In re Snowden

546 B.R. 39, 75 Collier Bankr. Cas. 2d 114, 2016 Bankr. LEXIS 446, 2016 WL 578969
CourtUnited States Bankruptcy Court, E.D. Kentucky
DecidedFebruary 12, 2016
DocketCASE NO. 15-51308
StatusPublished
Cited by5 cases

This text of 546 B.R. 39 (In re Snowden) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Snowden, 546 B.R. 39, 75 Collier Bankr. Cas. 2d 114, 2016 Bankr. LEXIS 446, 2016 WL 578969 (Ky. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

Gregory R. Schaaf, Bankruptcy Judge

The chapter 13 Debtors, Robin Lee and Julia Ann Snowden, proposed a reorganization plan that bifurcates the claim of Caliber Home Loans, Inc., as mortgage servicing agent and attorney-in-fact for U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust (“Caliber”) [POC 15-1], into a secured claim valued at $40,000 and an unsecured claim for the balance. [ECF No. 2.] Caliber filed its Objection to Confirmation of Debt- or’s Plan [ECF No. 24] and the Debtors tendered their Response to Objection by Creditor [ECF No. 46]. Caliber argues that the anti-modification provision of 11 U.S.C. § 1322(b)(2) prevents bifurcation of the claim. [See ECF No. 24.]

The parties appeared for a hearing on November 5, 2015, after which they jointly agreed to brief and submit the anti-modification dispute for a decision. [ECF Nos. 53 and 55.] If the Debtors are successful, and modification is allowed, then valuation of the collateral and the interest rate are subject to further proof and argument. If Caliber prevails, then additional evidence is not required. The parties complied with the briefing schedule and the matter is now submitted for a decision. [See ECF Nos. 56-63.] Based on the evidence in the record and arguments of counsel, § 1322(b)(2) does not protect Caliber’s secured claim from modification.

I. FACTS.

The parties have agreed on certain facts for consideration in making this decision. [See Joint Stipulation of Facts, ECF No. 56.] In addition, Mr. Snowden submitted an Affidavit [ECF No. 57] and Caliber attached a transcript of the Debtors’ testimony at the August 7, 2015 Meeting of Creditors [ECF No. 59-3]. Neither party objected to this evidence, so it is considered part of the record based on their joint agreement to submit this matter for decision. [See ECF Nos. 53 and 55; see also ECF No. 56 (“The Debtors and Caliber each reserve the right to supplement the record with evidence or information in addition to these stipulations ... ”).]

The Debtors own six contiguous parcels of real property that are consecutively numbered as Lots 15-20 of Mildred Estates, Garrard County, Kentucky (the “Mildred Estates Property”). Mr. Snow-den acquired Lots 15-18 and 20 in April 1998 and acquired Lot 19 from a different seller in August 1998. [ECF No. 56.] Mildred Lane runs around the exterior of the lots, essentially encircling the Mildred Estates Property. Robin Snowden described the property at the initial meeting of creditors as follows: “It’s just one little circle. It’s really just one place, but there are different deeds for every lot.” [ECF No. 59-3.]

The boundaries of the lots that comprise the Mildred Estates Property are defined according to “the plat of record in [Plat] Cabinet 1, at Slide 251,” in the Garrard County Clerk’s Office. [See ECF No. 59-1.] A copy of that plat was not made part of this record. The Debtors receive separate tax bills for each lot, with each lot assigned a distinct Map Number. [ECF No. 59-4] The property tax is assessed based on tax values ranging from $4,000.00 (Lots 15 and 17) to $70,000.00 (Lot 18). [ECF Nos. 57 and 59-4.] According to the [42]*42tax records, the lots are roughly equal in size, measuring from 1.085 acres (Lot 16) to 1.348 acres (Lot 18).1 [ECF No. 59-4.]

