Manning v. CitiMortgage, Inc. (In re Manning)

505 B.R. 383
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedFebruary 27, 2014
DocketBankruptcy No. 09-11120-BAH; Adversary No. 12-1110-BAH
StatusPublished
Cited by10 cases

This text of 505 B.R. 383 (Manning v. CitiMortgage, Inc. (In re Manning)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manning v. CitiMortgage, Inc. (In re Manning), 505 B.R. 383 (N.H. 2014).

Opinion

ORDER

BRUCE A. HARWOOD, Bankruptcy Judge.

In this adversary proceeding, Kevin M. Manning (the “Debtor” or “Plaintiff’) seeks a determination that CitiMortgage, Inc. (the “Defendant”) is liable for violating the discharge injunction contained in 11 U.S.C. § 524(a)(2). Before the Court are the Plaintiffs Motion for Partial Summary Judgment (Doc No. 36) (the “Plaintiffs Motion”) and the Defendant Citi-Mortgage, Inc.’s Opposition to Plaintiffs Motion for Partial Summary Judgment and Cross Motion for Summary Judgment (Doc. No. 43) (the “Defendant’s Motion”). The Court heard oral argument on these cross motions for summary judgment on February 18, 2014, and took the matters under advisement.

Federal Rule of Civil Procedure 56(a), made applicable by Federal Rule of Bankruptcy Procedure 7056, provides that a court shall “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” Fed.R.Civ.P. 56(a); Fed. R. Bankr.P. 7056.1 The Supreme Court has defined an “issue of material fact” as a question which must be answered in order to determine the rights of the parties un[385]*385der substantive law and which can only properly be resolved “by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating there are no genuine disputes as to any material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party, who must present evidence establishing that a genuine dispute exists that would make it necessary to resolve the difference at trial, which can be done by the production of evidence on elements on which the non-moving party would bear the burden of proof at trial. See id. Summary judgment may be proper even though some material facts remain disputed if, after all inferences are drawn in favor of the non-moving party, the moving party is entitled to judgment as a matter of law. “[T]he inquiry involved in a ruling on a motion for summary judgment ... necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

The parties agree that no genuine dispute exists as to any material fact in the case. Accordingly, the facts are as follows. The Debtor filed a chapter 7 bankruptcy petition on March 31, 2009. He listed an interest in homestead property located at 166 Varney Street in Manchester, New Hampshire (the “Property”) on Schedule A with a value of $190,000. At the time of the bankruptcy filing, the Defendant was listed on Schedule D as a creditor holding a mortgage secured by the Property in the amount of $146,198. The Plaintiff sought to reaffirm the mortgage while in bankruptcy. In May 2009, the Plaintiff signed a reaffirmation agreement (the “First Reaffirmation Agreement”). The First Reaffirmation Agreement was not filed with the Court. On September 10, 2009, an order issued discharging the Debtor (Doc. No. 28) (the “Discharge Order”). The Defendant was sent a copy of the Discharge Order on September 12, 2009 (Doc. No. 30).

Although the First Reaffirmation Agreement was not filed with the Court, the Debtor continued to make payments on the mortgage because he thought the debt had been reaffirmed. In December 2011, the Debtor decided to refinance his mortgage. At that time he learned that his credit report did not reflect the payments he had been making on the mortgage to the Defendant post-discharge. The Debt- or retained counsel in order to get his post-discharge payments reported on his credit report. During discussions between the Defendant and both the Debtor’s wife and the Debtor’s attorney, agents of the Defendant told both of them that the Defendant would only report the post-discharge payments to the credit reporting agencies if the mortgage debt were reaffirmed, and that mortgage debt could not be reaffirmed until the Debtor paid off all amounts “due” under the mortgage.

The Debtor filed a motion on January 10, 2012 (Doc. No. 34) seeking to reopen his case “so that a reaffirmation agreement with the mortgage lender may be filed.” The Court granted the motion (Doc. No. 36), with its standard caveat that “[a]ny reaffirmation filed shall be subject to the requirements of section 524(c) of the Bankruptcy Code.” After the Debtor reopened his bankruptcy case, on or about February 21, 2012, he made an additional payment of $2,462, in reliance on the Defendant’s earlier representations, in order to bring the mortgage current. The Debt- or then executed a second reaffirmation agreement (the “Second Reaffirmation Agreement”), which he mailed to the Defendant. The Defendant executed the [386]*386Second Reaffirmation Agreement. The Second Reaffirmation Agreement was apparently sent to the Court but never placed on the docket. Neither the Debtor nor his attorney filed any motion seeking approval of the Second Reaffirmation Agreement. The Defendant did not report the Debtor’s post-bankruptcy mortgage payments to the credit reporting agencies.

On November 1, 2012, the Debtor filed this adversary proceeding against the Defendant. In Count I of the Complaint, the Debtor contends that the Defendant violated the discharge injunction “by refusing to report the Plaintiffs payments to the credit reporting agencies unless he reaffirmed his debt with CitiMortgage.” In Count II of the Complaint, the Debtor contends that the Defendant violated the discharge injunction “by refusing to report the Plaintiffs payments to the credit reporting agencies unless the Plaintiff made the payments necessary to bring his account current.” Both parties seek summary judgment in their favor as to the Defendant’s liability under 11 U.S.C. § 524(a)(2). Because there are no factual disputes, the Court must determine which party is entitled to judgment as a matter of law.

Section 524(a)(2) of the Bankruptcy Code provides:

A discharge in a case under this title—
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived ...

11 U.S.C. § 524(a)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
505 B.R. 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-v-citimortgage-inc-in-re-manning-nhb-2014.