Smith v. Rushmore Loan Management Services, LLC (In re Smith)

575 B.R. 869
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedOctober 26, 2017
DocketCASE NO.: 1:09-bk-75616; AP NO.: 1:16-ap-07042
StatusPublished
Cited by6 cases

This text of 575 B.R. 869 (Smith v. Rushmore Loan Management Services, LLC (In re Smith)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Rushmore Loan Management Services, LLC (In re Smith), 575 B.R. 869 (Ark. 2017).

Opinion

MEMORANDUM OPINION

HONORABLE RICHARD D. TAYLOR, UNITED STATES BANKRUPTCY JUDGE

Before the court is a Motion to Determine Extent and Validity of Lien or in the Alternative Motion to Declare Mortgage Satisfied (“Complaint”) filed by Túm-ida Leann Smith (“debtor”) on June 20, 2016. Nationstar Mortgage, LLC (“Na-tionstar”) filed an Answer/Response to Motion to Determine Extent and Validity of Lien or in the Alternative Motion .to Declare Mortgage Satisfied (“Answer”) on June 28, 2016.1 Nationstar subsequently transferred its claim to Rushmore Loan Management Services, LLC (“Creditor”), resulting in the parties filing an Agreed Motion to Substitute Defendant on August 3, 2017. The Agreed Motion to Substitute Defendant recites that BAC Home Loan Servicing (“BAC”) held the debtor’s mortgage when she filed her current Chapter 13 proceeding. Thereafter, BAC transferred its claim to Nationstar in 2014, and Creditor succeeded to both in 2017.2

Also before the court is an Objection to Claim (“Objection”) filed by the debtor on July 17, 2015, requesting that BAC’s claim be denied. Nationstar filed a response on August 14, 2015. The court heard the matters on August 9, 2017.3 With the parties’ consent, the court combined the matters for trial pursuant to Federal Rule of Bankruptcy Procedure 3007(b). At the conclusion of the trial, the court took the matter under advisement. For the reasons stated herein, the relief sought in the Complaint is granted, and the Objection is sustained. A separate judgment will be entered to this effect.

I. Jurisdiction

This court has jurisdiction over this matter under 28 U.S.C. §§ 1334 and 157. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B), (K), and (L). The following opinion constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052.

II. Findings of Fact

The debtor’s confirmed and completed Chapter 13 plan provided for payment of the principal balance of her mortgage inside the plan. At the conclusion of her plan and at the time of discharge, the debtor believed her mortgage would be paid in full and Creditor’s lien on the property released. In opposition, Creditor argues that it has no obligation to release its mortgage as its filed proof of claim controls regardless of the plan.

This is the debtor’s second bankruptcy. Her treatment of Countrywide Home Lending (“Countrywide”), yet another predecessor in interest to Creditor, in her first case set the stage for the controversy in her current case. Specifically, in her first case (l:04-bk-78313), the Chapter 13 trustee distributed monthly mortgage payments of $439.73 to Countrywide based on a plan confirmed on June 3, 2005. (Ex. 1, at 1.) Countrywide received $24,950.27 over the life of the plan on a listed debt of $34,788.89. (Ex. 1, at 1.) Presumably, and by reference to the proof of claim filed in the debtor’s current case, the $34,788.89 represented principal; unfortunately, the proof of claim filed in the first case was not introduced into evidence. The court dismissed the debtor’s first bankruptcy case on October 20, 2009, because she fell behind on her payments. (Ex. 13, at 2.) Regardless, she made a considerable number of payments to Countrywide in her first bankruptcy over the course of her confirmed, but uncompleted, plan.

The debtor promptly filed her second, and current, Chapter 13 proceeding on November 5, 2009. (Ex. 2, at 1.) When she refiled, her then lawyer, Travis Starr, explained that she could subtract what she had paid in her previous bankruptcy from what she originally borrowed to determine the amount she needed to pay through her new plan. Apparently, her lawyer based his calculations on a claims report from the debtor’s 2004 bankruptcy generated by the Chapter 13 trustee’s office. The total amount paid through the debtor’s first case, $24,950.27, deducted from the total amount of the mortgage claim, $34,788.89, resulted in a balance of $9,838.62. (Ex. 1, at 1.) This calculation and reasoning is patently incorrect if the $34,788.89 figure represented principal and the $24,950.27 figure represented payments against principal and interest. The debtor, however, relied on her lawyer’s advice and believed that by filing a second bankruptcy case and making plan payments to Creditor totaling $9,838.62 that she would pay off her mortgage. The court has no reason to discredit her belief, however misguided.

The debtor’s ill-founded calculation is reflected in her schedules. On her Schedule A, the debtor listed a fifty-percent interest with her husband in a “3BR/1BA Brick home & city lot @ 401 W. Long” valued at $15,000 with a secured claim of $9,838.62, the resulting balance of her lawyer’s calculation.4 (Ex. 2, at 9.) The debtor also included Countrywide on her Schedule D as a creditor having a claim of $9,838.62 secured by the residence. (Ex. 2.)

The debtor’s Chapter 13 Narrative Statement of Plan, however, incongruously categorized Countrywide’s debt as a long-term debt with regular payments of $439.73 and an arrearage of $9,839.00 (presumably rounding off the $9,838.62 figure) to be paid at a rate of $12.00 per month. (Stip. Facts at ¶ 2; Ex. 3, at 2.) A principal amount was not referenced. Neither party proffered or elicited any testimony explaining why this initial plan treated the purported principal debt of $9,838.62 as an “arrearage” to be paid at $12.00 a month associated with an unspecified “long-term debt” addressed by monthly payments of $439.73.

In response to this treatment, on February 12, 2010, BAC, as the mortgage lien holder, filed its Objection to Plan Prior to Confirmation (“Objection to Confirmation”) objecting to the plan treatment proposed for Countrywide. (Ex. 4.) BAC alleged that its prepared, but apparently unfiled, proof of claim reflected pre-petition arrears of $1,588.81 rather than the $9,839.00 amount provided for in the debt- or’s proposed plan. (Stip. Facts at ¶ 3; Ex. 4, at 1.) BAC objected to the plan because the monthly payment of $12.00 to cure the pre-petition arrearage was inadequate to completely cure the arrears over the course of the proposed plan. (Stip. Facts at ¶ 3; Ex. 4.) The objection stated that “[t]he Debtor should be required to amend her Plan to cure those pre-petition arrears cited in BAC Home Loans Servicing, LP’s Secured Proof of Claim ($1,588.81) within sixty (60) months of confirmation of the subject Plan by—accordingly—increasing the maintenance payment to the Chapter 13 Trustee.” (Ex. 4, at 2.)

The debtor filed a plan modification on February 18, 2010, with a notice of opportunity to object.5 (Ex. 5.) The modification maintained the same plan length, sixty months, but it reduced the monthly plan payment from $575.00 to $450.00. (Ex. 3, at 1; Ex.

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Bluebook (online)
575 B.R. 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rushmore-loan-management-services-llc-in-re-smith-arwb-2017.