In re Channakhon

465 B.R. 132, 2012 WL 604139, 2012 Bankr. LEXIS 660
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedFebruary 24, 2012
DocketNo. 08-60826
StatusPublished
Cited by4 cases

This text of 465 B.R. 132 (In re Channakhon) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Channakhon, 465 B.R. 132, 2012 WL 604139, 2012 Bankr. LEXIS 660 (Ohio 2012).

Opinion

MEMORANDUM OPINION AND ORDER ON FIFTH THIRD MORTGAGE COMPANY’S OBJECTION TO THE TRUSTEE’S FINAL REPORT

JOHN E. HOFFMAN, JR., Bankruptcy Judge.

I. Introduction

The matter before the Court has its genesis in a notary public’s failure to certify a debtor’s acknowledgment of her signature on a mortgage, an all-too-common scenario that has resulted in numerous judicial opinions adjudicating the avoidability of mortgages based on so-called blank acknowledgments. But in this case the Chapter 7 trustee, Susan L. Rhiel (“Trustee”), and the holder of the mortgage (“Mortgage”), Fifth Third Mortgage Company (“Fifth Third”), resolved the avoidance issue eonsensually by means of an agreed order, so the Court has no occasion to add to this well-developed body of case law. Instead, this decision addresses the Trustee’s contention that, by failing to file an unsecured proof of claim within 30 days after the agreed order became final, Fifth Third forfeited its right to participate in the distribution that the Trustee will be making to unsecured creditors.

The Court concludes that Fifth Third may receive a dividend. Fifth Third timely filed a secured proof of claim on account of the Mortgage and associated promissory [135]*135note (“Note”) in what was then the Chapter 13 case of Tony Channakhon and Pha-suree Channakhon.1 After the Debtors’ case was converted to Chapter 7, the Trustee commenced an adversary proceeding against Fifth Third and negotiated an agreed order avoiding the Mortgage to the extent it encumbered Phasuree’s one-half interest in the Debtors’ residential real property (“Property”). See Adv. Pro. No. 10-2241, Doc. 27. According to the Trustee, the finality of the agreed order triggered the 30-day period set forth in Rule 3002(c)(3) of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule(s)”) for filing unsecured claims that arise from judgments avoiding interests in property and, because Fifth Third failed to file such a claim within the required time, it is barred from receiving a dividend. Fifth Third, however, had already timely filed a secured proof of claim and later, in response to the Trustee’s final report (“Final Report”) (Doc. 143), filed a proper amendment that converted the secured claim into a partially unsecured one. Furthermore, equitable factors favor permitting the amendment. The Court, therefore, holds that Fifth Third may receive a distribution from the funds held by the Trustee.

II. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the general order of reference entered in this district. This is a core proceeding. 28 U.S.C. § 157(b)(2).

III. Factual and Procedural Background

The Debtors commenced this case on November 3, 2008 by filing a petition for relief under Chapter 13 of the Bankruptcy Code. Because the date established for the meeting of creditors under 11 U.S.C. § 341(a) was December 23, 2008, see Doc. 7, the general deadline for all creditors (except governmental units) to file proofs of claim was March 23, 2009. See id.; Fed. R. Bankr.P. 3002(c) (“In a ... chapter 13 individual’s debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.... ”). Fifth Third met this deadline when, on November 17, 2008, it filed a secured proof of claim (Claim No. 3-1) in the amount of $151,184.02 on account of the Note and the Mortgage.

Because this matter would not be before the Court if the Debtors’ case had continued in Chapter 13 or if it had become a no-asset Chapter 7, the Court will briefly describe how it developed into an asset case. Although their Chapter 13 plan was confirmed, the Debtors fell behind on their plan payments, resulting in an order (Doc. 43) dismissing the case upon the motion of the Chapter 13 trustee. The Debtors then filed a motion (Doc. 47) requesting that their case be reinstated solely for the purpose of converting it to Chapter 7. The Chapter 13 trustee did not oppose the motion, and the Court entered an agreed order (Doc. 48) providing for the reinstatement and conversion of the case, which occurred on February 23, 2010.

Although a deadline of July 6, 2010 was established for filing proofs of claim in the Debtors’ Chapter 7 case, see Fed. R. Bankr.P. 1019(2)(A) (stating, with exceptions not applicable here, that “[w]hen a ... chapter 13 case has been converted ... to a chapter 7 case_[a] new time period for filing a ... claim ... shall commence under [Bankruptcy Rule] [136]*1363002”), the proof of claim that Fifth Third had filed while the case was pending in Chapter 13 was deemed filed in the Chapter 7 case after conversion. See Fed. R. Bankr.P. 1019(3) (“When a ... chapter 13 case has been converted ... to a chapter 7 case ... [a]ll claims actually filed by a creditor before conversion of the case are deemed filed in the chapter 7 case.”). Accordingly, Fifth Third did not need to file another proof of claim before the new claims bar date, nor did it do so.

It makes no difference whether a creditor has asserted an unsecured claim in a case converted to Chapter 7 if the trustee has no assets to distribute. But the filing of an unsecured proof of claim matters if the case develops into one in which there is property available to be distributed to unsecured creditors. That is what happened here. After partially avoiding the Mortgage by an agreed order entered on March 29, 2011, see Adv. Pro. No. 10-2241, Doc. 27, the Trustee obtained an order authorizing her to sell the Property. One-half of the net sale proceeds were to be paid to Fifth Third on account of the Mortgage to the extent it encumbered Tony’s interest (which was not avoided) and the “remaining net proceeds [were to be] used by the Trustee for payment of allowed administrative and unsecured claims of the estate.” Doc. 137. The order did not include a provision regarding any unsecured claim of Fifth Third that arose upon the partial avoidance of the Mortgage. On July 28, 2011, the Trustee filed a report of sale stating that she had sold the Property for $155,000. See Doc. 141.

Approximately one month later, on August 24, 2011, the Trustee filed the Final Report. Fifth Third filed an objection (“Objection”) (Doc. 147) to the Final Report, and the Trustee filed a response (“Response”) (Doc. 149) to the Objection. On October 20, 2011, Fifth Third filed an amended unsecured proof of claim (Claim No. 3-2) in the amount of $86,827.74 on account of amounts due under the Note.

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Cite This Page — Counsel Stack

Bluebook (online)
465 B.R. 132, 2012 WL 604139, 2012 Bankr. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-channakhon-ohsb-2012.