At some point after Snowden purchased the Mildred Estates Property, a relative placed her manufactured (i.e., mobile) home on Lot 16 of the property (referred to by the parties and herein as the “Second Manufactured Home”). [ECF Nos. 56.] The Second Manufactured Home has a “street address and mailing address of 442 Mildred Lane, Lancaster, Kentucky 40444.” [Id.] Mr. Snowden lived in the Second Manufactured Home until he purchased the mobile home in which he currently resides in January 2003. [Id.] The Second Manufactured Home was never moved from the site after Mr. Snowden left, never permanently affixed to the real estate and remained the personal property of Mr. Snowden’s relative. [Id.]

The Debtors’ mobile home is primarily situated on Lot 18 and has a street and mailing address of 615 Mildred Lane, Lancaster, Kentucky 40444 (the “Snowden Manufactured Home”). [ECF Nos. 56 and 57.] The Debtors also contend that a portion of the Snowden Manufactured Home and its septic system is located on Lot 19. [ECF Nos. 57 and 59-3.] This assertion is accepted as true for the purpose of this decision as Caliber only indicated in the Joint Stipulations that it has not verified the placement of the mobile home on Lot 19. Caliber did not object or file any contrary information.

The Snowden Manufactured Home is the subject of an Affidavit of Conversion of Mobile Home to Real Estate dated May 29, 2003. [ECF No. 59-1 (the “Affidavit of Conversion”).] The Affidavit of Conversion is of record in Deed Book 222, Page 287, in the Garrard County Clerk’s Office, and has the effect of converting the Snowden Manufactured Home from personal property to an improvement to the real property. See Ky. Rev. Stat. § 186A.297(2). The Affidavit of Conversion provides that the Snowden Manufactured Home “shall remain permanently affixed to that certain real property described on ‘Exhibit A’.....” [ECF No. 59-1.] Exhibit A to the Affidavit of Conversion describes all six lots of the Mildred Estates Property. [Id.]

On September 26, 2006, Mr. Snowden obtained a loan from Beneficial Kentucky, Inc. in the original principal amount of $116,998.96. [ECF No. 56, POC 15-1 pp. 7-13.] The Mortgage securing repayment of the loan only covers Lots 15-18 and 20 of the Mildred Estates Property (the “Mortgaged Property”). [ECF No. 56, POC 15-1 pp. 15-24.] Therefore, Lot 19 is unencumbered by the Mortgage. The Mortgage was assigned to Caliber pursuant to an April 24, 2014 Assignment of Mortgage/Deed of Trust. [POC 15-1 p. 14.]

The parties agree Mr. Snowden has resided in the Snowden Manufactured Home from the inception of the loan. [ECF Nos. 56 and 57.] They also agree Mr. Snow-den’s daughter resided in the Second Manufactured Home when the loan was made and “at least one individual” lived in the Second Manufactured Home at times [43]*43thereafter. [Id.] At the creditors’ meeting, Mr. Snowden testified that the last time a tenant resided in the Second Manufactured Home was “around 2008 or ’09.” [ECF No. 59-3.]

Mr. Snowden testified that Beneficial was aware of the existence of the Second Manufactured Home and averred that he included rental income from 442 Mildred Lane on his loan application with Beneficial. [ECF No. 57.] But at the creditors’ meeting, Mr. Snowden testified that he never executed a written lease agreement with any tenant and that only family and friends ever resided at the mobile home. [ECF No. 59-3.] The Debtors did not receive monetary rent payments, but Mr. Snowden said residents would babysit from time to time. [Id.]

The parties stipulated: “The Second Manufactured Home was destroyed by fire in approximately 2010, and very little remains of that structure other than the foundation. Today what remains of the Second Manufactured Home is irreparable.” [ECF No.

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Cite This Page — Counsel Stack

Bluebook (online)
546 B.R. 39, 75 Collier Bankr. Cas. 2d 114, 2016 Bankr. LEXIS 446, 2016 WL 578969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-snowden-kyeb-2016.