MEMORANDUM OPINION
ERIC L. FRANK, Bankruptcy Judge.
I. INTRODUCTION
Before me is the objection by Christina M. Sims (“the Debtor”) to the proof of claim filed by Citifinancial Mortgage Company, Inc. (“Citifinancial”). The proof of
claim is based upon a mortgage loan between Citifinancial and the Debtor. Resolution of this contested matter requires the application of fundamental principles of contract interpretation to both a settlement agreement between the parties in an adversary proceeding and the Debtor’s confirmed Chapter 13 Plan. For the reasons discussed below, I sustain the Debt- or’s objection in part and reduce Citifinancial’s allowed claim from $269,506.49 to $238,706.90.
II. FACTS AND PROCEDURAL HISTORY
The facts that give rise to this claims objection are rooted in a mortgage foreclosure judgment Citifinancial obtained against the Debtor in the Court of Common Pleas, Philadelphia County on March 6, 2003 in the amount of $186,233.49. The property at issue was the residence the Debtor jointly owned with her mother (“the Subject Property”).
This bankruptcy case is the Debtor’s third attempt to use the bankruptcy system. Presumably, each case was filed in an attempt to prevent the foreclosure of the Subject Property. The Debtor first filed a Chapter 13 bankruptcy case on June 2, 2003, docketed at Bky. No. OS-18454. This first case was dismissed on October 28, 2003. The Debtor’s second Chapter 13 bankruptcy case was filed on February 2, 2004, docketed as Bky. No. 04-11409. The second case was dismissed on March 8, 2004, one month after filing, for failure to file the bankruptcy schedules. The third filing (the present case) on May 13, 2004 did not prevent the sheriffs sale of the Subject Property, which took place as scheduled on May 4, 2004. At the May 4, 2004 sheriffs sale, the Subject Property was sold to Citifinancial.
See
Exhibit D-5 (Civil Docket Report,
Citifinancial Mortgage Company, Inc. v. Evans et. al.,
No. 3107, January Term 2003 (C.P.Phila.) at Docket Entry dated May 4, 2004).
On July 26, 2004, the Debtor filed an adversary proceeding, Adv. No. 04-754, seeking to avoid the sheriffs sale as a preference under section 547 of the Bankruptcy Code. Shortly thereafter, on August 27, 2004, Citifinancial filed Proof of Claim No. 1 setting forth a total claim of $203,922.52 with an arrearage of $64,764.97. On September 2, 2004, Citifinancial filed a Proof of Claim No. 2 setting forth the amounts identical to those listed in Proof of Claim No. I.
The adversary proceeding was tried on April 20, 2005. Prior to submission of post-trial memoranda to the court, the parties settled their dispute. The settlement was memorialized in a Release and Settlement Agreement (“the Settlement Agreement”) approved by the court on November 4, 2005. In essence, the Settlement Agreement provided for a second, private sale of the property as follows:
Citifinancial agrees to market the premises for an initial listing amount of $400,000.00, with the option to reduce the listing amount if no activity occurs within a reasonable period of time. Christina Sims agrees to accept any funds in excess of the full amount need
ed to repay the debt owed to Citifinancial at the date of closing.
See
Exhibit D-l (Settlement Agreement).
On November 22, 2005, within weeks of the court’s approval of the Settlement Agreement, the court confirmed the Debt- or’s Second Amended Plan (“the Confirmed Plan”). The Confirmed Plan references the Settlement Agreement in paragraph 3:
The Debtor has filed an adversary proceeding seeking to avoid as a preference the sheriffs sale of the Home to the mortgagee, Citifinancial Mortgage Co. (“Citi”).
The Owners have proposed a settlement of the proceeding which they believe would be consistent with its outcome,
i.e., that the Home be sold, that Citi’s former mortgage balance will be paid off with the proceeds, and that the remainder of the proceeds will be distributed to the Debtor’s creditors and the trustees’s commissions, with the balance to be refunded to the Owners.
See
Debtor’s Confirmed Plan ¶ 3 (emphasis added).
The Confirmed Plan also specifically provides for Citifinancial’s proof of claim at paragraph 4.B. as follows:
The secured claim of [Citifinancial], which was filed in the amount of $203,992.52. This claim, as allowed, will be paid in full with the sale of the proceeds.
