In re Felipe

549 B.R. 252, 2016 Bankr. LEXIS 1809, 2016 WL 1643891
CourtUnited States Bankruptcy Court, D. Hawaii
DecidedApril 22, 2016
DocketCase No. 14-00544
StatusPublished

This text of 549 B.R. 252 (In re Felipe) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Felipe, 549 B.R. 252, 2016 Bankr. LEXIS 1809, 2016 WL 1643891 (Haw. 2016).

Opinion

[253]*253 ORDER DENYING AOAO’S MOTION FOR RELIEF FROM STAY AND DEBTOR’S MOTION FOR PROTECTIVE ORDER

Robert J. Faris, United States Bankruptcy Judge

Creditor AOAO Parkview Village (“AOAO”) moves for relief from the automatic stay to enforce its lien rights against Debtors Nestor and Mary Ann Felipe.1 The Debtors move for an order precluding from presenting any information regarding maintenance fees, late fees, and legal fees, not disclosed as required under the Federal Rules of Bankruptcy Procedure 3002.1.2

Based on the written submissions, the oral arguments, and for the following reasons, I will DENY most of the relief requested in both motions.

Background

The Debtors filed their bankruptcy petition on April 22, 2014 and listed the AOAO as a creditor with a secured claim of $25,500.00 for maintenance fees. According to the Debtors’ schedules, this amount consists of a prepetition arrearage of $7,500.00 and postpetition fees at $300.00 per month for the 60 month duration of the proposed chapter 13 plan.3

The AOAO’s most recently amended Proof of Claim # 10-3 states that the amount of the AOAO’s claim as of the petition date was $8,581.81. The Proof of Claim does not state the amount of maintenance fees accruing after the petition date.

The Debtors’ chapter 13 plan4 provides that the Debtors would make monthly plan payments of $575.00. From these funds, the trustee would pay $300.00 per month to the AOAO to cover the postpetition maintenance fees; an “additional provision” reiterates that “Trustee shall make Debtor’s post-petition maintenance fees for the duration of the plan.”5 In addition, the AOAO would receive a portion of the remaining plan payments for application to the prepetition arrearage.

The AOAO did not object to the plan. The trustee pointed out, however, that the plan had to be amended to account for possible future increases in the AOAO fees.6 Accordingly, the plan was modified to provide that the plan payments would automatically increase if the post-petition amounts due to the AOAO increased, and the court confirmed the plan as modified.7

The plan contained a crucial error from the inception. At the time of confirmation, the monthly postpetition payments due to the AOAO were $306.94 per month, $6.94 more than the plan allocated. Thus, the payments to the AOAO were insufficient, and the AOAO charged a monthly late fee of $10.00 to the Debtors for each month of the underpayment.

To make matters worse, the AOAO twice increased the monthly maintenance fees, at the end of both 2014 and 2015. By 2016, the fees were $351.41 per month, but the trustee was still paying only $300.00 per month because neither the Debtors [254]*254nor the AOAO informed the trustee of the increases.

The AOAO sent all owners in the condominium project, including the Debtors, an package of documents for each of the AOAO’s annual meetings, including budgets which showed the prospective increases in the maintenance fees.8 When the AOAO sent a specific.payment demand to the Debtors for the increased postpetition fees, the Debtors’ attorney claimed that the AOAO had violated the automatic stay, so the AOAO stopped sending further notices.9

On February 3, 2016, the AOAO filed its Motion for Relief from the Automatic Stay. The AOAO alleged that the Debtors accrued a postpetition delinquency (including monthly maintenance fees, late fees, attorneys’ fees and costs, and a “parking stall clean-up charge”) of ■ approximately $2,625.19.10

On February 26, 2016, prior to the final hearing on the stay relief motion, the Debtors filed the Motion for Protective Order. The Debtors argue that Fed. R. Bankr. P. 3002.1 required the AOAO to file notices of payment changes, that the AOAO failed to do so, and that the court should sanction the AOAO.

Standard

Federal Rule of Bankruptcy Procedure 3002.1 “applies in a chapter 13 case to claims that are (1) secured by a security interest in the debtor’s principal residence, and (2) provided for under § 1322(b)(5) of the Code in the debtor’s plan.”11 Rule 3002.1 requires the holder of such a claim to “file and serve on the debtor, debtor’s counsel, and the trustee a notice of any change in payment amount ... no later than 21 days before a payment in the new amount is due.”12 The holder of a claim must also file and serve “a notice itemizing all fees, expenses, or charges (1) that were incurred in connection with the claim after the bankruptcy case was filed, and (2) that the holder asserts are recoverable against the debtor or against the debtor’s principal residence. The notice shall be served within 180 days after the date on which the fees, expenses, or charges are incurred.”13 If the claimant fails to give the required notice, the court may “(1) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or (2) award other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure.” 14

Section 1322(b)(5) of the Bankruptcy Code states that a chapter 13 plan may provide for “the curing of any default within a reasonable time and maintenance of payments while the case is pending on any ... secured claim on which the last payment is due after the date on which the final payment under the plan is due.”15

[255]*255Discussion

Better communication would have avoided this entire dispute.16 If the Debtors and their counsel had given the trustee (via the plan) the correct amount of the postpetition payments to the AOAO, or if the AOAO had objected to the incorrect figure in the proposed plan, the trustee would have paid the correct amount at the inception and the AOAO’s postpetition arrears would have been substantially smaller. If the AOAO or the Debtors told the trustee that the postpetition payments had increased, someone probably would have taken appropriate action. Compliance with rule 3002.1 likely would have had the same effect. But none of those things happened, so the AOAO and the Debtor both seek extreme remedies against each other.

The AOAO argues that rule 3002.1 applies only to mortgage creditors, not condominium associations. I disagree. While it is true that the 2011 Advisory Committee Notes discuss the rule’s application to mortgage creditors, the language of rule 3002.1 prevails over that of the notes. The plain language of the rule does not support the distinction that the AOAO advocates. The advisory committee’s reference to mortgagees probably stems from the fact that most of the problems the rule addresses arose from mortgage debts.

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Related

Definitions
11 U.S.C. § 101(12)
Contents of plan
11 U.S.C. § 1322(b)(5)
Exceptions to discharge
11 U.S.C. § 523(a)(16)

Cite This Page — Counsel Stack

Bluebook (online)
549 B.R. 252, 2016 Bankr. LEXIS 1809, 2016 WL 1643891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-felipe-hib-2016.