In re Culpepper

481 B.R. 650, 2012 WL 5395935, 2012 Bankr. LEXIS 5192
CourtUnited States Bankruptcy Court, D. Oregon
DecidedNovember 5, 2012
DocketNo. 09-38599-rld7
StatusPublished
Cited by4 cases

This text of 481 B.R. 650 (In re Culpepper) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Culpepper, 481 B.R. 650, 2012 WL 5395935, 2012 Bankr. LEXIS 5192 (Or. 2012).

Opinion

MEMORANDUM OPINION

RANDALL L. DUNN, Bankruptcy Judge.

On October 5, 2012, I received evidence and heard testimony and argument at the hearing (“Hearing”) on debtor Linda Marie Culpepper’s (“Ms. Culpepper”) Motion for Order of Contempt (“Contempt Motion”) against Wells Fargo Bank, N.A. (“Wells Fargo”), and Wells Fargo’s related motion for summary judgment (“Summary Judgment Motion”).1 At the conclusion of the Hearing, I took the matters under advisement.

In deciding the matters before me, I have considered carefully the testimony presented and the exhibits admitted at the hearing, as well as arguments presented, both in legal memoranda and orally. I further have taken judicial notice of the docket and documents filed in Ms. Culpepper’s main chapter 7 case, Case No. 09-38599-rld7 (“Main Case”), for the purpose of confirming and ascertaining facts not reasonably in dispute. Federal Rule of Evidence 201; In re Butts, 350 B.R. 12, 14 n. 1 (Bankr.E.D.Pa.2006). In addition, I have reviewed relevant legal authorities, both as cited to me by the parties and as located through my own research.

In light of that consideration and review, this Memorandum Opinion sets forth the court’s findings of fact and conclusions of law under Civil Rule 52(a), applicable with respect to this contested matter under Rules 7052 and 9014.

Factual Background

“What we’ve got here is failure to communicate.” Spoken by Strother Martin as Captain, Road Prison 36 in the movie Cool Hand Luke.

Ms. Culpepper filed the Contempt Motion seeking declaratory and injunctive relief; damages; sanctions; and attorneys fees for Wells Fargo’s alleged violations of the injunction against efforts to collect discharged debts in § 524(a)(2). The subject debt was Ms. Culpepper’s obligation to pay a promissory note (“Note”), dated September 20, 2005, in the original principal amount of $448,000 and secured by a deed of trust (“Trust Deed”) on Ms. Culpepper’s residence property (“Residence Property”) in Bend, Oregon. See Exhibits A and B. The Note identified the Lender as World Savings Bank, FSB (‘World Savings Bank”). Through a series of transactions, the details of which are not relevant to resolution of the matters before me, World Savings Bank has been integrated into Wells Fargo.2

Contrary to my assumptions going into the Hearing, the loan (“Loan”) documented by the Note was originated as a “portfolio loan.” That is, the Loan was made by World Savings Bank for its own account with the intent that it would be retained in its loan portfolio rather than being securitized and sold in the secondary investment market. Accordingly, the Note was never sold or assigned. Mr. Michael [653]*653Dolan, a litigation support manager for Wells Fargo who worked for World Savings Bank from 1984 until 2007, when its name was changed to Wachovia, testified that the Loan was made to combine and refinance a first trust deed home finance loan and a home equity loan that Ms. Culpepper had borrowed from World Savings Bank. Mr. Dolan further testified that at the time the Loan was made, Ms. Cul-pepper had always paid her obligations to World Savings Bank on time and had an exceptionally good FICO score.

Unfortunately, due to economic reverses resulting from the recession and health issues impacting her husband,3 hard times ensued for Ms. Culpepper. At some point, Ms. Culpepper ceased making payments on the Note obligation, and on October 19, 2009, she filed a petition for relief under chapter 7.

In her schedules, Ms. Culpepper valued the Residence Property at $300,000 on the date of her bankruptcy filing and stated that she owed $496,508 on the secured Note. See Exhibit C. Her schedules reflected a substantial decrease in income. See Schedule I and Statement of Financial Affairs, Item 1, Main Case Docket No. 1. In her Statement of Intention(s) (“Statement of Intent”), Ms. Culpepper indicated that she intended to surrender the Residence Property. See Main Case Docket No. 1. Mr. Dolan testified that Wells Fargo has written down and taken a loss on the Loan since Ms. Culpepper’s bankruptcy filing.

However, at about the time of her bankruptcy filing, Ms. Culpepper apparently applied for approval of a modification (“First Modification Application”) of the Loan. See Exhibit D. No evidence was submitted at the Hearing as to the disposition of the First Modification Application, but apparently, it was not approved and implemented. Ms. Culpepper’s counsel provided her with a letter authorizing direct contact to her regarding any proposal “to modify/refinance [her] home mortgage” dated January 10, 2010. See Exhibit 2.

Ms. Culpepper received her chapter 7 discharge by order entered on February 19, 2010. See Exhibit E. Wells Fargo learned of her discharge on February 23, 2010. See Exhibit 21, p. 31, at lines 20-23. Her bankruptcy case was closed by order entered on July 2, 2010. See Main Case Docket No. 28.

In the meantime, in May 2010, Ms. Cul-pepper applied for approval of a modification (“Second Modification Application”) of the Loan under the HAMP program. See Exhibit F. The Second Modification Application was approved (see Exhibit G), but because she determined that she could not afford the modified Loan payments, and the HAMP modification did not provide for any principal reduction of the Loan, Ms. Culpepper did not move forward with the approved Loan modification. Wells Fargo acknowledged that Ms. Culpepper did not want to proceed with a HAMP modification of the Loan on July 12, 2010. See Exhibit 16.

Ms. Culpepper made one final application for a modification (“Third Modification Application”) of the Loan in August 2010. See Exhibit H. No evidence was submitted at the Hearing as to the disposition of the Third Loan Modification, but apparently, it was not approved and implemented. By the end of 2010, Ms. Culpepper and her husband had been locked out of the Residence Property. See Exhibit 4.

[654]*654In January 2011, Ms. Culpepper began receiving a series of telephone calls from Wells Fargo. The precise number of calls is not clear, but she received calls most days, sometimes twice a day, until they finally ceased in January 2012, after the Contempt Motion was filed. Mr. Dolan testified at his deposition that he believed “over a hundred” calls were made to Ms. Culpepper after the Loan modification process stopped. See Exhibit 21, p. 18, at lines 23-25. Ms. Culpepper did not pick up most of the calls, but she knew that Wells Fargo was making the calls because they were reflected on her “caller ID.”

Transcripts of a return call that Ms. Culpepper made to Wells Fargo and three other calls that she took (collectively, the “Transcribed Calls”) were admitted as exhibits. See Exhibits 8, 9, 10 and 12. I listened to recordings of the four Transcribed Calls during the Hearing. (A “CD” of the Transcribed Calls was admitted as Exhibit P.) While the representatives of Wells Fargo in the Transcribed Calls generally advised Ms. Culpepper that they might be “attempting to collect a debt,” they also stated that if the debt had been discharged in bankruptcy, they were only advising as to rights against the Residence Property. See Exhibit 8, p. 4; Exhibit 9, p. 1; Exhibit 12, p. 1.

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Cite This Page — Counsel Stack

Bluebook (online)
481 B.R. 650, 2012 WL 5395935, 2012 Bankr. LEXIS 5192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-culpepper-orb-2012.