Oudomsouk v. Bank of America, N.A. (In re Oudomsouk)

483 B.R. 502
CourtUnited States Bankruptcy Court, M.D. Tennessee
DecidedNovember 19, 2012
DocketBankruptcy No. 11-02990; Adversary No. 12-90319
StatusPublished
Cited by4 cases

This text of 483 B.R. 502 (Oudomsouk v. Bank of America, N.A. (In re Oudomsouk)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oudomsouk v. Bank of America, N.A. (In re Oudomsouk), 483 B.R. 502 (Tenn. 2012).

Opinion

MEMORANDUM OPINION

RANDAL S. MASHBURN, Bankruptcy Judge.

The parties in this adversary proceeding have stipulated their way into an artificial fact scenario that tests the judicial process. They have posed this question: what should be done with the underlying lien when a secured claim is disallowed pursuant to a default process even though it is now undisputed that the secured lender has an otherwise completely valid, enforceable, and unavoidable lien?

The Debtors and Chapter 13 Trustee assert that disallowance of the secured claim is a sufficient basis to void the lien itself pursuant to 11 U.S.C. § 506(d) — notwithstanding the questionable process used to get there and despite the fact that disallowance was not based on the merits. At the other end of the spectrum, the secured lender contends that it can totally ignore the entire bankruptcy process, including the claim disallowance procedures, and have its lien survive bankruptcy unscathed.

Because the artificial scenario constructed by the parties is an inappropriate vehicle for any far-reaching ruling that the parties appear to desire, the Court will no doubt disappoint everyone with a narrow result geared to these limited facts.

I. Nature of Proceedings

Kabine and Tiengkhan Oudomsouk (“Debtors”) filed an adversary proceeding against Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, L.P., formerly known as Countrywide Home Loans Servicing L.P. (“BOA”) seeking to avoid BOA’s home mortgage lien. BOA filed a counter-complaint asking that the home mortgage debt be declared non-dischargeable. The proceeding was heard on cross motions for summary judgment. The following constitutes the Court’s findings of fact and conclusions of law. Fed. R. Bankr.P. 7052.

This matter reached the Court by a combination of peculiar positions by the parties — positions taken, the Court suspects, partially out of a desire to pry some hard-and-fast rules or guidelines out of this Court to address the unfortunately common situation where a secured creditor fails or declines to participate in a Chapter 13 case.

The parties’ positions can be summarized as follows:

1. The combined efforts of the Debtors and Chapter 13 Trustee resulted in dis-allowance of the claim of BOA based on the proposition that insufficient proof was produced that BOA was the holder of the secured claim and the proper party to be paid in the Chapter 13 plan. However, after successfully having the claim disallowed on that basis in a prior contested matter, the Debtors and Trustee apparently became absolutely confident — for purposes of this adversary proceeding — that BOA was, in fact, the actual holder of the secured lien. In short, their joint efforts reflected a real or feigned concern about the identity of the holder of the secured claim for claim allowance purposes but no concern whatsoever about the identity of the hen holder for avoidance purposes.
2. BOA, apparently because it covets a concrete rule that it has no obligation to be involved in any claim allowance process in the future in this district, has collaborated with the Debtors to focus this litigation on the difficult interaction between claim disallowance and lien voi-dance rather than doing the obvious— directly asking the Court to set aside the order disallowing its admittedly val[505]*505id claim. A simple motion by BOA to reconsider disallowance would logically occur now in light of the stipulation that BOA is indeed the holder of the lien, and that there are no grounds for attack on the lien other than the claim disallowance that occurred by default.

The Court must first sort through the interaction of sections 501(c), 502(b) and 506(d) of the Bankruptcy Code as impacted by the Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), particularly as interpreted by circuit court opinions arising in the claim allowance process. However, the ultimate decision here is based on the Court’s unwillingness to countenance irreconcilable legal results arising out of separate proceedings over plan confirmation, claim allowance, and lien avoidance in this artificial context.

II. Facts

All of the facts pertinent to this matter were stipulated in writing in advance of the summary judgment hearing, were acknowledged by counsel on the record during the hearing itself, or are otherwise undisputed.

The Debtors filed their Chapter 13 bankruptcy petition on March 24, 2011. In their schedules, the Debtors listed “BAC Home Loans Servicing” (now stipulated to be BOA) as a secured creditor holding a mortgage on property located at 148 Adams Lane, Bell Buckle, TN 37020. The Debtors scheduled the amount of BOA’s secured claim as $76,076.00, with a continuing monthly payment of $ 551.00. The debt was not listed as contingent, unliqui-dated, or disputed. The debt owed to BOA is reflected in a promissory note and secured by a deed of trust on the Debtors’ Bell Buckle property, which is their primary residence and is the only collateral securing the debt to BOA. BOA did not file a proof of claim.

On April 28, 2011, this Court entered an order confirming the Debtors’ Chapter 13 plan. The confirmation order identifies BOA as the holder of a “ ‘long term’ debt provided for under [11] U.S.C. § 1322(b)(5)” with respect to the mortgage on the Debtors’ residence. The Chapter 13 plan provided for mortgage payments to BOA although it also included language that the terms of the plan remained subject to the claim allowance process.

On August 1, 2011, the Debtors’ counsel filed proofs of claim nos. 12 and 13 on behalf of BOA.2 Proof of claim # 12 listed the total debt owed to BOA as “RMP: $551.00” apparently to reflect the regular monthly payment.3 Proof of claim # 13 listed a figure of $ 18,500.00 without indicating if it was the payoff balance, ar-rearage, or other type of fees and costs, although it apparently reflected the ar-rearage only. Neither proof of claim reflected a loan number or any information that would allow a creditor to link the proof of claim to a particular debt. Neither listed the principal amount of the [506]*506debt, and there was no supporting documentation whatsoever with either claim. (Although technically two separate documents, the two proofs of claim filed by the Debtors on behalf of BOA will sometimes be referred to herein in the singular.)

In filing the proof of claim on behalf of BOA, the Debtors failed to include a variety of information that was obviously readily available — information appearing elsewhere in their bankruptcy filings. For example, the proof of claim did not provide any information about the total amount of the debt to BOA even though $76,076.00 was shown on both Schedule A listing real estate and Schedule D identifying secured debt. The proof of claim did not identify the collateral subject to the lien of BOA even though the property was identified by street address on both Schedule A and Schedule D. The proof of claim did not reference any account number even though that information was also shown in the bankruptcy filings.

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Cite This Page — Counsel Stack

Bluebook (online)
483 B.R. 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oudomsouk-v-bank-of-america-na-in-re-oudomsouk-tnmb-2012.