In re Curley

572 B.R. 622, 2017 Bankr. LEXIS 1889
CourtUnited States Bankruptcy Court, E.D. Louisiana
DecidedJuly 7, 2017
DocketCASE NO. 14-12678
StatusPublished
Cited by3 cases

This text of 572 B.R. 622 (In re Curley) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Curley, 572 B.R. 622, 2017 Bankr. LEXIS 1889 (La. 2017).

Opinion

SECTION A

REASONS FOR DECISION

Hon. Elizabeth W. Magner, U.S. Bankruptcy Judge

The Motion for Relief from Stay filed by AP Direct L.L.C. (“AP”) and the Objection filed by debtors, James and Wanda Curley (collectively “Debtors”) came before the Court on May 9, 2017. At the conclusion of the hearing, the Court took the matter under advisement.

I. Findings of Fact

On October 6, 2014, Debtors filed a Voluntary Petition for Relief under Chapter 13 of the Bankruptcy Code (“Petition Date”), At the time of their filing, Debtors claimed an ownership interest in real property located at 5824 Providence Place, New Orleans, Louisiana (“Providence”). Prior to filing for relief, Providence was sold at tax sale for nonpayment of 2012 property taxes (“Tax Sale”). AP purchased the property after paying $3,381.35. A Tax Certificate was issued on October 15, 2013, and recorded on October 25, 2013. Debtors listed the City of New Orleans (“City”) as [625]*625a unsecured priority creditor in the amount of $3,500.00 on their Schedules of Assets and Liabilities. AP was not listed as a creditor nor noticed as a party in interest.

On October 20, 2014, the City filed six (6) proofs of claim totaling $27,728.27:

1. Claim 6 in the secured amount of $3,215.43 for property taxes assessed under tax bill 39W13602 on property located at 7910 Mayo Rd., New Orleans, La.;
2. Claim 7 in the secured amount of $6,282.12 for property taxes under tax bill no. 38W411616 on property located at 2519 Pressburg Ct., New Orleans, La.;
3. Claim 8 in the secured amount of $1,888.20 for property taxes assessed under tax bill 39W13602 on property located at 7910 Mayo Rd., New Orleans, La.;
4. Claim 9 in the secured amount of $6,361.05 for an undisclosed property. The Proof of Claim attached a Tax Sale Redemption Calculation for tax bill no. 39W027311;
5. Claim 10 in the secured amount of $8,265.82 for an undisclosed property. The City attached a Tax Sale Redemption Certificate for tax bill no. 39W904321; and
6. Claim 11 in the secured amount of $1,169.65 for an undisclosed property. The City attached a Tax Sale Redemption Calculation under tax bill no. 39W904321.

On January 30, 2015, Debtors’ Amended Chapter 13 plan of reorganization was confirmed (“Plan”). The Plan proposed to pay the City $27,728.27 in priority claims over five (5) years without interest. Neither the City nor AP filed an Objection to confirmation. The City was noticed of the Plan, period to object to confirmation, confirmation hearing date and entry of the confirmation order. AP did not receive notice of either Debtors’ fifing for bankruptcy relief, the Plan, objection deadline, confirmation hearing date, or entry of the confirmation order.

On February 10, 2017, AP filed a Petition to Confirm Tax Sale in the Civil District Court for the Parish of Orleans. It was then that Debtors’ counsel informed AP of Debtors’ pending bankruptcy case. AP has filed the instant Motion for Relief to prosecute its' Petition to Confirm Tax Sale.

AP asserts that the period to redeem Providence has lapsed and it is. entitled to quiet title. It argues that under Louisiana law the redemption period may not be interrupted, suspended or extended. As a result, Debtors’ Plan may not extend or suspend the running of the redemptive period. It also asserts that to the extent the Plan seeks to bind it to repayment over a five (5) year period, Debtors’ failure to notice it of the Plan’s contents, objection deadline for confirmation, confirmation hearing, and confirmation order violates due process.

Debtors counter that the Plan provides for repayment to the City over five (5) years, and the confirmation hearing and objection deadline were properly noticed to the City. It asserts AP’s rights are derivative from the City’s. As a result, because the City did not object to confirmation, AP is bound by the terms of the Plan.

II. Law and Analysis

Louisiana law provides that property sold at tax sale is:

[R]edeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and inter[626]*626est at the rate of one percent per month until redemption.1

The three (3) year redemption period is peremptive under Louisianan law.2 Under state law, peremptive periods “may not be renounced, interrupted, or suspended.”3

Section 108(b) of the Bankruptcy Code provides in pertinent part:

Except as provided in subsection (a) of this section, if applicable nonbankruptcy law, an order entered in a nonbankrupt-cy proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1201 or 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 60 days after the order of relief.

Thus, under the Bankruptcy Code, if a debtor holds an unexpired right of redemption on the petition date, the debtor has until the period allowed under state law or sixty days from the petition date, whichever is later, to redeem.

Whether or not Debtors timely redeemed, they also contend that they had the right to “cure” any failure to satisfy them obligation to pay property taxes by confirming a plan that extends the period of redemption beyond the statutory period.

A. May Debtors Redeem Providence through Plan Payments?

A plan repays a creditor on a pre-existing debt over time. A plan may force a creditor to accept payment to cure a default over time. However, it may not adjust the rights of a third party who is not a creditor of the estate except in very limited circumstances not applicable in this case.4 Because only a creditor with an allowed claim may receive distributions under a Chapter 13 plan,5 it is inappropriate for a debtor to place payments to a non-creditor into a plan.

By virtue of the Tax Sale, AP became the 70% owner of Providence.6 AP’s payment of taxes after the Tax Sale extinguished Debtors’ obligation to the City.7 When AP purchased Providence, it did not purchase Debtors’ obligation to the City. Instead, it obtained a right to Providence’s title, assuming Debtors did not exercise their right to redeem. While AP’s right to [627]*627Providence was subject to a right of redemption in favor of Debtors, Debtors were under no obligation to exercise the redemptive right and owed no obligation to AP if they did not redeem. Nor could AP force Debtors to redeem or waive their right of redemption.

A “creditor” is a person who “has a claim against the debtor”8

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Cite This Page — Counsel Stack

Bluebook (online)
572 B.R. 622, 2017 Bankr. LEXIS 1889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-curley-laeb-2017.