In re Residential Capital, LLC

513 B.R. 856, 2014 Bankr. LEXIS 3250, 59 Bankr. Ct. Dec. (CRR) 241, 2014 WL 3747316
United States Bankruptcy Court, S.D. New York·Decided July 31, 2014·No. Case No. 12-12020 (MG) Jointly Administered·Published·Cited by 3 cases

Opinion

MEMORANDUM OPINION AND ORDER SUSTAINING THE RESCAP BORROWER CLAIMS TRUST’S OBJECTION TO CLAIM NO. 5282 OF MICHELLE LAWSON

MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE

Michelle Lawson is current on her first lien mortgage loan (the “First Mortgage”) and second lien mortgage loan (the “Second Mortgage”), both originated in December 2004. Debtor GMACM Mortgage, LLC (“GMACM”) played no role in the origination of either the First Mortgage or Second Mortgage, but it bought the Second Mortgage in February 2007 and owned it for approximately one month before selling it to a securitization trust. After selling the Second Mortgage, GMACM retained the mortgage servicing rights until February 16, 2013, when servicing was transferred to Ocwen Loan Servicing, LLC (“Ocwen”). Lawson’s claims arise from the Second Mortgage, which was originated by Trident Second Mortgage Company (“Trident”). Aside from her origination claims, Lawson also asserts that the Debtors provided insufficient responses to her requests for documentation of her Second Mortgage, and the Debtors are also purportedly liable for misrepresentations and fraud regarding the nature and existence of her Second Mortgage. Lawson seeks rescission of the Second Mortgage and damages amounting to the face value of the note plus interest payments.

As explained in detail below, Lawson cannot maintain a claim against the Debtors for Trident’s alleged fraudulent lending practices and violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”). Lawson also claims that she believed she was only entering into one loan agreement, not two; but even if true, that does not state a claim against the Debtors because the Debtors did not originate either loan. Additionally, Lawson fails to plead a plausible claim for fraudulent misrepresentation against GMACM, and her claim under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. (“RESPA”) fails because she never submitted a qualified written request (“QWR”) required to trigger a RESPA claim. Finally, Lawson’s allegations of counterfeiting constitute an untimely and improper amendment to her proof of claim.

The Court SUSTAINS the ResCap Borrower Claims Trust’s (the “Trust”) objection to claim number 5282 (the “Claim”), [861]*861and the Claim is DISALLOWED and EXPUNGED.

I. BACKGROUND

A. Procedural History

On May 14, 2012, each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The General Bar Date to file proofs of claim was originally set as November 9, 2012, and was extended to November 16, 2012 at 5:00 p.m. (Prevailing Eastern Time). (ECF Doc. # 2093.) Lawson timely filed the Claim on November 8, 2012.

The Court entered an order on March 21, 2013 (the “Procedures Order,” ECF Doc. #3294), authorizing the Debtors to file omnibus objections on various grounds, including those provided in Bankruptcy Rule 3007(d) and certain additional grounds. The Procedures Order included specific protections for Borrowers1 that the Debtors (and now the Trust) must follow before objecting to certain categories of Borrower claims. For example, before objecting to certain Borrower claims, the Trust must send the Borrower a letter (a “Request Letter”) requesting additional documentation in support of the Borrower’s claim. (See Procedures Order at 3-4.)

On December 11, 2013, the Court entered an order (ECF Doc. # 6065) confirming the Second Amended Joint Chapter 11 Plan Proposed by Residential Capital, LLC et al. and the Official Committee of Unsecured Creditors (the “Plan,” ECF Doc. #6065-1). The Plan became effective on December 17, 2013 (the “Effective Date”). (ECF Doc. # 6137.) On the Effective Date, the Trust and the ResCap Liquidating Trust were established as successors in interest to the Debtors; the Trust is the successor in interest with respect to Borrower Claims. (Id.) The Trust was established to, among other things, “(i) direct the processing, liquidation and payment of the Allowed Borrower Claims in accordance with the Plan, and the distribution procedures established under the Borrower Claims Trust Agreement, and (ii) preserve, hold, and manage the assets of the Borrower Claims Trust for use in satisfying the Allowed Borrower Claims.” (Confirmed Plan, Art. IV.F.) The Trust is empowered to object to borrower claims that it believes do not reflect liabilities of the Debtors.

On April 22, 2014, the Trust filed the ResCap Borroiver Claims Trust’s Sixty-Second Omnibus Objection to Claims (No Liability Borrower Claims) (the “Objection,” ECF Doc. # 6815). In support of the Objection, the Trust submitted the Declarations of Deanna Horst (the “Horst Deck,” Obj. Ex. 1) and Norman Rosen-baum (Obj. Ex. 2). Lawson filed a response to the Objection (the “Opposition,” ECF Doc. # 7040), and the Trust submitted a reply (the “Reply,” ECF Doc. # 7062), supported by a supplemental Declaration of Deanna Horst (the “Supp. Horst Deck,” ECF Doc. # 7062-1). The Court heard argument on the Objection on June 10, 2014 (the “Hearing”) and took the matter under submission.

Before the Trust filed this Objection, the Debtors sent Lawson a Request Letter on June 21, 2013. The Request Letter asked Lawson to explain the legal and factual bases for her Claim, and to provide supporting documentation. (See id. ¶ 6.) Lawson provided a response (the “Diligence Response,” id. Ex. A-4).

[862]*862B. Lawson’s Proof of Claim

Lawson’s proof of claim asserts an $89,-667.982 claim against ResCap3 with the stated basis of “Secondary Mortgage Note.” Lawson also attached several documents in support of her claim, including: (1) a “Statement of Claims” appended to her proof of claim (the “Lawson Statement,” Claim at 1-3); (2) an October 19, 2004 letter from Trident indicating preap-proval of a mortgage subject to certain specified conditions (the “Preapproval Letter,” Claim, Ex. A); (3) a copy of the promissory note evidencing her second loan (the “Note,” Claim, Ex. B.); (4) an amortization schedule that Trident provided to her (the “Amortization Schedule,” Claim, Ex. C); and (5) GMACM account statements (the “GMACM Statements,” Claim, Ex. D).

Trident originated two loans for Lawson, the First Mortgage, in the amount of $273,600.00, and the Second Mortgage, in the amount of $51,300.00. Lawson’s Claim relates to the Second Mortgage, which was originated by Trident on December 3, 2004. (Supp. Horst Decl. ¶ 19.) The Second Mortgage was evidenced by the Note and was secured by a second deed of trust to property in Philadelphia, Pennsylvania. (Id.) The Second Mortgage includes a balloon payment rider (the “Rider”), signed by Lawson, that requires Lawson to make a balloon payment (the “Balloon Payment”). (Id.) No Debtor was involved in originating either the First or Second Mortgage. (Id. ¶ 20.) GMACM purchased the Second Mortgage from Trident on February 21, 2007, and then transferred the Second Mortgage loan to a sec-uritization trust on March 30, 2007. (See ECF Doc.

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In re Residential Capital, LLC, 513 B.R. 856, 2014 Bankr. LEXIS 3250, 59 Bankr. Ct. Dec. (CRR) 241, 2014 WL 3747316 (N.Y. 2014).

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