In re Tollios

491 B.R. 886, 69 Collier Bankr. Cas. 2d 1011, 2013 WL 1944438, 2013 Bankr. LEXIS 1993
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedMay 13, 2013
DocketNo. 09 B 19329
StatusPublished
Cited by10 cases

This text of 491 B.R. 886 (In re Tollios) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tollios, 491 B.R. 886, 69 Collier Bankr. Cas. 2d 1011, 2013 WL 1944438, 2013 Bankr. LEXIS 1993 (Ill. 2013).

Opinion

MEMORANDUM OPINION

CAROL A. DOYLE, Bankruptcy Judge.

Peter Dimitrius Tollios II and Judith Mae Tollios, the debtors in this chapter 13 case, filed a motion for sanctions against JP Morgan Chase (“Chase”) for allegedly violating Rule 3002.1(b) of the Federal Rules of Bankruptcy Procedure. The debtors contend that Chase violated the rule because Chase sent them a notice of an increase in the escrow payment due under their mortgage loan but did not file a copy of the notice with the court or serve it on their attorney and the chapter 13 trustee. At issue is whether Rule 3002.1 applies to cases in which the plan requires the debtors to make regular monthly payments under their mortgage loan agreement but does not provide for payment of pre-petition arrears to the mortgage creditor.

The court concludes that Rule 3002.1 applies to all chapter 13 cases in which the debtor’s plan provides for the maintenance of monthly mortgage payments on the debtor’s principal residence, regardless of whether the plan also provides for payment of pre-petition arrears owed to the mortgage creditor. Chase therefore vio[888]*888lated Rule 3002.1 by failing to file and properly serve the notice of the increase in the monthly mortgage payment. In the circumstances of this case, however, sanctions under Rule 3002.1(i) are not appropriate.

I. Background

The court confirmed the debtors’ chapter 13 plan in September 2009. The plan provided for them to make current monthly mortgage payments directly to the mortgage servicer. The plan did not provide for payment of any mortgage arrears because the debtors were current on their mortgage payments when they filed the bankruptcy case.

In December 2011, the debtors’ monthly mortgage payment was $1,937.59 in principal and interest and $90.48 for an escrow to cover insurance payments, for a total monthly payment of $2,028.07. The loan agreement provided that the debtors would pay their property taxes directly to the taxing authority, so there was no escrow for taxes. In January 2012, Chase sent the debtors a notice that their monthly payment would increase by approximately $1,200 per month to $3,294.46. The debtors had failed to pay their property taxes so Chase paid them and then increased the monthly escrow payment in accordance with its rights under the loan agreement. Although the debtors received notice of the payment increase, Chase did not file a notice of the increase with the court or serve it on the debtors’ counsel or the chapter 13 trustee. The debtors have not paid the increased escrow amount to Chase, and they have acknowledged that they cannot afford to pay the taxes on the property.

In August 2012, the debtors filed the current motion seeking sanctions against Chase for violating Rule 3002.1 by failing to file and serve the notice on debtors’ counsel and the trustee. They seek as a sanction a declaration that Chase is es-topped to assert any post-petition default under the loan, that they are “current” on their loan payments, and that the escrow payment will be the original amount of $90.28 for the remainder of the term of the loan. The debtors also request an award of their attorneys’ fees for bringing the motion and punitive damages of at least $250,000. In effect, the debtors seek a determination that they are not liable for the taxes that Chase has paid on their behalf, or for any taxes that will be owed in the future, because of Chase’s failure to file and properly serve the notice of the increase in the monthly payment.

For the reasons discussed below, the court agrees with the debtors that Rule 3002.1 applies in this case, but the court declines to grant the relief they request.

II. Rule 3002.1

Rule 3002.1 was adopted in December 2011 to address a significant problem caused when mortgage companies applied fees and costs to a debtor’s mortgage while the debtor was in bankruptcy without giving notice to the debtor and then, based on these post-petition defaults, sought to foreclose upon the debtor’s property after the debtor completed the plan. Rule 3002.1 deals with this problem by requiring notice of payment changes and providing an opportunity for the debtor to contest them during the chapter 13 case. The rule provides in part:

(a) In general. This rule applies in a chapter 13 case to claims that are (1) secured by a security interest in the debtor’s principal residence, and (2) provided for under § 1322(b)(5) of the Code in the debtor’s plan.
(b) Notice of payment changes. The holder of the claim shall file and serve on the debtor, debtor’s counsel, and the [889]*889trustee a notice of any change in the payment amount, including any change that results from an interest rate or escrow account adjustment, no later than 21 days before a payment in the new amount is due.
(e) Determination of Fees, Expenses, or Charges. On motion of the debtor or trustee filed within one year after service of the notice under subdivision (c) of this rule, the court shall ... determine whether payment of any claimed fee, expense or charge is required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the Code.

Fed. R. Bankr.P. 3002.1.

Under subsection (a), the rule applies in chapter 13 cases to claims secured by the debtor’s principal residence and provided for under § 1322(b)(5) in the debtor’s plan. Section 1322(b)(5) provides that a plan “may ... provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” 11 U.S.C. § 1322(b)(5). Thus, when the loan agreement calls for payments that will be due after the date of the final plan payment, a debtor need not pay the secured claim in full during the course of the plan but instead may simply maintain the regular payment schedule through the end of the plan.

In this case, the debtors’ payments under the loan agreement will extend beyond the date of the last plan payment. The debtors were therefore permitted under § 1322(b)(5) to continue making regular monthly payments. Paragraph C of the debtors’ plan provides that they will make current monthly payments to Chase’s predecessor directly to the creditor instead of through a payment from the trustee. This provision of the plan brings Chase’s claim within the scope of Rule 3002.1.1

Chase argues that the rule applies only when a debtor’s plan provides both for payment of current monthly payments and payment of pre-petition arrears owed to the creditor. It cites one case that reaches this conclusion and another case that supports it. See In re Weigel, 485 B.R. 327 (Bankr.E.D.Va.2012); In re Wallett, No. 11-10801, 2012 WL 4062657 (Bankr.D.Vt. Sept. 14, 2012). Neither case, however, contains any real analysis of the issue. Each simply declares that § 1322(b)(5) applies only when the debtor’s plan both maintains current payments and pays pre-petition arrearages.

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Bluebook (online)
491 B.R. 886, 69 Collier Bankr. Cas. 2d 1011, 2013 WL 1944438, 2013 Bankr. LEXIS 1993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tollios-ilnb-2013.