Jackson v. ING Bank, FSB (In re Jackson)

545 B.R. 62, 2016 Bankr. LEXIS 305
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedFebruary 1, 2016
DocketCase No. 10-11716-MSH; Adversary Proceeding No. 13-01064
StatusPublished
Cited by2 cases

This text of 545 B.R. 62 (Jackson v. ING Bank, FSB (In re Jackson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. ING Bank, FSB (In re Jackson), 545 B.R. 62, 2016 Bankr. LEXIS 305 (Mass. 2016).

Opinion

MEMORANDUM OF DECISION

Melvin S. Hoffman, U.S. Bankruptcy Judge

After considerable winnowing during the pretrial phase, what remains of this adversary proceeding brought by Kimmy R. Jackson, the debtor in the main chapter 13 case, are her claims that one of the defendants, the law firm of Portnoy & Greene, P.C. (“P & G”), violated the discharge injunction of Bankruptcy Code § 524 and the Fair Debt Collection Practices Act (“FDCPA”) and engaged in deceit, misrepresentation, breach of contract and wrongful foreclosure, all in connection with its attempt to enforce default remedies including foreclosing a mortgage on Ms. Jackson’s condominium unit. A trial was held on these claims, as well as on Ms. Jackson’s objection to the amended proof of claim of Capital One, N.A., the holder of her mortgage, which objection was consolidated with this adversary proceeding for trial. I now render my findings of fact and conclusions of law concerning these claims and objections pursuant to Fed. R. Bankr. P. 7052.

Jurisdiction

The resolution of Ms. Jackson’s claims against P & G for violation of the discharge injunction and her objection to Capital One’s proof of claim are matters over which the bankruptcy court has core jurisdiction. See 28 U.S.C. §§ 157(b), 1334; LR, D. Mass. 201. Ms. Jackson’s remaining claims are non-core and the court has jurisdiction because they are “related to” her bankruptcy case. See 28 U.S.C. § 157(c). This includes her FDCPA claim, because in her pending chapter 13 case in which a plan has yet to be confirmed, the outcome of this claim will likely effect Ms. Jackson’s bankruptcy estate. Boston Reg’l Med. Ctr. v. Reynolds (In re Boston Reg’l Med. Ctr.), 410 F.3d 100, 105 (1st Cir.2005). Compare Holland v. EMC Mortg. Corp. (In re Holland), 374 B.R. 409, 443 (Bankr.D.Mass. 2007) (citing to 11 U.S.C. §§ 541(a)(1), 1306(a)(1) to conclude that “[a] debtor’s interest in a cause of action for violations of ... federal consumer protection statutes which occurred prepetition, and, in the case of a Chapter 13 debtor, post-petition, are property of the estate”), and Jackson v. Marlette (In re Jackson), 317 B.R. 573, 579-80 (Bankr.D.Mass.2004) (concluding that chapter 13 debtors’ claim that arose prior to the case converting from chapter 7 to chapter 13 was property of the estate and that debtors had standing to pursue such claim), with Arzuaga v. Quantum Servicing Corp. (In re Arzua-ga), No. 10-00107, 2012 WL 1120673, at *4-5, 2012 Bankr.LEXIS 1443, at *12-14 (Bankr.D.P.R. Apr. 3, 2012) (finding that the court lacked “related to” jurisdiction over a post-petition FDCPA claim in a chapter 13 case when the plan had been completed and discharge had been entered), and Vienneau v. Saxon Capital, [65]*65Inc. (In re Vienneau), 410 B.R. 329, 334 (Bankr.D.Mass.2009) (holding that court lacked “related to” jurisdiction because claim arising from post-petition conduct in a chapter 7 case was not property of the estate). Each of the parties has consented to the Court’s entry of a final judgment on all these matters. See 28 U.S.C. § 157(c)(2).

Procedural Background and Findings of Fact 1

At all times relevant to this matter, Ms. Jackson owned condominium unit 316 located at 700 Wellman Avenue in North Chelmsford, Massachusetts. In 2008, she defaulted under the terms of a February 17, 2004 note and the mortgage on the condominium unit securing her obligations under that note. The note was payable to America’s Wholesale Lender, a trade name used by Countrywide Home Loans, Inc. See Pl.’s Ex. 1. The mortgage was granted to Mortgage Electronic Registration Systems, Inc. (“MERS”) acting as nominee for America’s Wholesale Lender. PL’s Ex. 2. As a result of her default, on December 15, 2008, the mortgage was foreclosed and Countrywide Home Loans Servicing, L.P. for the benefit of ING Bank, FSB became the owner of the condominium unit by foreclosure deed (or so it appeared).2 See PL’s Ex. 11. Thereafter, Ms. Jackson and Countrywide executed a “Move Out Agreement” dated January 2009 (no day was stated), and in accordance with that agreement on February 6, 2009, Ms. Jackson vacated the unit. See PL’s Ex. 12. After moving out of her condominium, Ms. Jackson lived for a time in New Bedford and later in Quincy, Massachusetts. Trial Tr. 14:21-23.

On February 22, 2010, Ms. Jackson filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code (11 U.S.C. § 101, et seg.) commencing the main case. The schedules of assets and liabilities filed by Ms. Jackson in support of her chapter 7 petition did not list the North Chelmsford condominium unit as an asset presumably because she had lost it to foreclosure (or so she thought). Ms. Jackson received her discharge on May 25, 2010, and her case was closed on January 5,2011.

In October 2011, ten months after her bankruptcy case had been closed, Ms, Jackson received a letter from ING Bank informing her of the monthly payment due on her 2004 note. Trial Tr. 17:6-7. This letter was followed about two weeks later by a letter from P & G as ING’s counsel demanding payment on that note. Trial Tr. 18:20-23. On January 19, 2012, Ms. Jackson received a second letter from P & G stating that its client, ING Bank, FSB was “the present holder of a mortgage” on Ms. Jackson’s North Chelmsford condominium unit and that Ms. Jackson was in default “for failure to make payments due” under the note and accompanying mortgage. PL’s Ex. 20.3 The letter, which was [66]*66signed by Suzanne Brunelle, a P & G attorney, stated that Ms. Jackson was “required to pay the entire mortgage indebtedness” and that the mortgage and note were “immediately due and payable.” Id. In the letter Ms. Brunelle requested that Ms. Jackson contact her “to obtain current payoff figures prior to forwarding any payment.” Id. The letter closed by indicating that P & G was “a ‘debt collector’ as defined under the Fair Debt Collection Practices Act” and that the firm “was attempting to collect a debt.” Pl.’s Ex. 20. Nowhere in the letter did Ms. Brunelle reference Ms. Jackson’s chapter 7 bankruptcy case or her discharge.

Ms. Jackson took these communications as news that there had been no foreclosure sale of her condominium unit after all and so on June 1, 2012, she moved back in to the unit. The period between February 6, 2009, when Ms. Jackson moved out of her condominium unit, and June 1, 2012, when she moved back in, plays a critical role in this adversary proceeding. For ease of reference I will henceforth refer to it as the “Vacancy Period.”4

Shortly after resuming residency in her condominium unit, Ms.

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545 B.R. 62, 2016 Bankr. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-ing-bank-fsb-in-re-jackson-mab-2016.