In re Fitch

540 B.R. 13, 2015 Bankr. LEXIS 3746, 2015 WL 6692236
CourtUnited States Bankruptcy Court, D. Maine
DecidedNovember 3, 2015
DocketCase No. 10-11945
StatusPublished

This text of 540 B.R. 13 (In re Fitch) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fitch, 540 B.R. 13, 2015 Bankr. LEXIS 3746, 2015 WL 6692236 (Me. 2015).

Opinion

MEMORANDUM OF DECISION

Michael A. Fagone, United States Bankruptcy Judge, District of Maine

Howard W. Fitch and Davene J. Fitch have asked the Court for an order determining that their mortgage loan obligations are current. Because Rule 3002.1 of the Federal Rules of Bankruptcy Procedure is applicable to the mortgagee’s claim and because the Debtors have not followed the procedure set forth in that rule, their motion will be denied.

I. Background

Howard and Davene Fitch (the “Debtors ”) commenced this chapter 13 case on December 29, 2010. At that time, and continuing thereafter, the Debtors’ residence was located at 9 Tote Road, Manchester, Maine. That property is encumbered by a mortgage granted to Countrywide Bank, FSB in February 2009. The Debtors allege that, in March 2013, the' mortgage was assigned to Bank of America, N.A. (“BofA ”).

BofA filed a proof of claim in October 2011. In that proof of claim, BofA asserts a secured claim in the amount of $156,336.19, with the Debtors’ residence at Tote Road serving as collateral for the claim. BofA did not assert any pre-petition arrearages in its proof of claim. BofA filed a notice of mortgage payment change under Fed. R. Bankr. P. 3002.1 in December 2013, and then again in December 2014.

Simultaneously with the filing of their petition, the Debtors proposed a chapter 13 plan. The plan provides for the Debtors to make current monthly mortgage payments to BAC Home Loans.1 The plan also provides that the claim “shall not be [14]*14discharged pursuant to 11 U.S.C. § 1328 unless the debtor surrenders the property during the term of the plan or the Court grants relief from the automatic stay — ” The plan indicates that there are no defaults on secured claims to be cured. In March 2011, without objection, the Court issued an order confirming the plan. The Debtors completed all payments under the confirmed plan and recently received a discharge under 11 U.S.C. § 1328(a).

The matter before the Court is the Debtors’ Motion to Determine Status of Mortgage as Current [D.E. 40] (the “Motion to Determine ”). The Motion to Determine does not allege facts from which the Court could conclude that the process set forth in Fed. R. Bankr. P. 3002.1 has been followed. For example, there is no allegation that the chapter 13 trustee or the Debtors filed and served a notice under Fed. R. Bankr. P. 3002.1(f). 2 In the Motion to Determine, the Debtors explain their failure to follow the process contained in Rule 3002.1 by contending that the rule “seemingly applies only where the debtor seeks a cure of pre-petition default on the note and mortgage for the debtor’s residence.... ” Motion to Determine, at 1 n.1.

Although no party objected to the Motion to Determine, the Court conducted a hearing on the motion on October 8, 2015. The Debtors and the chapter 13 trustee were given an opportunity to submit post-hearing briefs on a single legal question: whether Fed. R. Bankr. P. 3002.1 is applicable to BofA’s claim in this case, where there was no pre-petition default to be cured and where the Debtors made payments on account of the secured claim directly to the holder of the claim. For reasons explained below, the answer is “Yes.”

II. Rule 3002.1

The analysis starts with the text of rule. Rule 3002.1(a) provides:

(a) IN GENERAL. This rule 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.

Fed. R. Bankr. P. 3002.1(a). This is a chapter 13 case and BofA’s claim is secured by a security interest in the Debtors’ principal residence. As a result, whether Rule 3002.1 is applicable to BofA’s claim in this case hinges on whether the claim was “provided for under § 1322(b)(5) of the Code in the [Debtors’] plan.” Fed. R. Bankr.P. 3002.1(a).3

Section 1322(b)(5) authorizes a plan to: provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due[.]

11 U.S.C. § 1322(b)(5). The plan may do this with respect to a claim secured only [15]*15by a security interest in the debtor’s principal residence notwithstanding the anti-modification provisions of section 1322(b)(2). See id. The Debtors’ plan does not expressly provide for BofA’s claim under section 1322(b)(5). That said, it is clear that the Debtors proposed — and obtained confirmation of — a plan that relies on section 1322(b)(5) with respect to BofA’s claim. In this case, section 1322(b)(5) is the only part of chapter 13 that would permit the Debtors to maintain payments on the long-term debt associated with BofA’s secured claim. Further, the plan excepts BofA’s claim from discharge under section 1328. While not dispositive, the plan’s exception of the BofA debt from discharge reinforces the conclusion that BofA’s claim was provided for under 1322(b)(5) in the Debtors’ plan. See 11 U.S.C. § 1328(a)(1) (excepting from discharge any claim “provided for under section 1322(b)(5)[.]”).

That alone would be sufficient to answer the question presented here. However, the structure of Rule 3002.1 also buttresses the Court’s conclusion. Where it applies, Rule 3002.1 obligates the holder of a claim to take certain actions. Notably, the rule requires notice of payment changes, see Fed. R. Bankr. P. 3002.1(b), and notice of certain fees, expenses, and charges incurred post-petition. See Fed. R. Bankr. P. 3002.1(c). This is the type of information that any chapter 13 debtor would want, regardless of whether the mortgage loan was in default before or after the commencement of the case. Limiting the operation of the rule to circumstances involving a default to be cured would deprive some chapter 13 debtors of efficient access to important information regarding their mortgage loans.

There is no controlling authority on this question and case law from other jurisdictions is mixed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Weigel
485 B.R. 327 (E.D. Virginia, 2012)
In re Tollios
491 B.R. 886 (N.D. Illinois, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
540 B.R. 13, 2015 Bankr. LEXIS 3746, 2015 WL 6692236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fitch-meb-2015.