In re Thornburg

596 B.R. 766
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedDecember 18, 2018
DocketCase No. 6:17-bk-06779-KSJ
StatusPublished
Cited by3 cases

This text of 596 B.R. 766 (In re Thornburg) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Thornburg, 596 B.R. 766 (Fla. 2018).

Opinion

Karen S. Jennemann, United States Bankruptcy Judge

A creditor, DBI-ASG Coinvestor Fund II, LLC, by FCI Lender Services Inc. ("DBI"), claims the Debtor owes it $ 324,664.89 under a home equity loan.1 Debtor, acknowledges liability of $ 50,000 to DBI, but otherwise objects2 and challenges the validity of the underlying loan documents and the amount of DBI's claim. After giving DBI months to prepare and a full trial,3 DBI failed to meet its burden of proof. The Court will partially sustain the *769Debtor's Objection and allow Claim 6-2 for $ 50,000.

Parties bear shifting burdens of proof in asserting and challenging a bankruptcy claim. Section 502 of the Bankruptcy Code4 states a proof of claim is presumed valid until an interested party objects. Once an objection is filed, the burden of proof shifts to the objecting party, usually a debtor or a trustee, to rebut the prima facie validity of the claim.5 So what constitutes a prima facie claim?

A proof of claim filed under the bankruptcy rules "shall constitute prima facie evidence of the validity and amount of the claim."6 Bankruptcy Rule 3001(c) specifies that when a claim is based on a writing, like the home equity loan at issue, a creditor must attach the original or a duplicate of the underlying writing and other supporting documentation, such as "invoices, itemized statements of running accounts, contracts."7

The rules rightfully require creditors to attach minimal supporting documentation for their claims so a debtor can evaluate their validity without discovery or extraordinary expense.8 Bankruptcy Rule 3001(c) provides a debtor with "fair notice of the conduct, transaction, and occurrences that form the basis of the claim."9 Attaching supporting documentation is a mandatory prerequisite to establishing a claim's prima facie validity.10

Here, DBI's Claim 6-2 meets the test for a valid prima facie claim. DBI used the official claim form and attached the Loan Payment History, Home Equity Line of Credit Agreement and Disclosure Statement, Mortgage, and two Modification Agreements encumbering the Debtor's home at 420 West Welch Road, Apopka, Florida. DBI does not have the original promissory note as reflected by the Affidavit as to Lost or Misplaced Original Note.11

The claim attachments also establish DBI is not the original lender. Apparently, J.P. Morgan Chase Bank, N.A., the original lender, assigned the note to Roundpoint Mortgage Servicing Corporation. Roundpoint then assigned the claim to DBI, under an undated Allonge indicating the loan amount was $ 50,000 from a note dated February 27, 2006, and a Florida Assignment of Mortgage.12 Other intermediary entities also may exist in the chain of ownership for this loan. ClearSpring Loan Services, Inc., is the current servicer acting on behalf of DBI.13

Debtor objects to DBI's prima facially valid claim. She agrees that she owes $ 50,00014 on the home equity loan, *770made substantial payments for many years, and received no monies under the two later modification agreements that, if valid, increased her liability to $ 250,000. By making this objection to DBI's claim, the Debtor must refute the legal sufficiency of the claim. As a sister court notes, the burden shifts to the objecting party to make a good argument why the claim should not be allowed as filed:

[T]he objecting party [must]...produce evidence at least equal in probative force to that offered by the proof of claim and which, if believed, would refute at least one of the allegations that is essential to the claim's legal sufficiency. This can be done by the objecting party producing specific and detailed allegations that place the claim into dispute, by the presentation of legal arguments based upon the contents of the claim and its supporting documents ... in which evidence is presented to bring the validity of the claim into question. If the objecting party meets these evidentiary requirements, then the burden of going forward with the evidence shifts back to the claimant to sustain its ultimate burden of persuasion to establish the validity and amount of the claim by a preponderance of the evidence.15

Debtor has amply refuted DBI's claim noting internal inconsistencies in DBI's filings. Debtor also filed an Affidavit16 that states she never had access to any amounts greater than the $ 50,000 because the lender at the time suspended the account before she could make additional withdrawals. Debtor also contends that she made payments on the $ 50,000, and that her balance due to DBI is "approximately $ 30,000."

Debtor has adequately challenged the legal sufficiency of DBI's claim to shift the burden of proof back to DBI to prove its own claim. On June 19, 2018, the Court set a trial three months later to give DBI this opportunity.17 After spending considerable time sifting through the parties' testimony and submitted exhibits, I conclude that DBI has failed to meet its burden of proof. Let me explain my reasoning.

Debtor executed the original note and mortgage on February 27, 2006.18 Both the mortgage and line of credit agreement referenced a $ 50,000 credit limit.19 Debtor *771acknowledges she likely received approximately $ 50,000 under this line of credit.20

Two later mortgage modification agreements were admitted into evidence.21 The first Modification Agreement was dated March 7, 2007, and it allegedly increased the credit limit to $ 186,000.22 The second Modification Agreement was dated August 15, 2007, and it allegedly further increased the credit limit to $ 250,000.23 Debtor testified she recognized the Modification Agreements and that she signed the Agreements, however, she testified also she did not receive advances beyond the initial $ 50,000.24 The Court finds the Debtor's testimony credible.

Debtor admits asking for further advances under the line of credit agreement, but Chase refused.25 Again, the Court finds the Debtor's testimony credible. Corroborating evidence is supplied by a letter from Chase establishing that further advances were suspended under the line of credit as of January 21, 2009, due to "[d]elinquent [p]ast or [p]resent [c]redit [o]bligations with [o]thers."26

DBI has no actual knowledge whether Chased advanced more than $ 50,000 because they received the assigned loan in 2014, years after these events occurred. DBI's representative, Mr. Puchferran, testified that DBI was relying entirely on the documents it received during the loan transfer and then reconstructed the loan history to show the Debtor received advances of more than $ 50,000.27 But that reconstruction (and Mr. Puchferran's testimony) lacks credibility and consistency.

DBI filed

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Cite This Page — Counsel Stack

Bluebook (online)
596 B.R. 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-thornburg-flmb-2018.