In re Sweeney

556 B.R. 208, 2016 Bankr. LEXIS 3036, 2016 WL 4402220
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedAugust 18, 2016
DocketCase No. 15-03664-5-JNC
StatusPublished
Cited by1 cases

This text of 556 B.R. 208 (In re Sweeney) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sweeney, 556 B.R. 208, 2016 Bankr. LEXIS 3036, 2016 WL 4402220 (N.C. 2016).

Opinion

ORDER REGARDING VALUATION OF COLLATERAL

Joseph N. Callaway, United States Bankruptcy Judge

The matter before the -court is the Motion for Valuation of Collateral filed by Amy G. Sweeney (the “Debtor” or “Ms, Sweeney”) on December 9, 2015 (Dkt. 11; the “Motion for Valuation”) and the Response in Opposition to the Motion for Valuation filed by Ditech Financial, LLC1 (“Ditech” or the “Creditor”) on December 11,2015 (Dkt. 15; the “Response”). A hearing took place on July 27, 2016, in Fayette-ville, North Carolina. Counsel for the Debtor, counsel for Ditech, and the chapter 13 trustee, Joseph A. Bledsoe, appeared at the hearing. After consideration of the pleadings, case record, testimony, documentary evidence, and arguments of counsel presented at the hearing, the court finds and determines as follows:

BACKGROUND AND FACTS

Ms. Sweeney filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code on July 2, 2015 (Dkt. 1) (the “Petition Date”). In Schedule B filed with [211]*211the petition, Ms. Sweeney listed as an asset of the bankruptcy estate a 1999 Horton Homes Mirage III 24' by 52' Manufactured Home (the “Manufactured Home”) with an asserted present value of $11,000. Schedule D of the petition lists Green Tree Servicing, LLC (now Ditech) as holding a claim secured by the Manufactured Home. Ms. Sweeney executed a Retail Installment Contact and Security Agreement (the “Note”) with Green Tree dated October 5,1999 when she purchased the Manufactured Home, pledging it as collateral for the Note. The Creditor timely reflected its lien on the paper Certificate of Title (the “Title”) for the Manufactured Home issued by the North Carolina Department of Transportation, Division of Motor Vehicles. The Manufactured Home was delivered to a lot fronting Chicken Foot Road in rural Bladen County, North Carolina, shortly after its purchase in 1999. The Manufactured Home was set up and has been used as the residence of Ms. Sweeney and her family at that location since the delivery.2

Although its wheels and axles were removed at set up, the Manufactured Home has not been permanently affixed to the underlying real property. No Declaration of Intent to Affix the Manufactured Home to Real Property has been filed in the Bladen County Registry, and the Manufactured Home can be removed from the land and towed away without the need for extensive further work. As a result, and the parties acknowledge, the Manufactured Home remains personal property for perfection, lien recordation, and valuation purposes. Ditech’s lien on the Manufactured Home is evidenced by a lender notation on the Title and is therefore perfected under North Carolina law. See N.C. Gen. Stat. §§ 20-58 and 25-9-311(a)(2). Finally, the Debtor does not contest the existence, perfection, or validity of Ditech’s lien on the Manufactured Home. Ditech filed Proof of Claim No. 1-1 in this case on August 5, 2015, listing the outstanding balance of the Note at $42,742.76 as of the Petition Date. Attached to Ditech’s Proof of Claim is a copy of the Note and the Title.

At the hearing, Ms. Sweeney testified at length concerning the condition of the Manufactured Home. She explained that due to prolonged leaks originating from its water heater and air conditioning unit, the floors and walls of the Manufactured Home sustained “extensive water damage.” Portions of its floors and walls are consequently infested with mold, affected subflooring sections are “rotted through,” portions of the home’s drywall are crumbling, and some of the carpets are ruined. Only minimal repairs have been made, and Ms. Sweeney believes that the water damaged floors are “not safe by any means.” Extensive photos of the interior of the Manufactured Home taken by Ms. Sweeney were introduced and allowed into evidence, effectively corroborating her testimony and illustrating the extent and pervasiveness of the water damage. Debt- or’s Ex. 2A-2G.

In addition to the water damage, Ms. Sweeney explained that other interior features of the home remain in disrepair. Specifically, the home’s central air conditioning unit does not currently function and she relies on a single window air conditioning unit to cool the structure. The home’s heating unit works only intermittently. Walls throughout the home are yellowed and otherwise discolored, and its exterior vinyl skirting is reportedly covered in algae. Further, a large gap exists between the door frame and sliding glass [212]*212door along the back of the home. Ms. Sweeney testified that she believes that the Manufactured Home is in poor condition 3 and in need of serious repairs.

Ms. Sweeney next stated that in her opinion the fair market value of the Manufactured Home is between $10,000 and $11,000 given its poor condition and the existing “structural damage.” She arrived at this figure based on a combination of her personal knowledge of the Manufactured Home’s condition, the required repairs, comparable home values in the area, and the Manufactured Home’s assessed ad valorem tax value. Ms. Sweeney explained that she specifically requested a letter from the Bladen County Office of the Tax Administrator documenting the tax value as $9,850 and consulted the home’s annual tax card, and she admitted that ultimately she relied upon the county tax valuation in concluding the home was worth $11,000 for purposes of the hearing.

Ditech presented Mr. Joseph P. Cordoni as an expert witness regarding used manufactured home valuation and appraisals. He has testified before this court as an expert on the same subject in prior cases, and his credentials were placed into the record. No objection to the tender was made and Mr. Cordoni was accepted as an expert in the case and allowed to testify on the condition, state, and value of manufactured homes in North Carolina. Mr. Cor-doni testified that he visited and physically inspected the Manufactured Home in January 2016 for several hours, and that he prepared a written appraisal report (the “Appraisal”), which was admitted into evidence without objection as Creditor’s Exhibit 1. The Appraisal is dated January 27, 2016. Mr. Cordoni testified that he begins each appraisal with a reference to the valuation entry for the make and model of the manufactured home at issue in the current National Automobile Dealers Association (“NADA”) Guide-Book Retail Value. A geographic location adjustment is then applied to account for differing market conditions in geographical areas, resulting in the “Total Guide Book Retail Value.” From there, the starting value is adjusted for an individual manufactured home’s particular condition. The condition determination is subjective but based on National Appraisal System (“NAS”) guidelines, which are divided into four general categories: excellent, good, fair, and poor.

The NAS guidelines, as specified in Mr. Cordoni’s written appraisal, provide the following explanations of category terms:

Excellent — home is new, or like new, very attractive and highly desirable; good — normal wear and tear is visible, but home is well maintained, still attractive, desirable, and useful; fair — minor deterioration apparent due to both the climate and the deferred maintenance, less attractive but obviously useful; poor — signs of structural deterioration, obvious missing or broken component items, definitely undesirable, and marginally useful.

Creditor’s Ex. 1, Pg. 3.

Mr. Cordoni reports that once the NAS condition is assessed, the base value is adjusted by a percentage factor.

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Cite This Page — Counsel Stack

Bluebook (online)
556 B.R. 208, 2016 Bankr. LEXIS 3036, 2016 WL 4402220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sweeney-nceb-2016.