Kirby v. 21st Mortg. Corp. (In re Kirby)

589 B.R. 456
CourtUnited States Bankruptcy Court, D. Maine
DecidedJune 26, 2018
DocketCase No.: 14-20682; Adv. Proc. No.: 17-2007
StatusPublished
Cited by1 cases

This text of 589 B.R. 456 (Kirby v. 21st Mortg. Corp. (In re Kirby)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby v. 21st Mortg. Corp. (In re Kirby), 589 B.R. 456 (Me. 2018).

Opinion

Peter G. Cary, Judge

This matter comes before the court on the motion for summary judgment by defendant 21st Mortgage Corporation ("21st Mortgage"). Plaintiff Gregory Kirby alleges that certain post-petition written communications to his wife and him from 21st Mortgage and the filing of a pleading in a state court foreclosure action against them violate the bankruptcy discharge injunction, 11 U.S.C. § 524(a)1 , and the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692. 21st Mortgage maintains that there are no material disputes of fact as respects those issues and that it is entitled to judgment as a matter of law. For the reasons set forth below, 21st Mortgage's motion shall be granted.

I. Jurisdiction and Venue.

This court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 157(a), 1334, and United States District Court for the District of Maine Local Rule 83.6(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A). Venue here is appropriate pursuant to 28 U.S.C. §§ 1408 and 1409.

II. Facts.2

1. On July 11, 2007, the Kirbys executed and delivered a promissory note *459(the "Note") in the sum of $218,450.00 to Homecomings Financial, LLC.
2. The Note was secured by a mortgage (the "Mortgage") on real estate located at 61 Oak Grove Drive, Brewer, Penobscot County, Maine and the Mortgage is recorded in Book 11046, Page 191 of the Penobscot County Registry of Deeds.
3. The Mortgage was modified by an agreement effective as of February 1, 2010, which established a new principal balance of $234,657.02.
4. On or about June 20, 2014, the 21st Mortgage filed a foreclosure complaint in the Penobscot County Superior Court against the Kirbys and an initial mediation in the Kirby foreclosure was scheduled for August 28, 2014.
5. The Kirbys filed a petition for relief under chapter 7 of the Code the afternoon before the scheduled mediation.3
6. In their bankruptcy petition and schedules, the Kirbys indicated their intent to "retain" their "former residence" located at 61 Oak Drive, Brewer, Maine, and that they further "intend to explore modification."
7. The Kirbys did not reaffirm the debt to 21st Mortgage.
8. The Kirbys received their chapter 7 discharges on December 4, 2014.
9. On or about December 6, 2014, 21st Mortgage and its counsel received notice of the Kirbys' discharge.
10. By letter dated December 11, 2014, 21st Mortgage mailed a mortgage statement, addressed to Mr. Kirby in the care of the Kirbys' bankruptcy counsel, as follows:
GREGORY M KIRBY
C/O SCOTT LOGAN
75 PEARL ST # 212
PORTLAND ME 04101-4101
11. Among other things, this mortgage statement stated an "Amount Due" of $98,056.45 in bold in two places on page 1. It also stated in two places that a late fee of $63.66 would be charged if the payment were not received by a certain date. Near the top of page 1, the following language appeared in bold: "See Reverse Side for Important Information ". Among other things, page 2 contained two notices (the "Collection Disclaimer" and the "Bankruptcy Disclaimer, respectively):
This is an attempt to collect a debt and any information obtained will be used for that purpose.
* * *
NOTICE: Please be advised further that this letter constitutes neither a demand for payment of the captioned debt nor a notice of personal liability to any recipient hereof who might have received discharge of such debt in accordance with applicable bankruptcy laws or who might be subject to automatic stay of Section 362 of the United States Bankruptcy Code. This letter is being sent to any such parties merely to comply with applicable state law governing foreclosure of liens pursuant to contractual powers of sale.
12. 21st Mortgage mailed a letter dated January 8, 2015, addressed to Mr. Kirby in the care of his counsel, regarding changes in the adjustable *460rate mortgage. Among other information, this letter included a chart showing the current and estimated new interest rate and monthly payments, a new monthly payment amount due on February 1, 2015 ($1,760.95-a $44.91 increase), the loan balance, and the remaining loan term. The letter also contained the Collection Disclaimer but did not include the Bankruptcy Disclaimer.
13. 21st Mortgage mailed eight additional mortgage statements dated January 13, 2015, February 10, 2015, March 10, 2015, April 10, 2015, June 10, 2015, July 13, 2015, August 11, 2015 and September 14, 2105. All were addressed to Mr. Kirby in the care of his counsel. All of these statements were nearly identical to the December 11, 2014 statement and they all included the Collection and Bankruptcy Disclaimers quoted above in paragraph 11.
14. 21st Mortgage mailed an annual private mortgage insurance disclosure dated January 23, 2015 addressed to Mr. Kirby in the care of his counsel. This letter included the Collection and Bankruptcy Disclaimers.
15. The parties attended a mediation of the foreclosure matter on February 26, 2015.
16. In response to the Kirbys' Request for Mortgage Assistance (RMA) application to modify their mortgage payments, 21st Mortgage mailed a letter dated April 6, 2015, addressed to the Kirbys in the care of their counsel, which confirmed receipt of the Kirbys' application and requested additional documents.
17. 21st Mortgage mailed a letter dated April 28, 2015, addressed to the Kirbys in the care of their counsel, which, among other things, confirmed the receipt of an updated RMA, and requested additional documents in order to process the Kirbys' application.
18.

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Related

Kirby v. 21ST Mortg. Corp. (In re Kirby)
599 B.R. 427 (First Circuit, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
589 B.R. 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-21st-mortg-corp-in-re-kirby-meb-2018.