Id.
The private sale of the residence ultimately occurred and closed for $380,000 on or about June 22, 2006 — nearly two years after this bankruptcy case was filed. On May 5, 2006, prior to the close of the sale, the Debtor filed this objection to Citifinancial’ proof of claim, because Citifinancial pressed for a total payoff demand of $269,506.69 (“the Payoff Demand”), an amount the Debtor considered excessive.
See
Payoff Demand, Exhibit Citi — 2. Citifinancial received full payment of the Payoff Demand at the closing on June 22, 2006.
Through this claims objection, the Debt- or seeks to recover the difference between the total Payoff Demand Citifinancial received and what she believes Citifinancial was lawfully due. On August 23, 2006, the parties submitted a Stipulation of Exhibits and Facts. On August 28, 2006, a hearing was held to complete the record. Post-trial briefing by the parties was completed on October 23, 2006.
III.
THE CONTENTIONS OF THE PARTIES
The Debtor objects to Citifinancial’s proof of claim, asserting that payment of the amount of the Payoff Demand is inconsistent with the terms of the Confirmed Plan. In particular, based upon paragraph 4.B of the Confirmed Plan, the Debtor argues that Citifinancial should be paid only the amount set forth in its proof of claim — $203,922.52.
While I understand the Debtor prefers that I allow the claim in the amount listed on the face of the proof of claim, she also concedes in her brief that Citifinancial might be entitled to more. The Debtor offers two alternative arguments as to how the court should value the claim — both of which provide the Debtor a refund from the payoff Citifinancial received at the closing, but allow Citifinancial more than the amount requested in its proof of claim.
First, the Debtor suggests that the “normal” method of fixing a claim should be applied because the underlying mortgage foreclosure judgment remains valid. The Debtor proposes that Citifinancial should be entitled to the judgment of $186,233.49 plus interest at 6% through the date of
settlement on June 22, 2006.
This would yield a total claim of $223,061.37 and entitle the Debtor to a refund of $46,445.12. Under this theory, I would essentially eviscerate the sheriffs sale, deem the judgment valid and treat the mortgage as having merged into the judgment under the “doctrine of merger.”
See In re Stendardo,
991 F.2d 1089, 1095 (3d Cir.1993);
Hartman v. Ogbom,
54 Pa. 120, 123-24, 1867 WL 7345 (1867).
Alternatively, the Debtor proposes I apply paragraph 6 of the Mortgage to analyze whether Citifinancial has met its burden of proof to substantiate the Payoff Demand. The amount Citifinancial received at settlement is broken into the following seven (7) components (“the Payoff Components”):
Principal Balance $120,621.45
Interest $ 85,447.13
Escrow/Impound Advance $ 51.94
Other Fees $ 3,450.21
Expenses Paid $ 35,460.43
Corporate Advances $ 21,529.33
Foreclosure Costs_ $ 3,000.00
Total Payoff $269,506.69
The Debtor asserts that Citifinancial has not met its burden to support the Payoff Demand beyond the Payoff Components of (1) the Principal Balance and (2) Interest. These two Payoff Components total $206,068.58. However, the Debtor suggests that the language of the Mortgage may provide that Citifinancial is entitled to an additional amount of approximately $19,000: $15,000 for advances made to pay taxes, $3,000 for costs and $700 for reasonable attorneys fees.
This alternative methodology proposed by the Debtor yields an allowed claim for Citifinancial in roughly the same amount as the Debtor’s first proposed method for fixing the claim.
Citifinancial urges me to reject the application of the “first” method of fixing a claim offered by the Debtor, contending that there no longer is a judgment in light of the sheriffs sale. Citifinancial also suggests that it was the intention of the parties to the Settlement Agreement, which the Confirmed Plan expressly adopts, that “the debt owed to Citifinancial at the date of closing” includes costs and fees it paid through the date of the private sale. Specifically, Citifinancial requests that its allowed claim include amounts for payments it made toward taxes, insurance or water and sewer payments during the pendency of the case between August 23, 2004, when Citifinancial filed its proof of claim, and June 22, 2006, the date of the private sale of the Subject Property. Citifinancial therefore contends that all of the Payoff Components are proper and allowable.
IV.
