In re Hubbell

496 B.R. 784, 2013 WL 4511640, 2013 Bankr. LEXIS 3444
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedAugust 23, 2013
DocketNo. 12-04310-8-SWH
StatusPublished
Cited by4 cases

This text of 496 B.R. 784 (In re Hubbell) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hubbell, 496 B.R. 784, 2013 WL 4511640, 2013 Bankr. LEXIS 3444 (N.C. 2013).

Opinion

CHAPTER 13

ORDER

Stephani W. Humrickhouse, United States Bankruptcy Judge.

This matter came before the court on the objection of RBS Citizens, N.A., successor-in-interest to COO Mortgage Corporation f/k/a American Home Funding, Inc. (collectively “RBS Citizens”) to John [786]*786F. Logan’s (“trustee”) motion for confirmation of Betty Suzanne Hubbell’s (“debt- or”) chapter 13 plan of reorganization. A hearing was held on July 17, 2013, in Raleigh, North Carolina.

At the conclusion of the hearing, the court took the matter under advisement and afforded the parties the opportunity to file post-hearing memoranda of law outlining their respective positions. The court also indicated that it would first determine whether the interest rate on RBS Citizens’ claim could be modified pursuant to § 1322(c)(2) of the Bankruptcy Code.1 In the event that the interest rate was subject to modification under 1322(c)(2), the court would address and select the appropriate interest rate at a subsequent proceeding.2

BACKGROUND

On July 25, 1986, Phillip Flores and his wife, Sue Flores, executed a promissory note in favor of RIHT Mortgage Corporation (“RIHT Mortgage”) in the original principal amount of $57,609 with interest accruing at 9.5% per annum (“promissory note”). By its terms, the promissory note became due and payable in full on August 1, 2016. The promissory note contained an acceleration clause, which provided as follows:

If default be made in the payment of any installment ... and if the default is not made good prior to the due date of the next such installment, the entire principal sum and accrued interest shall at once become due and payable without notice at the option of the holder.... Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default.

To secure repayment of the promissory note and ensure their performance of all the obligations thereunder, Mr. and Mrs. Flores executed a deed of trust encumbering real property located at 141 Carriage House Trail, Garner, North Carolina and more particularly described as “all of Lot 23, Georgetown Manor according to map entitled ‘Property of Georgetown Manor, Phase III, Section D,’ recorded in Book of Maps 1985, Page 1037, Wake County Registry.” (“real property”). On April 12, 1990, the debtor acquired the real property subject to the promissory note and deed of trust. The promissory note, deed of trust and all rights thereunder were assigned to RBS Citizens’ predecessor-in-interest, American Home Funding, Inc., on January 31,1991.

The debtor filed a voluntary petition seeking relief under chapter 13 of the Bankruptcy Code on June 8, 2012. RBS Citizens filed a proof of claim,3 which was subsequently amended on August 2, 2013, in the amount of $12,805.54 and consisted of outstanding principal and interest of $11,447.54, an escrow advance of $1,332.78, and accumulated late fees of $25.22. The [787]*787claim is evidenced by the promissory note and is fully secured by the deed of trust.4 Although the date of the final payment due under the promissory note was August 1, 2016, the promissory note was accelerated and became fully due and payable on May 1, 2012, approximately one month prior to commencement of the debtor’s case.

The debtor’s proposed chapter 13 plan, as modified by the trustee in his motion for confirmation (hereinafter “proposed plan”), provides for the payment of $800 per month for five months, followed by monthly payments of $810 for fifty-three months “or until all unsecured creditors have received an amount sufficient to satisfy the requirements of § 1325(a)(4) or § 1325(b)(l)(B)[,] whichever is greater.” The proposed plan treats RBS Citizens’ claim as fully secured by the real property and proposes to pay it in full over fifty-eight months with interest accruing at 5.25% per annum. As a result, the estimated monthly payment with respect to RBS Citizens’ claim is $226.02.

RBS Citizens filed the objection currently before the court on December 5, 2012, asserting that the proposed plan cannot be confirmed because it violates § 1322(b)(2) of the Bankruptcy Code by modifying the interest rate on its claim. In support of this assertion, RBS Citizens relies on Witt v. United Companies Lending Corp. (In re Witt), 113 F.3d 508 (4th Cir.1997). In Witt, the Fourth Circuit held that § 1322(c)(2) did not effectively overrule Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), and does not permit bifurcation of an undersecured claim, which is secured by a lien on a debtor’s principal residence, into secured and unsecured portions. Witt, 113 F.3d at 513-14.

The debtor and the trustee contend that § 1322(c)(2), when read in conjunction with § 1325(a)(5), permits modification of the payment terms of RBS Citizens’ claim, including the interest rate. Relying on In re Joyner, No. 08-05647, 2008 WL 4346467 (Bankr.E.D.N.C. Sept. 17, 2008), In re Crickmore, 07-1350-5-ATS (Bankr. E.D.N.C. Aug. 29, 2007) (unpublished) (hereinafter “Crickmore I”), and In re Crickmore, 07-01350-5-ATS (Bankr.E.D.N.C. Dec. 6, 2007) (unpublished) (hereinafter “Crickmore II”), they argue that § 1322(c)(2) permits modification of the payment terms of the promissory note and deed of trust while allowing the debtor to retain the real property and pay the mortgage claim over the term of her plan at a lower interest rate. Both the debtor and the trustee take this position despite acknowledging that bifurcation of RBS Citizens’ claim into secured and unsecured components is prohibited by § 1322(b)(2).

DISCUSSION

The issue before the court is whether § 1322(c)(2), which was added by the Bankruptcy Reform Act of 1994, permits modification of the interest rate accruing on a claim secured by a lien on real property serving as a debtor’s principal residence.

Section 1322(b)(2), coined the “anti-modification” provision, provides that a “plan may ... modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence....” 11 U.S.C. § 1322(b)(2). This provision, “allows modification of the rights of both secured and unsecured creditors, subject to special protection for creditors whose claims are secured only by a [788]*788lien on the debtor’s home.” Nobelman, 508 U.S. at 327, 113 S.Ct. 2106 (holding that § 1322(b)(2) prohibits debtors from utilizing § 506 to modify or “strip down” an undersecured creditor’s lien into secured and unsecured components where the collateral serving as security is the debtor’s principal residence); TD Bank, N.A. v. Davis (In re Davis), 716 F.3d 331, 335 (4th Cir.2013) (emphasizing “that section 506(a), which classifies valueless liens as unsecured claims, operates with section 1322(b)(2) to permit a bankruptcy court ... to strip off a lien against a primary residence with no value.”);

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

Related

Koola v. Ditech Financial LLC
D. South Carolina, 2019
Hurlburt v. Black (In re Hurlburt)
572 B.R. 160 (E.D. North Carolina, 2017)
In re Varner
530 B.R. 621 (M.D. North Carolina, 2015)
In re Sanders
521 B.R. 739 (D. South Carolina, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 784, 2013 WL 4511640, 2013 Bankr. LEXIS 3444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hubbell-nceb-2013.