In re Howard

563 B.R. 308, 2016 Bankr. LEXIS 4568
CourtUnited States Bankruptcy Court, N.D. California
DecidedJune 1, 2016
DocketCase No. 10-52527 SLJ
StatusPublished
Cited by10 cases

This text of 563 B.R. 308 (In re Howard) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Howard, 563 B.R. 308, 2016 Bankr. LEXIS 4568 (Cal. 2016).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DEEM MORTGAGE CURRENT

Stephen L. Johnson, U.S. Bankruptcy Judge

Debtor’s Motion to Deem Mortgage Current (“Motion”) came on for hearing at the above-referenced date and time. Appearances were noted on the record. After hearing arguments from counsel, the court took the matter under submission. For the following reasons, the court will grant the Motion in part and deny in part.1

I. BACKGROUND

The relevant facts are not disputed. Debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code on March 15, 2010.2 The schedules disclosed that Debtor has an ownership interest in real property located at 240 Pacific Street, Brookdale, California (“Property”). The Property is encumbered by a senior lien in favor of PNC Mortgage (“PNC” or “Creditor”) in the approximate amount of $705,524. The confirmed plan provided that mortgage arrears in the amount of $26,-760.703 would be paid through the plan and that Debtor would make on-going mortgage payments of $3,023.00 per month directly to PNC.

On January 13, 2016, the chapter 13 trustee (“Trustee”) filed a Notice of Final Cure Payment (“Notice”) pursuant to Bankruptcy Rule 3002.1(f), stating that the claim of PNC in the amount of $26,760.70 has been paid in full by the Trustee. The Notice further states:

Within 21 days of the service of the Notice of Final Cure Payment, the creditor MUST file, and serve a Statement as a supplement to the holder’s proof of claim on the Debtor, Debtor’s Counsel and the Chapter 13 Trustee, pursuant to Fed.R.Bank.P. 3002.1(g), indicating 1) whether it agrees that the Debtor has paid in full the payment required to cure the default on the claim; and 2) whether the Debtor is otherwise current on all payments consistent .with 11 U.S.C. § 1322(b)(5).
The statement shall itemize the required cure or post-petition amount, if any, that the holder contends remain unpaid as of the date of the statement. The statement shall be filed as a supplement to the holder’s proof of claim and is not subject to Rule 3001(f). Failure to notify may result in sanctions. (Emphasis added).

[311]*311Despite these instructions, on February 2, 2016, PNC’s counsel Peter Van Zandt filed a Response to Notice of Final Cure Payment (“First Response”) on the court’s docket rather than as a supplement to PNC’s proof of claim. As with all of PNC’s responses, PNC used Official Form 4100R.4 In the First Response, PNC disagreed with the Notice and asserted that total prepetition amount of $20,712 remained unpaid. At the same time, PNC stated that Debtor was current with all postpetition payments, including all fees, charges, expenses, escrow, and costs. No itemized statement was attached to the First Response breaking down the alleged cure amount of $20,712. The First Response was signed by Mr. Van Zandt, as PNC’s authorized agent, under penalty of perjury and dated February 2, 2016.

The very next day, February 3, 2016, Mr. Van Zandt filed another Response to Notice of Final Cure Payment (“Second Response”) on the court’s docket. Mr. Van Zandt did not identify the Second Response as an amendment to the First Response. In the Second Response, PNC stated that it agreed with the Notice indicating that Debtor has paid in full the prepetition arrears and was current on all postpetition obligations. Mr. Van Zandt signed the Second Response under penalty of perjury on February 3, 2016.

Two days later, on February 5, 2016, Mr. Van Zandt filed yet another Response to Notice of Final Cure Payment (“Third Response”) on the court’s docket. This time PNC alleged that whereas Debtor had paid the prepetition arrears in full, Debtor was delinquent on postpetition mortgage payments in the amount of $674,693.60 and outstanding fees, charges, expenses, escrow, and costs in the amount of $62,623.90, for a total of $737,317.50. No itemized statement was attached to the Third Response. Mr. Van Zandt also signed the Third Response under penalty of perjury.

On February 10, 2016, Debtor filed this Motion, in which Debtor requested the court to strike all three responses filed by PNC, award attorney’s fees, and deem the mortgage postpetition current, pursuant to Bankruptcy Rule 3002.1(i). Particularly, Debtor alleged that she could not respond to PNC’s allegations because none of three dissimilar responses was supported by an itemization as required under Bankruptcy Rule 3002.1(g).

PNC filed a timely opposition in which it asserted that it timely filed a response to the notice of final cure payment. PNC also alleged that the response was correct in that Debtor has paid in full her prepetition arrears but Debtor has outstanding post-petition obligations in the amount of $62,623.90. Although it appeared PNC was relying on the Third Response, it did not mention the outstanding postpetition mortgage payments of $674,693.60. While PNC acknowledged that it did not include an itemized statement of the postpetition charges, it asserted that such omission was harmless because Mr. Van Zandt sent a copy of the itemized statement to Debtor’s counsel on February 3, 2016. PNC contended in its opposition that deeming the mortgage current would be an arbitrary and punitive sanction because the $62,623.90 that PNC sought arose from property taxes and insurance that PNC paid on Debtor’s behalf. Notably, PNC did not object to the request for attorney’s fees.

[312]*312At the hearing on the Motion on March 17, 2016, Mr. Van Zandt did not appear. When the court contacted Mr. Van Zandt’s law firm, another attorney by the name of Greg Mascitti appeared telephonically. He had no knowledge of the case and informed the court that Mr. Van Zandt was in trial at another court. For reasons stated at the hearing, the court sanctioned Mr. Van Zandt the attorney’s fees and costs incurred by Debtor’s counsel for appearing at the hearing.5 Furthermore, as set forth in the Order for Further Briefing and Sanctions against Counsel for PNC Bank, entered on March 23, 2016, the court ordered PNC to file a supplemental brief addressing the following issues: (1) which of the three responses filed by PNC is the operative document; (2) the factual basis for the postpetition amount due of $674,693.60 in PNC’s Third Response (the amount appears to be the entire principal of the loan); and (3) the circumstances under which Mr. Van Zandt filed the Second Response, which showed Debtor to be current prepetition and postpetition, when on the same day he emailed Debtor’s counsel an itemized statement showing $62,623.90 in escrow charges.

In response to the order for further briefing, Mr. Van Zandt filed a declaration in which he stated the Third Response was the operative response. He admitted it erroneously stated that the full mortgage of $674,693.60 was due and owing, Mr. Van Zandt justified his errors by explaining that he misunderstood the instructions in the response form and that he does not regularly practice chapter 13 bankruptcy law. Mr. Van Zandt also attached a proposed Response to Notice of Final Cure Payment with itemized statement (“Proposed Response”) to his declaration.

Debtor filed a reply, which correctly pointed out that the Proposed Response was not signed by Mr.

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Bluebook (online)
563 B.R. 308, 2016 Bankr. LEXIS 4568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-howard-canb-2016.