DISCUSSION
A.
A properly filed proof of claim is deemed allowed unless a party in interest
objects. 11 U.S.C. § 501. In a contested matter involving an objection to a proof of claim, the burden of proof rests on different parties at different times. Even after an objection is filed, a properly filed proof of claim is
prima facie
evidence of the validity and amount of the claim. Fed. R. Bankr.P. 3001(f). If an objection is filed to a proof of claim, the burden of proof may shift.
See United States v. Baskin & Sears, P.C.,
207 B.R. 84, 86 (E.D.Pa.1997). The Court of Appeals has concisely summarized the shifting burdens as follows:
[A] claim that alleges facts sufficient to support a legal liability to the claimant satisfies the claimant’s initial obligation to go forward. The burden of going forward then shifts to the objector to produce evidence sufficient to negate the
prima facie
validity of the filed claim. It is often said that the objector must produce evidence equal in force to the
prima facie
case. In practice, the objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence.
In re Allegheny International, Inc.,
954 F.2d 167, 173-74 (3d Cir.1992) (citations omitted).
See also In re Gimelson,
2004 WL 2713059, at *13 (E.D.Pa.2004);
In re Galloway,
220 B.R. 236, 244 (Bankr. ED.Pa.1998).
B.
In determining how to value Citifinancial’s proof of claim, I must consider its treatment in the Confirmed Plan.
See
11 U.S.C. § 1327(a);
In re Szostek,
886 F.2d 1405 (3d Cir.1989) (all parties are bound by the terms of a confirmed plan until it either is completed or is modified by the court);
In re Bryant,
323 B.R. 635 (Bankr.ED.Pa.2005) (creditor who filed claim denoting both full amount of claim and a lower arrearage amount was bound by terms of confirmed chapter 13 plan that treated the lower sum as the amount necessary for full payment of the entire claim).
The Confirmed Plan refers to Citifinancial’s claim in two different paragraphs. Paragraph 3 references the adversary proceeding the Debtor filed against Citifinancial and summarizes the Settlement Agreement; specifically stating that the proceeds from the sale of the home will pay off Citifinancial’s “former mortgage balance.” Then, paragraph 4 employs language more commonly found in chapter 13 plans by referring to the payment of a claim “as allowed.” While both paragraphs contemplate that Citifinancial’s claim will be paid with the proceeds from the private sale of the Subject Property, the two paragraphs refer to different documents as reference points for computing the proper amount to be distributed to Citifinancial.
I find that paragraphs 3 and 4, when read together, render the Confirmed Plan ambiguous as to the treatment of Citifinaneial’s claim.
See USX Corp. v. Penn Cent. Corp.,
130 F.3d 562, 566 (3d Cir.1997) (contract is ambiguous if the terms of the contract are susceptible of different meanings). To resolve this ambiguity in the Confirmed Plan, I must apply general principles of contract interpretation.
In re Mershon,
2005 WL 4030035, *2 (Bankr.S.D.Ohio 2005) (citing
In re Harvey,
213 F.3d 318, 321 (7th Cir.2000)) (“[a] confirmed chapter 13 plan is essentially a binding contract between a debtor and each creditor”).
In this case, my function is to “interpret the contract’s terms, in light of the apparent purpose of the contract as a whole, the rules of contract construction, and extrinsic evidence of intent and meaning.” Richard A. Lord, 11
Williston on Contracts
§§ 30:4, 7 (West 2006)
{‘Williston
”). I am mindful that the Confirmed Plan makes an express reference to the settlement of the adversary. Though imprecise, the language seemingly incorporates the agreement the parties reached to resolve the adversary proceeding — what I have referred to as the Settlement Agreement in this Memorandum. As explained by a leading treatise:
Where the words employed to express some particular term of a contract are ambiguous and cannot be satisfactorily explained by reference to other parts of the contract and the parties have made other contracts in respect of the same subject matter, apparently in pursuance of the same general purpose, it is always permissible to examine all of them together in aid of the interpretation of the particular term; and if it is found that the ambiguous words have a plain meaning by a comparison of the several contracts and an examination of their provisions, that meaning should be attributed to them. When an ambiguous contract by necessary implication refers to another document, the court may look to such document as additional evidence to ascertain the parties’ intentions.
