In re Rogers

500 B.R. 537, 2013 WL 5804003, 2013 Bankr. LEXIS 4432
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedOctober 11, 2013
DocketNo. GL 13-01464
StatusPublished
Cited by6 cases

This text of 500 B.R. 537 (In re Rogers) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Rogers, 500 B.R. 537, 2013 WL 5804003, 2013 Bankr. LEXIS 4432 (Mich. 2013).

Opinion

OPINION DENYING CONFIRMATION OF DEBTOR’S PROPOSED CHAPTER 13 PLAN

JAMES D. GREGG, Bankruptcy Judge.

I. ISSUE.

May a chapter 13 plan be confirmed that modifies a protected residential mortgage so attorneys’ fees may be paid first?

II. JURISDICTION.

This court has jurisdiction over the bankruptcy case. 28 U.S.C. § 1334. This bankruptcy case and all related proceedings have been referred to this court for decision. 28 U.S.C. § 157(a); L.Civ.R. 83.2(a) (W.D. Mich.). This contested matter is a core proceeding and this court may enter a final order. 28 U.S.C. § 157(b)(2)(L) (confirmations of plans).

[539]*539III. FACTS AND PROCEDURAL HISTORY.

There are no contested facts in the matter before the court. At issue is a chapter 13 plan provision which has been objected to by a mortgage holder. A summary of the procedural history is helpful to understand this dispute.

On February 27, 2018, Melissa Starr Rogers (“Debtor”), filed her Chapter 13 Voluntary Petition. (Dkt. No. 1). Listed on Schedule A — Real Property is the Debtor’s residence, owned as tenants by the entirety with her non-debtor husband Greg Rogers. Listed on Schedule D— Creditors Holding Secured Claims is Na-tionstar Mortgage, which has a mortgage on the residence. Although the record is somewhat unclear, it appears that Ocwen Loan Servicing, LLC (the “Mortgage Creditor”), is the servicer of the Nations-tar (or its successor’s) mortgage.

On February 28, 2013, the Debtor filed her Original Chapter 13 Plan (“Plan”). (Dkt. No. 6). The Plan provides that the monthly payment to the Mortgage Creditor is $971.96 and that the estimated ar-rearage on the mortgage is $4,000.00. The Plan provides that the Debtor shall pay $1,950.00 per month to the chapter 13 trustee (“Trustee”). Attorneys’ fees are disclosed to be $3,000.00. Of this amount, $1,355.00 is to be paid directly by the Debtor and the balance of $1,645.00 is to be paid by the Trustee through the Plan.

In the priority of payments designated by the Plan, attorneys’ fees and expenses are to be paid prior to payments on continuing claims, including the on-going monthly mortgage payments owed to the Mortgage Creditor. See Plan, ¶ IV.H.I.4. (striking the provision “subject to monthly continuing claims payments”). (Dkt. No. 6). This striking of this district’s model plan provision is reiterated in paragraph IV.P.7. which states that attorneys’ fees will be paid prior to the on-going monthly payments, including the Mortgage Creditor’s regular mortgage payment.

On April 5, 2013, the Mortgage Creditor filed its Objections to Confirmation. (Dkt. No. 17). The principal objection is that “the Debtor’s proposed Plan of Reorganization attempts to modify the mortgage hejd by [Mortgage] Creditor in contravention of 11 U.S.C. Section 1322(b)(2) by spreading post-petition/pre-confirmation payments over time.”

On May 13, 2013, the Debtor filed her First Pre-Confirmation Plan Amendment. (Dkt. No. 21). That amendment did not change the proposed priority of payment between attorneys’ fees and the on-going future mortgage payments.

The initial confirmation hearing took place on May 14, 2013, in Lansing, Michigan. The court requested legal memoran-da from the Debtor and the Mortgage Creditor. On June 14, 2013, the Debtor submitted her Brief in Opposition to Ocwen Loan Servicing, L.L.C.’s Objections to Confirmation (“Debtor’s Brief’). (Dkt. No. 24). On July 5, 2013, the Mortgage Creditor filed its Brief in Support of Objections to Confirmation. (Dkt. No. 27). On July 8, 2013, the Debtor filed her Supplemental Brief. (Dkt. No. 28). At the adjourned confirmation hearing on July 12, 2013, the court took this matter under advisement.

IV. DISCUSSION.

A. The Anti-Modification Provision and Protected Mortgages.

Chapter 13 of the Bankruptcy Code1 generally permits modification of the [540]*540rights of secured creditors. § 1322(b)(2). However, an important exception exists. No modification of “a claim secured only by a security interest in real property that is the debtor’s principal residence” is permitted. § 1322(b)(2); Nobelman v. American Sav. Bank, 508 U.S. 324, 329, 113 S.Ct. 2106, 2110, 124 L.Ed.2d 228 (1993) (“rights” that a mortgagee has are protected by § 1322(b)(2)). The court refers to this exception as the “anti-modification provision.” A mortgage covered by this provision is sometimes referred to as a “protected mortgage.”2

Protected mortgages may not be modified in any manner. What a mortgage requires is binding upon a debtor. The major effect is that the monthly payments, the interest rate, and the amortization must remain constant. Cf. Nobelman, 508 U.S. at 331-32, 113 S.Ct. at 2111 (amount of monthly payment, interest rate and amortization schedule are interrelated contractual rights); see also Rake v. Wade, 508 U.S. 464, 468-69, 113 S.Ct. 2187, 2190, 124 L.Ed.2d 424 (1993) (“Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific ‘no modification’ exception for holders of claims secured only by a lien on the debtor’s principal residence.”). Further, when a protected mortgage is not fully paid during the chapter 13 plan duration, the remaining balance is nondis-chargeable as a long term debt under § 1328(a)(1) (incorporating § 1322(b)(5)). Also, a debtor may not reject a protected mortgage’s ancillary provisions such as payment of real property taxes, maintenance of adequate insurance, or the utilization of an escrow account. Cf. Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110 (rights are determined by mortgage documents that are enforceable under state law).

In this district, nearly all protected mortgages are treated by paying postpetition monthly mortgage payments as they become due and curing any prepetition arrearages during the life of the plan within a “reasonable time.” § 1322(b)(5).3 The model chapter 13 plan used in this district provides for maintaining continuing payments and curing of past arrearages. Plan, ¶ 1V.H.5 (payment made on those “secured claims on which the last payment is due beyond the length of the plan and paid a set monthly payment ... including ... monthly mortgage payments”). (Dkt. No. 6).

B. Chapter 13 Plan Flexibility in Paying Attorneys’ Fees.

The Debtor’s argument is straightforward. Attorneys’ fees are an administrative expense and entitled to a second priority, to be paid only after domestic support obligations. In chapter 13, administrative [541]*541priority claims shall be paid before or concurrently with payments to creditors. § 1326(b)(1).

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Cite This Page — Counsel Stack

Bluebook (online)
500 B.R. 537, 2013 WL 5804003, 2013 Bankr. LEXIS 4432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rogers-miwb-2013.