.R. 816, 2015 Bankr. LEXIS 426, 2015 WL 546084
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedFebruary 10, 2015
DocketCASE NO.: 4:14-bk-16153
StatusPublished
Cited by5 cases

This text of 524 B.R. 816 (In re Ausburn) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ausburn, 524 B.R. 816, 2015 Bankr. LEXIS 426, 2015 WL 546084 (Ark. 2015).

Opinion

MEMORANDUM OPINION

RICHARD D. TAYLOR, UNITED STATES BANKRUPTCY JUDGE

Before the court is an Amended/Modified Motion to Determine Violation of the Automatic Stay, and Motion to Void the Sale of Property (“Amended Motion”) filed by Fred Ausburn and Janet L. Ausburn, the debtors (“debtors”), on December 1, 2014, at docket entry 18, and a Response to Amended/Modified Motion to Determine Violation of the Automatic Stay, and Motion to Void the Sale of Property (“Response”) filed by First Security Bank (“FSB”) on December 12, 2014, at docket entry 23. The court heard the Amended Motion and Response on December 17, 2014.

In their Amended Motion, the debtors allege that FSB judicially foreclosed on and subsequently held a commissioner’s sale of their home in violation of the automatic stay. The debtors further contend that their home is property of the estate, and they intend on curing the outstanding arrearage in their Chapter 13 plan. FSB counters that the home is not property of the debtors’ estate because the debtors’ statutory and equitable rights of redemption terminated prepetition. Additionally, FSB argues that since .the home is not property of the estate, the debtors have no right under the United States Bankruptcy Code (“Code”) to cure an arrearage pursuant to 11 U.S.C. § 1322(c). At the conclusion of the hearing, the court gave the parties an opportunity to brief the issues presented and took the matter under advisement on January 10, 2015. For the reasons stated below, the Amended Motion is granted, and the postpetition foreclosure sale of the debtors’ home is void ab initio.

[818]*818I. Jurisdiction

This court has jurisdiction over this matter under 28 U.S.C. §§ 1334 and 157. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), and (0). The following opinion constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052 made applicable to this proceeding under Federal Rule of Bankruptcy Procedure 9014.

II. Background

At the hearing, the debtors and FSB stipulated to the following facts:

1976. The [debtors] originally purchased the home located at 725 Forest Lane in Benton, Arkansas, in 1976 for $34,500.00. The loan was financed by Benton Savings and Loan Association.
January 20, 1988. The [debtors] refinanced their home with Benton Savings and Loan with a note and mortgage amount of $68,300.00 (hereinafter referred to as the “Loan”). [FSB] is the successor in interest to Benton Savings and Loan Association, later known as the Union Bank of Benton. The [debtors] waived their statutory right of redemption pursuant to the terms of the mortgage.
February 4, 2011. The [debtors] took out a second mortgage on their home from Regions bank for $51,959.00.
March 11, 2011. The [debtors] obtained a Modification of their Mortgage on the [FSB] Loan indicating a maturity date of May 1, 2018. (See Exhibit # 1— Modification of Mortgage.)
September 6, 2011. [FSB] filed a Complaint for Foreclosure and Other Relief in Saline County, Arkansas Circuit Court Case No. CV 2011-661 (hereinafter referred to as the “Foreclosure Action”), with the [debtors] and Regions Bank listed as Defendants. The [debtors] were approximately $1,968.00 past due at the time. The last payment made by the [debtors] was the June 1, 2011 payment. (See Exhibit # 2 — Complaint for Foreclosure.)
October 12, 2011. [FSB] and the [debtors] enter into a Settlement Agreement and Release in the Foreclosure Action whereby the [debtors] are permitted to pause the foreclosure, requiring, among other things, that the loan is made current and attorneys’ fees are paid. (See Exhibit # 3 — Settlement Agreement and Release.) [FSB] and the [debtors] sign an Agreed Order Granting Decree of Foreclosure. (See Exhibit # 4 — Agreed Order Granting Decree of Foreclosure.) Pursuant to the terms of the Settlement Agreement and Release, the [debtors] and [FSB] agree that the Foreclosure Action will remain open but dormant, and that if the [debtors] default on the terms of the Settlement Agreement and Release, the Agreed Order Granting Decree of Foreclosure will be submitted for entry and the Foreclosure Action restarted.
July 2014. The [debtors] defaulted on the Settlement Agreement and Release by becoming delinquent on their payments to [FSB]. The [debtors] also became delinquent on their mortgage to Regions Bank.
October 21, 2014. In accordance with the terms and conditions of the Settlement Agreement and Release, the Agreed Order Granting Decree of Foreclosure is submitted to the Saline County Circuit Court for entry. The [debtors] are notified that the Decree is being submitted for entry.
October 28, 2014. The Agreed Order Granting Decree of Foreclosure is entered by the Saline County Circuit Court. (See Exhibit #4 — Agreed Order Granting Decree of Foreclosure.) The foreclosure sale is set for November 18, 2014. The [debtors] did not redeem [819]*819the property either before or after entry of the Agreed Order Granting Decree of Foreclosure.
November 17, 2014. The [debtors] filed Chapter 13 bankruptcy, Case #4:14-bk-16153, at 2:36 p.m. A notice of filing bankruptcy was filed in the Saline County Circuit Court at 3:33 p.m. (See Exhibit # 5 — Notice of Filing Bankruptcy filed in Circuit Court.)
November 18, 2014. The [debtors] filed an Emergency Motion to Set Aside/Cancel Sale of property at 9:52 a.m. in Bankruptcy Court. A telephone hearing was held at 10:45 a.m. with [the court], [FSB’s] attorney Gary Jiles, and [debtors’ attorney Beverly Brister. [The court] declines to have a hearing on the merits on this state court matter.
November 18, 2014. The [debtors’] home was sold to Regions Bank at a Commissioner’s Sale at 11:00 a.m.
December 3, 2014. The Order of Confirmation of the sale and the Commissioner’s Report of sale were filed. (See Exhibits # 6 — Order and # 7 — Report.) These items were docketed on December 11, 2014. Regions Bank remitted $34,000.00 to Saline County Circuit Clerk. (See Exhibit # 8 — Clerk’s Receipt.)
December 10, 2014. [FSB] submitted an Order of Distribution for the funds, with a distribution amount of $26,724.49. This Order has not been entered. (See Exhibit # 9.)

In addition to the above agreed facts, the debtors and FSB stipulated to the entry of the nine exhibits referenced in the agreed facts.

III. Discussion

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marie King
E.D. Arkansas, 2020
In re Lieber
600 B.R. 408 (N.D. Iowa, 2019)
Farmers Bank & Trust Co. v. Wells (In re Wells)
536 B.R. 264 (E.D. Arkansas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
524 B.R. 816, 2015 Bankr. LEXIS 426, 2015 WL 546084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ausburn-areb-2015.