Williston
§ 30:26. Accordingly, I find it necessary and appropriate to analyze the Settlement Agreement in order to give effect to the operative language of the Confirmed Plan.
Interestingly, the Settlement Agreement also uses somewhat vague terminology. It provides that the proceeds from the sale of the residence would repay “the debt owed to Citifinancial at the date of closing.” However, nowhere does the Settlement Agreement clarify what instrument, if any, controls the calculation of the “debt owed.” Therefore, I must consider the facts and circumstances surrounding the Settlement Agreement to ascertain the parties’ intentions.
See Martin v. Monumental Life Ins. Co.,
240 F.3d 223, 232 (3d Cir.2001);
see also Williston
§ 30:2. Doing so enables me to ascertain the proper methodology for calculating Citifinancial’s allowed claim.
The issue in the adversary proceeding was the validity of the sheriffs sale. The parties resolved the dispute by agreeing to a private sale of the subject property. In exchange for Citifinancial’s agreement permitting the Debtor to realize some of the equity in the property through a private sale, the Debtor agreed that Citifinancial should receive what it was lawfully due under its original agreement with the Debtor — as set forth in the Mortgage and the Note.
The mechanism employed to effect a settlement — the private sale of the subject property — made it unnecessary for the parties to address either the 2003 foreclosure judgment or the 2004 sheriffs sale and consequently, the Settlement Agreement is silent as to both. The primary contingency addressed in the Settlement Agreement was the possibility that the private sale might not occur within a certain time frame.
After considering the circumstances surrounding the parties’ entry into the Settlement Agreement and the language of the document, I find that while the parties did not intend to invalidate either the foreclosure judgment or the sheriffs sale, they did intend for the Mortgage and the Note to be the controlling instruments in determining the “debt owed to Citifinancial at the date of closing.” Put another way, the parties intended that the Settlement Agreement result in the virtual restoration of the Mortgage for purposes of calculating the amount due Citifinancial at the closing of the projected private sale while simultaneously leaving the judgment and sheriffs sale unimpaired but subject to further litigation in the adversary proceeding.
C.
Having resolved the threshold ambiguity under the Settlement Agreement, I now return to the Confirmed Plan, the operative instrument in this claims objection. Appreciating the tension between the two paragraphs referencing Citifinancial’s claim, I resolve that tension in favor of paragraph 3 as I believe the overriding goal of the parties was to effectuate the settlement of the adversary proceeding.
Paragraph 3 itself is not entirely free of ambiguity. I refer, in particular, to the meaning of the term “former mortgage balance.” The Debtor would have me construe the phrase in the past tense. In other words, the Debtor would like me to read the word “former” to modify “mortgage balance” as though the Mortgage no longer exists by virtue of the 2003 foreclosure judgment. Thus, the Debtor would have me apply the judgment to fix the claim, if I chose not to use the amount on the face of the proof of claim.
The Debtor’s proffered construction clearly runs afoul to the parties intentions under Settlement Agreement. As explained, the Settlement Agreement revived the Mortgage — not legally, but as a means for calculating the amount of money to be distributed to Citifinancial under the Confirmed Plan. Any doubt concerning the meaning of paragraph 3 must be construed against the Debtor, the drafter of the Confirmed Plan.
See Mershon,
2005 WL 4030035 at *2. Therefore, as contemplated by the Confirmed Plan, the proceeds from the sale of the residence were to be applied to pay off what Citifinancial is lawfully due under the Mortgage.
D.
I will now turn to the operative remedial language in the Mortgage.
Paragraph 6 of the Mortgage provides: In the event the Mortgagor defaults in the making of any payments due and payable under said Note or in the keeping and performance by Mortgagors of any of the conditions of covenants of this Mortgage or said Note, Mortgagee shall be entitled to the rents, issues and profits from the Mortgaged Premises and Mortgagee may forthwith bring an Action of Mortgage Foreclosure hereon or institute other foreclosure proceedings upon this Mortgage and may proceed to judgment and execution to recover
the balance due on said Note
and any other sums that may be due thereunder, including
reasonable attorney’s fees, costs of suit,
and
costs of sale,
all as allowed by law, together with interest after judgment until the full amount due Mortgagee is paid.
