In re Diggins

561 B.R. 782, 2016 WL 7396699
CourtUnited States Bankruptcy Court, D. Colorado
DecidedDecember 20, 2016
DocketCase No. 10-40335-JGR
StatusPublished
Cited by3 cases

This text of 561 B.R. 782 (In re Diggins) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Diggins, 561 B.R. 782, 2016 WL 7396699 (Colo. 2016).

Opinion

ORDER

Joseph G. Rosania, Jr., United States Bankruptcy Judge

This case presents this Court with its first occasion to weigh in on the recent trend of lenders objecting to discharge at the conclusion of a Chapter 13 case because a debtor has failed to make post-petition mortgage payments. After a status conference, the Court asked the parties to brief the issue so it may consider the most recent decisions from other divisions of this Court in rendering its decision. The parties have submitted their briefs, and being advised, the Court is ready to rule.

I. Procedural Background

The Debtor filed for relief under Chapter 13 on December 2,2010, and her Chapter 13 Plan was confirmed on September 13, 2011. The Plan provided for payments to be made directly to the Chapter 13 Trustee (“Trustee”) over a period of 60 months, and contained the following language in Section IV B:1

Claims set forth below are secured only by an interest in real property that is the debtor’s principal residence located at 25083 E. 5th Ave., Aurora, Colorado 80018. Defaults shall be cured and regular payments shall be made.

The Plan payments included the cure' of a $1,401 pre-prepetition default to Debtor’s [784]*784mortgage company (“Chase”). Under Sec-tion V, “Other Provisions,” the Plan provided that payments would be made directly to Chase on its secured'claim. In that section, the amount of the monthly payment to Chase was listed as $1,968.41.

Debtor’s mortgage debt to Chase was assigned to Carrington Mortgage Services (“Carrington”) in April 2014. Trustee issued a Notice of Final Cure Mortgage Payment pursuant to Fed. R. Bankr. 3002-1(f) on March 21, 2016 (docket # 144), indicating Debtor had paid the entire pre-petition default on her mortgage through the Plan. Carrington filed its response to the Notice of Final Cure, asserting Debtor still owed $29,055.97 in post-petition payments. In the response, Carrington also noted “[t]he Debtor is in the process of completing a Loan Modification. If the Loan Modification process is completed and approved the Debtors will then be current with mortgage payments.” (docket entry dated April 11,2016).

A month later, the Trustee filed a motion to dismiss under 11 U.S.C. § 13072 for failure to comply with provisions of the Plan, contending:

If Carrington Mortgage Services, LLC’s assertion is correct, Debtor is in material default with respect to a term of her confirmed plan. The regular mortgage payments listed on Schedule J presumes Debtor will make payments directly to the mortgage company. If Debtor made a conscious decision not to pay the mortgage, those budgeted funds should have been paid to the Trustee for distribution to unsecured creditors. Colorado Bankruptcy Courts have ruled on this issue.

Debtor filed a response, indicating she had entered into a loan modification with Carrington, and that as of July 2016, she had made all required payments and “a modified loan is in underwriting.” Further, Debtor stated “Carrington agrees that, once modified, [Debtor] will be current with her mortgage and there will be no default.” (Docket # 151).

On September 27, 2016, Debtor filed her Certification to Obtain Discharge under § 1328 indicating she had completed all payments and obligations required by her Chapter 13 Plan. Thé Court set a hearing on the Trustee’s Motion to Dismiss, Debt- or’s Response, and Debtor’s Certification to Obtain Discharge. After the hearing, held on October 6, 2016, the Court ordered the parties to submit briefing on whether Debtor had made all payments under the Plan and was entitled to discharge.

II. Discussion

In her brief, Debtor recognizes other divisions of this Court have ruled that post-petition mortgage payments are considered “payments under the plan” when determining whether a debtor is qualified for discharge under § 1328(a).3 Debtor, however, argues that none of the cases prohibit a debtor from reaching out to an “outside-the-plan” creditor to change payments to prevent default.

In this case, Debtor explains that in 2015, her income dropped to about half what it had been when her Chapter 13 Plan was confirmed. She approached Car-rington about modifying her home loan so that she could stay current on payments with a reduced income, and Carrington agreed. Consistent with her instructions from Carrington, Debtor did not make [785]*785mortgage payments for several months, and then resumed payments during a trial period.

The Trustee concedes “a loan modification may cure deficiencies in post-petition mortgage payments under some circumstances.” Trustee, however, cites In re Strimbu, 10-19146-MER (March 31, 2016), where the Court held that a loan modification itself does not necessarily mitigate a material default. Trustee contends that, because Debtor did not take steps to address the default until month 60 of her plan, and did not complete the mortgage modification until month 70, Debtor’s case should be dismissed without a discharge.

In their briefs, the parties cite eight cases from other divisions of this Court, which this Court has thoroughly reviewed.

1. In re Daggs, No. 10-16518 HRT (Bankr. D. Colo. January 6,2014). In this case, the Court held that a debt- or who completed all the payments her plan required her to make to the trustee, but who did not make all of the payments the plan required her to make directly to the mortgagee, had not completed “all payments under the plan,” as required for debtor to obtain discharge under § 1328(a). Debtor had missed nine post-petition payments, totaling $11,768. The Court held debtor was not entitled to discharge, and her case was subject to conversion or dismissal under § 1307(c)(6). The Court considered whether dismissal or conversion would be in the best interests of creditors, and granted debtor’s request to convert to Chapter 7.
2. In re Furuiye, No. 10-15854 SBB (Bankr. D. Colo. April 7, 2014). The debtors had missed 29 payments with a delinquency of over $50,000. Judge Brooks followed the reasoning set forth in Daggs and reached the same result, granting the debtors’ request to convert to Chapter 7.
3. In re Gonzales, 532 B.R. 828 (Bankr. D. Colo. 2015). Here, the discharge had been entered on the trustee’s statement of completion with request for discharge. The Court cited Daggs and cases from other jurisdic- ■ tions and held debtors had not completed all payments under the plan as required by § 1328(a), because they still owed their lender $49,377 in post-petition payments. Thus, the Court vacated the discharge.
4. In re Formaneck, 534 B.R. 29 (Bankr. D. Colo. 2015), The debtors failed to make mortgage payments over a 30-month period, in a total amount of over $100,000. In this case, the Court considered that debtors had not disclosed or even addressed how they had been spending their income allocated for mortgage payments over the latter half of the plan. Debtors had not requested conversion, and the Court dismissed their case without a discharge.
5. In re Cherry, No.10-25318 TBM (Bankr. D. Colo. January 19, 2016).

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Cite This Page — Counsel Stack

Bluebook (online)
561 B.R. 782, 2016 WL 7396699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-diggins-cob-2016.