In re Borin

461 B.R. 719, 2011 Bankr. LEXIS 4225, 2011 WL 5248310
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedNovember 2, 2011
DocketNo. DT 11-03122
StatusPublished

This text of 461 B.R. 719 (In re Borin) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Borin, 461 B.R. 719, 2011 Bankr. LEXIS 4225, 2011 WL 5248310 (Mich. 2011).

Opinion

OPINION AND ORDER

SCOTT W. DALES, Bankruptcy Judge.

I. INTRODUCTION

Chapter 13 Debtor Robert Borin (“Mr. Borin” or the “Debtor”) objects to the claim of his mortgagee, Arch Bay Holdings, LLC — Series 2010C (“Arch Bay”), on the grounds that the creditor’s Proof of Claim overstates the arrearage by failing to give him credit for prepetition payments. See Debtor’s Objection to the Proof of Claim Number 14-1 Filed By Arch Bay Holdings, LLC — Series 2010C (the “Objection,” DN 41). Arch Bay filed a written response (the “Response,” DN 53). The court conducted an evidentiary hearing on October 25, 2011 in Traverse City, Michigan.

[720]*720This Opinion and Order constitutes the court’s findings of fact and conclusions of law in accordance with Fed. R. Bankr.P. 7052 and 9014. For the following reasons, and to the extent described herein, the court will sustain the Debtor’s Objection to Arch Bay’s Proof of Claim.

II. JURISDICTION

The court has jurisdiction over the Debtor’s bankruptcy case pursuant to 28 U.S.C. § 1334. The case and this contested matter have been referred to the United States Bankruptcy Court pursuant to 28 U.S.C. § 157(a) and L.Civ.R. 83.2(a) (W.D. Mich.). An objection to claim is clearly a “core” proceeding within the meaning of 28 U.S.C. § 157(b)(2)(B), and the Supreme Court’s recent decision in Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), does not undermine this court’s authority to enter a final order. Indeed, by citing Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) and Langenkamp v. Culp, 498 U.S. 42, 44, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990), the high court recognized that non-tenured judicial officers may resolve disputes in the claims allowance process, including disputes “integral to the restructuring of the debtor-creditor relationship.” Stern, 131 S.Ct. at 2617. Accordingly, this Opinion and Order will be final, subject to appellate review under 28 U.S.C. § 158.

III. ANALYSIS

At the hearing on the Objection, the Debtor was the only witness. Arch Bay relied exclusively on the prima facie evi-dentiary effect of its Proof of Claim and offered no testimony or other evidence beyond the fact that it filed a Proof of Claim. See Fed. R. Bankr.P. 3001(f). The parties agreed that the Debtor bears the initial burden of rebutting the presumption of validity and amount of Arch Bay’s claim. They also agreed that if the Debtor succeeds in rebutting the presumption, Arch Bay must then shoulder the burden of proving its claim. See In re Weese, 428 B.R. 380 (Bankr.W.D.Mich.2010). Having the opportunity to judge the demeanor and credibility of Mr. Borin, the court concludes that he has rebutted the prima facie evidentiary effect of Arch Bay’s Proof of Claim to the extent provided in this Opinion.

In 1970, Mr. Borin purchased and developed a parcel of real estate in Mantón, Michigan which, on the petition date, included several improvements: a residence, a barn, and a guest house with apartment. The real estate is a 40-acre parcel where Mr. Borin has for many years operated a conference center. He is a counselor with a Masters degree in psychology who has developed his land, at least in part, as a family resort and healing environment for troubled children. See Exhibit A (brochure for “Borinville”). He also rents some of the outbuildings, from which the court infers that he uses the 40-acre property for commercial and residential purposes.

Beginning sometime in 2008, Mr. Borin suffered two unfortunate events that interfered with his ability to work and his otherwise stellar mortgage payment history. The guest house structure caught fire and, more dramatically, Mr. Borin broke his neck in five places when he was “T-boned” in a car accident. His injuries prevented him from working during the many months of convalescence. Understandably, confined in traction, he fell behind in making his payments to the lender, Citi-Mortgage, Inc. (“CitiMortgage”), who then held his note and mortgage. See Exhibits 1,1A & 2A (Proof of Claim).

After enduring these unfortunate injuries, Mr. Borin contacted the servicer for CitiMortgage about possible forbearance or modification of his payment schedule [721]*721under the note. In approximately August 2009, he applied for a loan modification and pursuant to oral direction from his mortgage servicer, he made payments in the reduced amount of $1,240.00, starting in September 2009 and continuing for 12 months. After making these payments for several months, he learned that the lender or its servicer had declined to modify his payment obligation, even though they accepted his reduced payments while his application for modification was pending, but before the servicer informed him that it had denied the request. Mr. Borin credibly testified that during this period the lender or its servicer was unresponsive to his request for information regarding the status of his modification or its reconsideration. He also admitted that, as a matter of fact, neither CitiMortgage, nor Arch Bay, nor any other servicer ever formally modified his repayment obligation (except to the extent they directed him to make reduced payments in the amount of $1,240.00 during the approval process).

As a result, he retained two different attorneys and a loan modification “expert” to assist him in resolving his payment situation with the lender. Unfortunately, the lawyers and modification expert were also unsuccessful in securing formal or documented modification of the loan. The testimony established that the lender or its agents ignored Mr. Borin’s efforts to communicate, directly and through professional advocates. Sometime in early 2010, when Arch Bay’s agent came to the property inquiring about selling it, Mr. Borin learned that the lender was in the process of foreclosing his interest. At that point, understandably frustrated, he filed a voluntary petition for relief under Chapter 13. Presently, his proposed Chapter 13 Plan remains unconfirmed, due in part to the pendency of this claim objection.

On July 18, 2011, Arch Bay timely filed its Proof of Claim (Claim No. 14) which recites that the total secured debt due from Mr. Borin is $313,188.61. This figure includes a $36,897.69 arrearage. Arch Bay attached a copy of the note and mortgage and two assignment documents to its Proof of Claim, together with a one-page itemization of the charges comprising the arrear-age.

The court finds, based upon Mr. Borin’s credible testimony and the documentary evidence submitted, that Arch Bay has overstated the arrearage and therefore its Claim. More specifically, the court finds that Arch Bay has failed to give Mr.

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Related

Katchen v. Landy
382 U.S. 323 (Supreme Court, 1966)
Langenkamp v. Culp
498 U.S. 42 (Supreme Court, 1991)
Stern v. Marshall
131 S. Ct. 2594 (Supreme Court, 2011)
Michigan National Bank v. Holland-Dozier-Holland Sound Studios
250 N.W.2d 532 (Michigan Court of Appeals, 1976)
In Re Dinsmore
141 B.R. 499 (W.D. Michigan, 1992)
In Re Weese
428 B.R. 380 (W.D. Michigan, 2010)
Rasch v. National Steel Corp.
177 N.W.2d 428 (Michigan Court of Appeals, 1970)

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Bluebook (online)
461 B.R. 719, 2011 Bankr. LEXIS 4225, 2011 WL 5248310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-borin-miwb-2011.