Exhibit D-3 (Mortgage) (emphasis added).
The Note incorporates the Mortgage’s remedies for a default by stating:
If [Mortgagor] defaults ... [Mortgagee] ha[s] the rights and remedies provided for in the Mortgage that secures this loan, including the right to require [Mortgagor] to pay any deficiency.
Exhibit D-4 (Note).
The only additional remedial provision in the Note provides for attorney’s fees, but it is seemingly redundant:
[Mortgagor] agree[s] to pay reasonable attorney’s fees if this Note is referred for
collection to an attorney who is not [Mortgagee’s] salaried employee.
The remedies provided to Citifinancial by the Mortgage are noticeably limited in scope. Many residential mortgages authorize mortgage lenders to make advances for delinquent taxes, water or other charges and then add those advances to the debt secured by the mortgage.
However, the mortgage between Citifinancial and the Debtor here contains no such provision. Based on the plain language of the Mortgage, in calculating the amount due, I find that Citifinancial’s entitlement is limited to four (4) components: (1) balance due on the note
(i.e.,
unpaid principal and accrued interest); (2) reasonable attorneys fees; (3) costs of suit; and (4) costs of sale.
What complicates analysis of the parties’ dispute is that the Payoff Demand of $269,506.69 is comprised of seven (7) Payoff Components that are not easily reconciled with the four (4) components set forth in the Mortgage. The Payoff Demand consisted of: (1) Principal Balance; (2) Interest; (3) Escrow/Impound Advance; (4) Other Fees; (5) Expenses Paid; (6) Corporate Advances; and (7) Foreclosure Costs and Counsel Fees. Consequently, I must compare the Payoff Components with the terms of the Mortgage in order to determine whether Citifinancial has met its burden of proof and is entitled to allowance in its proof of claim of the full amount of the Payoff Amount.
E.
To begin, the Debtor does not contest the first two Payoff Components, the Principal Balance and Interest. Therefore, those amounts will be allowed.
As to the remaining five Payoff Components, Citifinancial submitted into evidence attorney invoices and a five (5) page document entitled “Fee Breakdown,” which provides a line-by-line list of costs and fees associated under three Payoff Components — “Other Fees,” “Expenses Paid,”
and “Corporate Advances.”
See
Exhibit Citi-3 (Fee Breakdown).
Following the general format employed in Exhibit Citi-3, I have prepared several tables and summaries to explain the items I am allowing or disallowing and to associate those items with the appropriate Mortgage provision authorizing Citifinancial to hold the Debtor liable for charges other than principal and interest on the Note. After each table, I provide a brief explanation of the reasons why the items have been allowed or disallowed.
Table I: Expense Advances
Incurred Description Cost Allowed/Disallowed Mortgage Provision
1/26/2005 Eviction costs $ 241.50 Disallowed none
1/26/2005 Eviction attorney $ 400.00 Disallowed none
1/26/5005 Sheriffs settlement $ 1,316.00 Disallowed none
5/5/2004 Title Search $ 125.00 Alowed costs of sale
5/5/2004 FCL Attorney Fee $ 300.00 Alowed reasonable atty fees
5/5/2004 FCL Attorney Costs $27,614.32 Alowed costs of sale
5/5/2004 Process Server $ 607.50 Alowed costs of suit
5/5/2004 Recording Fee $ 74.50 Alowed costs of sale
5/5/2004 Filing Fee $ 30.00 Alowed costs of suit
6/11/2003 Title Search $ 425.00 Alowed costs of sale
6/11/2003 FCL Attorney Fee $ 1,625.00 Allowed, but reduced reasonable atty fees
6/11/2003 FCL Attorney Costs $ 2,125.00 Alowed costs of sale
6/11/2003 Process Server $ 392.00 Alowed costs of suit
6/11/2003 Filing Fee $ 105.50 Alowed costs of suit
fBlankl_[Unexplained] $ 25.61 Disallowed _ none
Total Expenses $35,406.43
As set forth in Table I, I find that of the Expense Advances, $32,498.82 will be allowed and $2,908.11 will be disallowed. Of the allowed expenses, $1,134.50 are attributed to costs of suit, $30,363.82 are attributed to costs of sale, and $1,000 are attributed to reasonable attorneys fees.
