In re Dupuis

524 B.R. 1, 72 Collier Bankr. Cas. 2d 1800, 2015 Bankr. LEXIS 41, 2015 WL 128229
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJanuary 8, 2015
DocketNo. 12-30380-HJB
StatusPublished
Cited by3 cases

This text of 524 B.R. 1 (In re Dupuis) 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 Dupuis, 524 B.R. 1, 72 Collier Bankr. Cas. 2d 1800, 2015 Bankr. LEXIS 41, 2015 WL 128229 (Mass. 2015).

Opinion

MEMORANDUM OF DECISION

HENRY J. BOROFF, Bankruptcy Judge.

Before the Court for determination are a Motion for Authority to Compromise (the “Motion to Compromise”) filed by the Chapter 7 Trustee Gary M. Weiner (the “Trustee”) and a Motion to Compel Abandonment (the “Motion to Abandon”) filed by the debtor Gail Dupuis (the “Debtor”). Through the Motion to Compromise, the Trustee seeks leave to settle his pending avoidance action against Wells Fargo Bank, N.A„ (‘Wells Fargo”) through which he sought to avoid and preserve for the bankruptcy estate a mortgage granted by the Debtor in favor of Wells Fargo. The Debtor objects to the Motion to Compromise on grounds that the Trustee does not have the power to carry out its terms. The Debtor prefers that the Trustee abandon the subject property instead.

I. FACTS AND TRAVEL OF THE CASE

The facts of the case are without material dispute, based in large part on an Agreed Statement of Facts filed by the Debtor, the Trustee, and Wells Fargo.

On January 18, 2005, the Debtor purchased a residence in Wales, Massachusetts (the “Residence”). The original deed (the “2005 Deed”), recorded at the Hamp-den County Registry of Deeds (the “Registry”) in Book 14770, Page 374, erroneously referred to the Residence as Parcel 2 on the relevant plan recorded in the Registry in Plan Book 335, Plan 125 (the “Plan”). In fact, the Residence is located on Parcel 1 of the Plan. On January 20, 2005, the Debtor purchased two undeveloped lots [3]*3abutting the Residence. These lots were correctly identified in the respective deeds as Parcel 2 and Parcel 3 on the Plan.

In 2007, the Debtor refinanced the mortgage loan on her Residence, granting Wells Fargo a mortgage on the property (the “2007 Mortgage”). At the time of the refinancing, it was the parties’ intention that the 2007 Mortgage encumber the Residence (again, Parcel 1) only. But the 2007 Mortgage referred only to Parcels 2 and 3, and not to Parcel 1.

In October 2011, the Debtor defaulted on the mortgage loan payments to Wells Fargo. Around the same time, late in 2011, the Debtor first became aware of the erroneous description of the Residence in the original 2005 Deed and that the 2007 Mortgage erroneously encumbered Parcels 2 and 3. On February 29, 2012, a confirmatory deed was recorded, which provided in relevant part that its purpose was to correct the parcel number which read ‘Parcel 2’ but should have been ‘Parcel 1’. No analogous correction was made to the 2007 Mortgage. On March 14, 2012, the Debtor recorded a Declaration of Homestead on the Residence, pursuant to Mass. General Laws (“MGL”) ch. 188, § 1 (the “Massachusetts Homestead Statute”).

Seven days later, on March 19, 2012, the Debtor filed a petition for relief under Chapter 7 of the United States Bankruptcy Code (the “Bankruptcy Code” or the “Code”).1 On Schedule C of her bankruptcy schedules, the Debtor claimed a $130,000 exemption in the Residence pursuant to the Massachusetts Homestead Statute (the “Homestead Exemption”), which amount is identical to that listed as the value of the Residence on Schedules A and D.

