In re Ford

522 B.R. 829, 2014 Bankr. LEXIS 5244, 2014 WL 7527173
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedOctober 29, 2014
DocketC/A No. 14-03138-JW
StatusPublished
Cited by4 cases

This text of 522 B.R. 829 (In re Ford) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ford, 522 B.R. 829, 2014 Bankr. LEXIS 5244, 2014 WL 7527173 (S.C. 2014).

Opinion

Chapter 13

ORDER

This matter comes before the Court on the Motion for Relief from Automatic Stay filed by Midwest First Financial Limited Partnership IV (“Midwest”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. Pursuant to Federal Rule of Civil Procedure 52, which is made applicable to this contested matter by Federal Rules of Bankruptcy Procedure 7052 and 9014(c), the Court makes the following findings of fact and conclusions of law.1

[831]*831 FINDINGS OF FACT

1. On May 27, 1999, Linda Jane Ford (“Debtor”) entered into a promissory note (“Note”) with Saxon Mortgage, Incorporated, Midwest’s predecessor in interest, to purchase real property located at 167 Neland Court, Walterboro, South Carolina 29488 (“Property”). On the same day, Debtor executed a mortgage in favor of Saxon Mortgage, Incorporated as to the Property in the amount of $68,000.00 (“Mortgage”).

2. The Mortgage contained an acceleration clause allowing the Note’s holder to demand full payment upon an event of default. The Mortgage also included a rider outlining the time at which the remaining balance on the Note would become due and payable if not already satisfied by previous payments (“Balloon Payment”). The Balloon Payment was scheduled to become due on June 1, 2014; at the time Debtor filed her current bankruptcy case on May 30, 2014, the Note’s remaining balance was approximately $77,102.00.

3. Prior to filing the instant case, Debt- or voluntarily filed three separate Chapter 13 bankruptcy cases.

4. Debtor’s first case, # 99-07529-WB, was filed on September 3, 1999 (“First Case”). Debtor’s Chapter 13 plan was filed on September 21, 1999 and confirmed without objection on November 4, 1999. Under her confirmed plan, Debtor was required to make payments of $73.00 per month, plus 8.25% interest, to cure an arrearage on the Mortgage as held by Midwest’s predecessor in interest, Meri-tech Mortgage, with regular payments to be paid directly by Debtor beginning in October 1999.2 Midwest filed a motion for relief from stay on August 31, 2000 based on Debtor’s failure to make regular post-petition Mortgage payments outside of her confirmed plan from November 1999 through August 2000. Midwest’s motion was resolved by a settlement order on September 22, 2000 which provided Debtor the opportunity to cure the arrearage.3 On November 30, 2000, Midwest filed an affidavit of Debtor’s default under the settlement order and Midwest’s motion for relief from stay was subsequently granted on December 4, 2000. Shortly thereafter, on February 2, 2001, Debtor’s First Case was dismissed upon the Court’s granting of the Trustee’s Petition to Dismiss for Non-Payment. The Trustee’s final report and account in the First Case indicates that Debtor paid $3,024.00 into the case prior to dismissal, with Midwest receiving $747.09 of its allowed claim of $2,550.67.

5.Debtor’s second case, # 01-04424-JW, was filed on April 30, 2001 (“Second Case”). Debtor’s Chapter 13 plan was filed on May 15, 2001 and confirmed without objection on July 20, 2001. Under her confirmed plan, Debtor was required to make payments of $271.00 or more per month, without interest, to Midwest to cure an arrearage on the Mortgage through May 2001, with regular payments to be paid directly by Debtor beginning in [832]*832June 2001.4 Debtor’s plan was amended on December 31, 2001 with adjustments to Debtor’s payments to the Trustee,5 but without altering its treatment of Midwest. Debtor’s amended Chapter 13 plan was confirmed without objection on February 11, 2002. Midwest filed a motion for relief from stay on November 1, 2002 based on Debtor’s failure to make post-petition Mortgage payments directly to the creditor for and after August 2002. Midwest’s motion was resolved by a settlement order on November 21, 2002, which provided Debtor with the opportunity to cure the arrearage. On February 20, 2006, after over three years of Debtor’s compliance with the terms of the November 2002 order, Midwest filed an affidavit of Debtor’s default under the settlement order. Midwest’s motion for relief from stay was subsequently granted on February 22, 2006. Shortly thereafter, upon Debtor’s successful completion of her amended plan, this Court entered an order granting discharge on March 3, 2006. The Trustee’s final report and account in the Second Case indicates that Debtor paid $19,707.50 into the case prior to discharge, with Midwest receiving $16,730.26 of its allowed claim of $17,264.20.

6.Over two years after Debtor’s successful completion of her Second Case, Debtor failed to make her July 2008 Mortgage payment, which was an event of default under the terms of the Mortgage. Enforcing the aforementioned acceleration clause, Midwest declared the unpaid principal balance of the Note, all unpaid accrued interest, and all other indebtedness or charges secured or to be secured by the Mortgage immediately due and payable.

7. Debtor was unable to pay the full balance of the Note and other charges, and Midwest initiated a foreclosure lawsuit on July 30, 2009. On October 22, 2009, a Special Referee’s Judgment of Foreclosure and Sale was entered ordering the Property to be sold at a judicial sale (“Sale Order”) and a sale date was set for December 7, 2009.

8. After the entry of the Sale Order, Debtor’s third case, # 09-07940-JW, was filed on October 23, 2009 (“Third Case”). Debtor’s amended Chapter 13 plan filed on December 11, 2009 was confirmed without objection on January 13, 2010.6 Under her confirmed plan, Debtor was required to make payments of $245.00 or more per month, without interest, to Midwest to cure an arrearage on the Mortgage through November 2009, with regular payments to be paid directly by Debtor beginning in December 2009.7 Midwest filed its first motion for relief from stay in the [833]*833Third Case on October 8, 2010 based on Debtor’s failure to make post-petition Mortgage payments directly to the creditor for and after July 2010. Midwest’s motion was resolved by a settlement order on October 26, 2010 which provided Debtor with the opportunity to cure the arrearage. Midwest filed its second motion for relief from stay on February 9, 2013 based on Debtor’s failure to make post-petition Mortgage payments directly to the creditor for and after September 2012. Midwest’s second motion was resolved by settlement order on March 5, 2013, thereby allowing Debtor to cure the arrearage. The Trustee filed a petition to dismiss Debtor’s Third Case for non-payment on April 3, 2013. Shortly thereafter, Debtor filed an amended Chapter 13 plan on April 23, 2013 with adjustments to Debtor’s payments to the Trustee,8 but without altering its treatment of Midwest. Debtor’s amended Chapter 13 plan was confirmed without objection on May 29, 2013. Prior to confirmation, the Trustee’s petition to dismiss was resolved by consent order on May 1, 2013.9 Later, on October 15, 2013, this Court granted a motion by the Trustee for dismissal of Debtor’s Third Case for non-compliance.

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Cite This Page — Counsel Stack

Bluebook (online)
522 B.R. 829, 2014 Bankr. LEXIS 5244, 2014 WL 7527173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ford-scb-2014.