A further explanation is necessary with respect to the $27,614.32 listed in Table I as “FCL Attorney Costs.” This charge was given detailed treatment at the hearing and in Citifinancial’s brief.
Based on the evidence, I conclude that the charges are not attorney’s fees, but rather out-of-pocket foreclosure expenses advanced by Citifinaneial’s attorney, paid to third parties (primarily the sheriff) and reimbursed to counsel by Citifinancial. Ml
such costs were necessary to effectuate a sale and settle with the sheriff on May 4, 2005. Therefore, I am allowing the costs, but re-categorizing them as “costs of sale,” rather than as attorney costs.
As for the attorneys fees, I find that the $1,625.00 incurred in 2003 is attributable to the foreclosure action, which was initially stayed, after the entry of a default judgment against the Debtor, by the filing of the Debtor’s first bankruptcy case.
However, I will reduce those fees to $700.00 pursuant to my decision in
Gordonr-Brown.
I will allow an additional $300.00 incurred in 2004 for the work performed between the second and third bankruptcy cases to effectuate the 2004 sheriffs sale.
I am disallowing the January 26, 2005 costs totaling $ 1,975 that pertained to an eviction action, presumably against the Debtor. There is nothing in the language of the Mortgage or Note that entitles Citifinancial to these costs, which were incurred
after
the sheriffs sale. I also am disallowing the charge of $25.61 because it had no date entry and was unexplained by Citifinancial.
Table II: Corporate Advances
Incurred Description Cost Allowed/Disallowed Mortgage Provision
5/23/2002 Fcl Fees $ 296.00 Disallowed none
5/23/2002 Fcl Costs $ 100.00 Disallowed none
3/18/2002 6/23/2003-City of Philadelphia $18,775.78 none
11/29/2005 Source One Cor (BPO) $ 1,430.00 Land American Default Disallowed none
3/11/2003 Ser (Title Bringdown) $ 135.00 Allowed cost of suit
9/16/2002 Title Report $ 250.00 Disallowed none
5/24/2002 Corp Adv (3) $ 396.00 Disallowed none
9/20/2005 4/0/2004-unexplained $ 7.75 Disallowed none
12/29/2005 Inspections (17) $ 139.00 Disallowed none
Total Corporate Expenses $21,529.53
I find that of the Corporate Advances, only $135.00 will be allowed for the 2003 “Title Bringdown” fee because it is attributable to the costs of sale.
See In re McMillan,
182 B.R. 11, 15 (Bankr.E.D.Pa.1995). I am disallowing the remaining $21,394.53.
I will first address my disallowance of the substantial payment of $18,775.78 allegedly made to the City of
Philadelphia. If for no other reason than the record did not explain or corroborate the reasons for the costs, I am disallowing it. Citifínancial states only that payment was for taxes, water and sewer payments. The Debtor rebutted this evidence by testifying that although there was a tax delinquency, she paid her taxes through 2001 and thereafter, there was only approximately $15,000 in tax liability. Citifinancial did not reconcile this 2002 figure with the $18,493.01 for delinquent
and
current tax liability, water and sewage costs paid to settle with the sheriff in May 2004.
In other words, the evidence presented suggests a substantial possibility that the amount claimed duplicated the City charges paid to obtain the sheriffs deed in foreclosure.
Even if the Debtor’s testimony was inaccurate and Citifínancial advanced $18,775.78 for unpaid real estate taxes in and prior to 2002 and then advanced additional substantial sums in closing with the sheriff for real estate taxes accruing after 2002, I still find that this Corporate Advance is not allowable. This Corporate Advance was not made in connection with the sale of the property. Therefore, it cannot be characterized under the Mortgage as a cost of sale and there is no provision in the Mortgage that permits Citifínancial to recover Corporate Advances. As explained above, the Mortgage does not authorize Citifínancial to advance money to pay taxes, water or other charges because the Debtor has failed to pay such charges or because Citifínancial deems its lien position to be insecure. While Citifinancial’s decision to make the alleged Corporate Advances is understandable, the Mortgage does not entitle Citifinancial to add those payments to the outstanding mortgage debt.
