In re Darden

474 B.R. 1, 2012 WL 1906414, 2012 Bankr. LEXIS 2376
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedMay 25, 2012
DocketNo. 07-10474
StatusPublished
Cited by19 cases

This text of 474 B.R. 1 (In re Darden) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Darden, 474 B.R. 1, 2012 WL 1906414, 2012 Bankr. LEXIS 2376 (Mass. 2012).

Opinion

MEMORANDUM OF DECISION

FRANK J. BAILEY, Bankruptcy Judge.

I. INTRODUCTION

The matters before the Court are (1) the motion of Carolyn A. Bankowski, the Chapter 13 trustee (the “Trustee”) for Turnover of Settlement Funds, (2) the Trustee’s Motion to Dismiss, and (3) the Motion to Dismiss filed by the Debtor, Frances J. Darden. As these matters concern the administration of this case and the disposition of property of the estate, they are core proceedings over which this Court has jurisdiction to enter final orders and judgments. 28 U.S.C. § 157(b)(1), (b)(2)(A) and (E).

II. FACTS

On January 26, 2007, the Debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code.1 At the time she owned, and she continues to own, the real property located at 374 Harvard Street, Dorches-ter, Massachusetts (the “Property”). The Property is encumbered by a first mortgage held by Fremont Investment & Loan (“Fremont”) and, at the time of filing, a second mortgage that the Debtor believed was held by GMAC. On her Schedule B, the schedule of personal property she filed in her bankruptcy case, the Debtor listed claims against Fremont and GMAC under the Massachusetts Consumer Protection Act, Mass. Gen. Laws c. 93A, the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws Ch. 140D, (“MCCCDA”), and the common law for fraud. The Debtor commenced an action against Fremont and GMAC and the related mortgage broker and real estate agent on May 2, 2007 in Massachusetts Superior Court to prosecute these claims (the “State Court Action”).2

At the time of her bankruptcy filing, the Debtor reported unsecured prepetition [4]*4debts of $65,515. By June 14, 2007 (the deadline for creditors to file proofs of claim), her unsecured creditors had filed claims against her estate totaling $45,359.73. Of this sum, $35,337.84 was for nondischargeable student loan debt. The balance was for three claims totaling $10,021.89 for credit card debt and unsecured loans.

The Debtor’s schedules of income and expenses reflected a monthly net income of $2,094 with which to fund a plan. On April 23, 2007, she proposed a plan (the “2008 Plan”).3 In Section I of the 2008 Plan, setting forth the treatment of secured claims, the Debtor listed the secured claims of Fremont and GMAC but noted that she had rescinded the mortgages securing those claims and referenced the State Court Action. The 2008 Plan stated, “[t]he damages collected from this litigation will be paid toward these claims upon collection as a balloon payment to unse-eureds.” Under Section III, setting forth the treatment of unsecured claims, the Debtor listed general unsecured claims of $65,515 and an additional $479,027.68 in unsecured claims “arising after lien avoidance/cramdown” of the Fremont and GMAC mortgage claims. The 2008 Plan promised the general unsecured creditors dividends of twenty percent of their claims through plan payments “and a balloon payment upon receipt of litigation proceeds of up to 100% of their claim amounts.” In Section IV, entitled “OTHER PROVISIONS,” the Debtor reiterated her intention to sue Fremont and GMAC and repeated the language of Section I that “damages collected from this litigation will be paid toward these claims upon collection as a balloon payment to unsecureds.” The Court entered an order confirming the 2008 Plan on May 30, 2008 and setting its effective date at March 1, 2007. The Confirmation Order stated the Debtor would make six monthly payments of $2,094 and that “on or before the 60th month of the Plan, the Debtor shall pay the Trustee a lump sum payment in the amount of $484,038.00 or such sum as is necessary to complete the Plan from litigation proceeds.”

On January 7, 2010 the Trustee requested a conference on the status of the State Court Action. By that point she had already paid a twenty percent dividend to unsecured creditors per the terms of the 2008 Plan and was holding an additional $47,024 in plan payments.4 However, because the 2008 Plan contemplated a balloon payment upon receipt of litigation proceeds to pay up to an additional eighty percent of claims, the Trustee argued she could not disburse the money she held until the litigation was resolved or until the Debtor filed an amended plan. In a letter to the Court dated March 23, 2010, Debtor’s counsel reported that two developments in the State Court Action — a recent admission by GMAC that it had never owned the Debtor’s second mortgage, and Fremont’s assignment of its first mortgage to a third party — -had forced the Debtor to amend her complaint to include the current actual owners of her two mortgages. Counsel concluded that this amendment, in conjunction with numerous outstanding discovery issues and pending cross-motions for partial summary judgment, may [5]*5very well cause substantial delay in the Action.

On the basis of GMAC’s admission that it had never owned the Debtor’s second mortgage, this Court granted the Debtor leave to file a late objection to GMAC’s proof of claim in the spring of 2010. In her objection, the Debtor included a request that this Court sanction GMAC on the basis that, in an earlier motion for relief from stay, GMAC had falsely represented that it owned the Debtor’s second mortgage.

On June 29, 2010, the Trustee filed a motion to dismiss the Debtor’s bankruptcy case because the Debtor had fallen behind in payments under the 2008 Plan. In response, the Debtor explained that, due to a loss of foster care and a reduction in rental income, her monthly disposable income had dropped considerably. She filed an amended plan (the “Post-Confirmation Plan” or “Plan”) that reduced her plan payment from $2,094 to $400 per month. The Trustee withdrew her motion to dismiss.

The Post-Confirmation Plan also reduced the amount of general unsecured claims to $45,359.73 and altered the language describing how the unsecured claims would be paid. The PosNConfir-mation Plan retained the twenty percent dividend. However, where the 2008 Plan stated the general unsecured creditors would also receive “a balloon payment upon receipt of litigation proceeds of up to 100% of their claim amounts,” the Post-Confirmation Plan changed this language to read “[gjeneral unsecured creditors will also receive a pro rata share of any nonexempt proceeds, if any, upon [Debtor’s] receipt of said proceeds upon resolution of the litigation currently pending as mentioned in section 1A, above and IV(C) below.” The referenced sections remain unchanged from the earlier confirmed plan. Notably, they retain -the following language: “The damages collected from this litigation will be paid toward these claims upon collection as a balloon payment to unsecureds.” The Court granted the Debtor’s motion to amend the 2008 Plan without objection on September 21, 2010, making the PosNConfirmation Plan the effective plan, which it remains to this date.5

On June 10, 2011, the Debtor and GMAC filed a joint motion to approve a settlement (the “GMAC Settlement” or “Settlement”). Per the terms of the Settlement, GMAC would withdraw its proof of claim, release the Debtor from claims relating to the underlying mortgage transaction, and pay her $20,000.

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Cite This Page — Counsel Stack

Bluebook (online)
474 B.R. 1, 2012 WL 1906414, 2012 Bankr. LEXIS 2376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-darden-mab-2012.