On September 13, 2012, the Trustee commenced an adversary proceeding against Wells Fargo2 seeking avoidance of the 2007 Mortgage pursuant to § 544 and preservation of the mortgage for the benefit of the estate pursuant to § 551. On January 3, 2013, the Debtor filed the Motion to Abandon.3

On February 11, 2014, the Trustee filed the Motion to Compromise. The proposed compromise between the bankruptcy estate and Wells Fargo contains the following salient terms: 1) Wells Fargo would pay $10,000 to the Trustee; 2) the adversary proceeding would be dismissed; and 3) the Trustee would execute and deliver to Wells Fargo a new mortgage on the Residence that correctly describes the Residence as located at Parcel 1. Following a hearing on the Trustee’s Motion to Compromise and the Debtor’s Motion to Abandon, the Court took both matters under advisement.

II. POSITIONS OF THE PARTIES

In support of the proposed compromise, the Trustee asserts that as a hypothetical bona fide purchaser under § 544(a)(3), he may seek avoidance of the 2007 Mortgage and, consequently, preserve the avoided mortgage for the benefit of the bankruptcy estate pursuant to § 551. The Trustee argues that his authority to provide Wells Fargo with a reformed mortgage derives from the fact that, once preserved, the [4]*4avoided mortgage would constitute property of the estate under § 541(a)(1).4

While the Debtor admits that she originally intended to grant a first mortgage on her Residence (Parcel 1) to Wells Fargo, she maintains that the Trustee has no power to reform a prepetition agreement over the objection of a party and therefore, cannot reform the 2007 Mortgage. She believes the adversary proceeding should proceed to trial for the purpose of invalidating Wells Fargo’s mortgage on Parcels 2 and 3 for the benefit of estate. She further argues that because she exempted Parcel 1 under the Massachusetts Homestead Statute and no timely objection was made to the exemption, the Residence is of inconsequential value to the estate and should be abandoned to her.

III. DISCUSSION

A. The Trustee’s Avoidance Powers

Section 544(a)(3)5 grants a trustee in bankruptcy the power to avoid liens that would be unenforceable against a bona fide purchaser for value under applicable non-bankruptcy law. Section 550(a)6 allows the trustee to recover the fruit of such avoidance. Further, under §§ 541(a)(3) and (4),7 property of the bankruptcy estate includes any interest in property that the Trustee recovers under § 550(a) or preserves for the benefit of the estate under § 551.

It is settled Massachusetts law that where a mortgage is not timely recorded or contains a defective description so as to not give constructive notice of the mortgage to a bona fide purchaser, the mortgage can be avoided by that purchaser of the property. See M.G.L. ch. 183, § 4; Tramontozzi v. D’Amicis, 183 N.E.2d 295, 344 Mass. 514, 517 (1962); Norton v. West, 394 N.E.2d 1125, 8 Mass.App.Ct. 348 (1979) citing Lamson & Co., Inc. v. Abrams, 25 N.E.2d 374, 305 Mass. 238 (1940); DeWolfe Co., Inc. v. Presidential Development Corp., Inc., 2003 WL 1505766 (March 18, 2003). Section 544(a)(3) grants the same right to a bankruptcy estate representative; in Chapter 7 cases, the [5]*5trustee in bankruptcy. See Riley v. Sullivan (In re Sullivan), 387 B.R. 353, 357 (1st Cir. BAP 2008) (Trustee could avoid mortgage that was unrecorded at the commencement of the bankruptcy case); Agin v. Mortg. Elec. Registration Sys., Inc. (In re Bower), 2010 WL 4023396 (Bankr. D.Mass. Oct. 10, 2010) and Agin v. Mortg. Elec. Registration Sys., Inc. (In re Giroux), 2009 WL 1458173 (Bankr.D.Mass. May 21, 2009) (Trustee could avoid mortgage containing a material defect, e.g. debtor’s name was omitted from acknowledgment of mortgage); Miranda v.

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Bluebook (online)
524 B.R. 1, 72 Collier Bankr. Cas. 2d 1800, 2015 Bankr. LEXIS 41, 2015 WL 128229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dupuis-mab-2015.