I am also disallowing the 2002 “Fcl Fees” and “Fcl Costs” totaling $396.00, the “Corp Adv” costs totaling $396.00, and the 2002 Title Report for $250.00. These entries are from 2002 and have not been attributed to either the 2003 foreclosure action or the 2004 sheriffs sale. Citifinancial has not provided any explanation as to the nature of the costs or why they were incurred. Nor has Citifínancial provided any invoices to substantiate these fees or costs.
Finally, I am disallowing the cost for the seventeen (17) inspections that occurred between April 2004 and December 2005 and the eight appraisals/BPOs that occurred between June 2003 and November 2005.
See In re Giordano,
234 B.R. 645, 651 (Bankr.E.D.Pa.1999) (inspection fee disallowed);
In re Galloway,
220 B.R. 236, 243-44 (Bankr.E.D.Pa.1998) (same);
In re Rorie,
98 B.R. 215, 221 (Bankr.E.D.Pa. 1989) (appraisal fee not covered by mortgage cost shifting provision).
Table III: Other Pees
Incurred Description Cost Allowed/Disallowed Mortgage Provision
3/22/2002 NSP Pee $ 20.00 Disallowed none
1/29/2003 Fax Payoff Stmt $ 5.00 Disallowed none
12/16/2002 Pci Attorney Bills $ 3,309.96 2/19/2002 and Disallowed none
3/28/2002 Speed Pay Pee (2) $ 30.00 Disallowed none
6/18/2002-
6/13/2002 Inspections (11) $ 85.25 Disallowed none
Total Other Pees $ 3,450.21
Next, I am disallowing the entire $3,450.21 of “Other Fees.” The items listed as “Other Fees” in Table III appear indistinguishable from certain “Corporate Advances” in Table II (with the exception of the line item “Fcl Attorney Bills”). It is not to me clear why Citifinancial separated out these “Other Fees.” However, because I find them indistinguishable, I am disallowing them for the same reasons stated for my disallowance of those Corporate Advances. As for the “Fcl Attorney Bills,” these charges were incurred in 2002, prior to the initiation of the 2003 foreclosure litigation that resulted in the entry of the default judgment and, eventually, the sheriffs sale. I have already allowed some attorney’s fees for the 2003 foreclosure litigation.
See
Table I & accompanying discussion. Citifinancial has offered no evidence explaining the relationship between the “2002 Fcl Attorney Bills” and the later foreclosure. Therefore, I will disallow the charges.
Finally, I address the remaining two Payoff Components that were not detailed in the Fee Breakdown, but were included in the Payoff Demand: Escrow/Impound Advance ($51.94) and Foreclosure Costs and Counsel Fees ($3,000). I am disallowing both of them. Once again, I have already determined that Citifinancial is entitled to reasonable attorneys’ fees in the amount of $1,000 as the foreclosure attorney’s fees for work in 2003 and 2004 in connection with the default judgment obtained in state court and the sheriffs sale of the property. I am troubled by the fact that Citifinancial requested a total of $35,370.28 in attorney fees and costs for 2002, 2003 and 2004 in
three other
Payoff Components, yet there is nothing in the record to support the additional request for $3,000 under “Foreclosure Costs & Counsel Fees.” Citifinancial has the burden of establishing the reasonableness of these fees under the terms of the Mortgage. Absent any supporting evidence, I must disallow the requested fees. For similar reasons, I am disallowing the request under “Escrow/Impound Advance.” Citifinancial has neither explained the nature of the “Escrow/Impound Advance,” why it was incurred or the provision of the Mortgage entitling Citifinancial to add this expenditure to the mortgage debt.
F.
In summary, Citifinancial filed a proof of claim worth $203,922.52. The Debtor objected on the basis that at the closing of the private sale of the Debtor’s residence in June 2006, Citifinancial received more than it requested on the face of its proof of claim
(ie.,
it received its Payoff Demand of $269,506.49). Pursuant to the terms of the Mortgage, I find that Citifinancial is entitled to an allowed claim of only $238,701.90. This constitutes a reduction of $30,804.59 from the amount Citifinancial received at the closing of the private sale.
The allowed claim is comprised of the following:
Balance Due on the Note $206,068.58
Costs of Suit $ 1,139.50
Costs of Sale $ 30,493.82
Reasonable Attorneys Fees $ 1,000.00
Total Proof of Claim $238,701.90