In re Love

553 B.R. 54, 75 Collier Bankr. Cas. 2d 1764, 2016 Bankr. LEXIS 2634, 62 Bankr. Ct. Dec. (CRR) 223, 2016 WL 3679350
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedJuly 8, 2016
DocketC/A No. 14-03226-JW
StatusPublished

This text of 553 B.R. 54 (In re Love) 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 Love, 553 B.R. 54, 75 Collier Bankr. Cas. 2d 1764, 2016 Bankr. LEXIS 2634, 62 Bankr. Ct. Dec. (CRR) 223, 2016 WL 3679350 (S.C. 2016).

Opinion

ORDER DENYING DEBTORS’ MOTION TO SELL REAL PROPERTY

John E. Waites, US Bankruptcy Judge, District of South Carolina

This matter comes before the Court on the motion of the debtors Thomas Leroy Love and Kimberly S. Love (collectively “Debtors”), seeking authority, pursuant to 11 U.S.C. § 363,1 to sell the estate’s interest in five (5) acres of real property located at 3752 Humbert Road, Johns Island, SC, TMS No. 250-00-00-160 (“5 Acres”). Na-tionstar Mortgage, LLC (“Nationstar”) filed an objection to the relief requested by the Debtors.

After considering the arguments of counsel and the evidence presented, including the testimony of the Debtors’ expert witness David McCall, as well as the pleadings and applicable law, the Court denies the relief requested by the Debtors, making the following findings of fact and conclusions of law:2

FINDINGS OF FACT

1. The Debtors filed a petition under Chapter 13 of the Bankruptcy Code on June 2, 2014.

2. The 5 Acres that is the subject of the Debtors’ motion is comprised of five (5) acres out of a larger, 22 acre parcel of land owned by the Debtors (“Entire Parcel”). Fifteen acres of the Entire Parcel is vacant land, and the remaining seven (7) acres contains the Debtors’ principal residence, a barn, pool, and two ponds.

3. Nationstar is the holder of a secured claim against the Debtors in the amount of approximately $503,000. Nationstar’s claim is secured by a first mortgage lien on the Entire Parcel. Nationstar’s interest in the Entire Parcel, including the 5 Acres, is not in dispute.

4. On August 26, 2014, the Court entered an order confirming the Debtors’ Amended Chapter 13 plan filed July 17, 2014 (“Debtors’ Confirmed Plan”).

5. With respect to Nationstar’s claim, the Debtors’ Confirmed Plan provides that the Debtors’ will cure the pre-petition ar-rearage by making payments of $700 per month, at 0% interest, through the Chapter 13 Trustee. The Debtors’ Confirmed Plan further provides that the Debtors will resume making their regular monthly mortgage payments directly to Nationstar commencing with the payment due July 2014.

6. Section III.A of the Debtors’ Confirmed Plan, which describes payments to be made by the Debtors to the Chapter 13 trustee, contains the following non-standard language regarding the Entiré Parcel:

Further, Debtors shall tender net nonexempt proceeds from the sale of their real property, either the 15 acre undeveloped parcel or the 7 acre parcel where the personal residence is located, to the Trustee within twenty four (21p) months after entry of the order confirming Plan, Debtors shall be entitled to an additional twelve (12) month time peri [56]*56 od to sell the property, provided that proof, satisfactory to the Trustee, of the prospects for sale of the property is shown to Trustee. In the event the property has not sold and debtor cannot show reasonable prospects for a sale, the Debtors shall amend their plan to provide for monthly installments sufficient to adequately fund their Plan.

See Debtors’ Confirmed Plan at 2.

7. On February 19, 2015, pursuant to the Debtors’ request the Court entered an order authorizing loss mitigation/mediation.

8. After the Debtors failed to comply with the terms of a Settlement Order entered on February 18, 2015 by failing to make mortgage payments due from July 2014 through March 2016, Nationstar- obtained relief from the automatic stay on April 11, 20016 to enable it to pursue its non-bankruptcy remedies against the Entire Parcel.

9. On August 21, 2015, the Debtors’ counsel filed a Mortgage Loan Modification Report, wherein she reported that loss mitigation/mortgage modification was denied or had failed.3

10. The Debtors’ Motion seeks authority from the Court pursuant to § 363 to sell the 5 Acres to an adjacent landowner for a gross sale price of $100,000 (“Sale Proceeds”).4 The Debtors propose to tender the Sale Proceeds to Nationstar for Na-tionstar to apply to any past due payments. ' The Debtors further propose that, in exchange for its receipt of the Sale Proceeds, Nationstar be required to release its lien on the 5 Acres, but be permitted to retain its lien on the remainder of the Entire Parcel.

11. It is undisputed that the Sale Proceeds are insufficient to pay the Nations-tar debt in full. It is unclear from the record whether the Sale Proceeds will be sufficient to cure the arrearage.5

12. The Debtors assert that if approved, the proposed transaction would enable them to substantially reduce the deficiency, would increase the marketability of the remainder of the Entire Parcel and facilitate their efforts to sell the same, all while leaving a sufficient equity cushion to protect Nationstar’s interest in its collateral.

13. No evidence was introduced as to the current balance due Nationstar, although Nationstar’s proof of claim filed on August 27, 2014, indicates a balance due of $497,039.29. Additionally, no evidence was introduced as to the value of the Entire Parcel or the exact amount of Nationstar’s arrearage. However, the parties agree that there is equity in the Entire Parcel over and above Nationstar’s lien.

[57]*5714. Counsel for the Debtors indicated that whether or not the Motion was granted, the Debtors do not intend to either retain or remain in possession of the Entire Parcel; rather, they will to give up the property at the conclusion of the foreclosure process. Counsel advised the Court that she believed that the Debtors only had six (6) more payments to complete payments to the trustee under the Confirmed Plan.

15. In support of the Motion, the Debtors presented the testimony of David McCall, a real estate broker/land developer. Mr. McCall’s testimony indicated that he was very familiar with the Entire Parcel and the proposed transaction. Mr. McCall testified that despite their efforts to sell the Entire Parcel intact, the Debtors have been unable to obtain a purchaser for the Entire Parcel. Mr. McCall further testified that, in his view, the value of the Entire Parcel would not be diminished by the proposed sale but rather, the sale of the 5 Acres would likely result in increased marketability for the remainder of the Entire Parcel.

16. Nationstar voiced numerous objections to the relief requested by the Debtors. First, it disputes the assertions that severance of the 5 Acres from the Entire Parcel will increase the value and marketability of each of the parcels. Second, despite the Debtors’ proposal to tender the Sale Proceeds to be applied to the arrear-age, Nationstar maintains that the account will still be delinquent (although the extent of the shortfall is unclear). Finally, Na-tionstar argues that it has obtained relief from the automatic stay and is entitled to continue to pursue its state law remedies against the Entire Parcel.

17.Nationstar introduced no evidence or testimony in support of its arguments, relying instead on the arguments of counsel.

CONCLUSIONS OF LAW

Although the automatic stay has been modified to permit Nationstar to bring the foreclosure action, the Entire Parcel is still an asset of the estate. 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
553 B.R. 54, 75 Collier Bankr. Cas. 2d 1764, 2016 Bankr. LEXIS 2634, 62 Bankr. Ct. Dec. (CRR) 223, 2016 WL 3679350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-love-scb-2016.