Stevens v. SunTrust Mortgage, Inc. (In re Stevens)

581 B.R. 534
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedFebruary 5, 2015
DocketCASE NUMBER 14-41709; ADVERSARY NUMBER 14-4059
StatusPublished
Cited by1 cases

This text of 581 B.R. 534 (Stevens v. SunTrust Mortgage, Inc. (In re Stevens)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stevens v. SunTrust Mortgage, Inc. (In re Stevens), 581 B.R. 534 (Ohio 2015).

Opinion

MEMORANDUM OPINION REGARDING MOTION TO DISMISS

Kay Woods, United States Bankruptcy Judge

This cause is before the Court on Motion to Dismiss (Doc. 5) filed by Defendant [536]*536SunTrust Mortgage, Inc. (“SunTrust”) on December 3, 2014. SunTrust requests dismissal of this adversary proceeding on the basis that Debtors/Plaintiffs Daniel E. Stevens, Jr. and Mara J. Stevens have failed to state a claim upon which relief can be granted because SunTrust’s claim may not be modified pursuant to 11 U.S.C. § 1322(b)(2). On December 17, 2014, the Debtors filed Response in Opposition to Defendant’s Motion to Dismiss (Doc. 8). On January 6, 2015, SunTrust timely filed Reply in Support of Motion to Dismiss (Doc. 13). Having reviewed all the pleadings and for the reasons set forth herein, the Court will deny the Motion to Dismiss.

This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and General Order No. 2012-7 entered in this district pursuant to 28 U.S.C. § 157(a). Venue in this Court is proper pursuant to 28 U.S.C. §§ 1391(b), 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The following constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

I. BACKGROUND

A. Main Case

On August 18, 2014, the Debtors filed a voluntary petition pursuant to chapter 13 of the Bankruptcy Code, which was denominated Case No. 14-41709 (“Main Case”). On that same date, the Debtors filed Chapter 13 Plan (Main Case, Doc. 2), which proposed to bifurcate SunTrust’s claim into a secured claim of $63,000.00 payable with 5.25% interest and an unsecured claim of $85,493.00. (Plan, Art. 2(F).) On September 17, 2014, SunTrust filed Objection to Chapter 13 Plan (Main Case, Doc. 19), in which it argued that the Debtors were impermissibly seeking to cram down debt secured only by the Debtors’ principal residence located at 1422 Keefer Road, Girard, Ohio 44420 (“Property”). On October 27, 2014, the Court entered Agreed Order Resolving Objection to Confirmation (Main Case, Doc. 23), which directed the Debtors to file an adversary proceeding to determine if SunTrust’s claim may be modified. The Debtors’ Chapter 13 Plan was confirmed on October 29, 2014 (Main Case, Doc. 24); provided, however, that this proceeding would resolve whether SunTrust’s claim may be modified.

On October 7, 2014, SunTrust filed a proof of claim denominated Claim No. 3-l,1 in which it asserts that its claim in the amount of $199,718.46 is fully secured by the Property. Attached to Claim No. 3-1 are the Note, Allonge, Mortgage2 and Assignment of Mortgage (collectively, “Mortgage”) documenting SunTrust’s security interest in the Property.3

The granting clause of the Mortgage conveys to SunTrust a security interest in the Property, together with “all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property.” (Mortg. at 1-2.) Paragraph 2 of the “Uniform Covenants” section of the Mortgage conveys to SunTrust á security interest in “Escrow Funds,” which are generally defined as sums to be paid by the Debtors to SunTrust for real estate taxes, leasehold [537]*537payments and hazard insurance. This paragraph also sets forth the parties’ obligations with respect to the escrow funds and states:

The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender the full payment of all such sums, Borrower’s account shall be credited with the balance remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale of the Property or its acquisition by Lender, Borrower’s account shall be credited with any balance remaining for all installments for items (a), (b), and (c).[4]

{Id. ¶ 2 (emphasis added).)

B. Disputed Bankruptcy Code Provisions

Prior to addressing the parties’ arguments, it is prudent to set forth the Bankruptcy Code provisions at issue in this proceeding. The ultimate question before the Court is whether SunTrust’s secured claim may be modified pursuant to § 1322(b)(2), which states:

(b) Subject to subsections (a) and (c) of this section, the plan may—
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(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims[.]

11 U.S.C. § 1322(b)(2) (2015) (emphasis added). The portion of § 1322(b)(2) underlined above is commonly referred to as the anti-modification provision and is the basis of the parties’ dispute.

The Bankruptcy Code does not define “real property,” but it does define “debt- or’s principal residence” as “a residential structure if used as the principal residence by the debtor, including incidental proper-⅛, without regard to whether that structure is attached to real property!.]” 11 U.S.C. § 101(13A) (emphasis added). The term “incidental property” is defined, “with respect to a debtor’s principal residence,” as follows:

(A) property commonly conveyed with a principal residence in the area where the real property is located;
(B) all easements, rights, appurtenances, fixtures, rents, royalties, mineral rights, oil or gas rights or profits, water rights, escrow funds, or insurance proceeds; and
(C) all replacements or additions.

11 U.S.C. § 101(27B) (emphasis added).

C. Adversary Proceeding

In accordance with the Agreed Order Resolving Objection to Confirmation, on November 3, 2014, the Debtors filed Complaint (Doc. 1). The Debtors assert that the Property “includes two (2) parcels, one [538]

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Bluebook (online)
581 B.R. 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-suntrust-mortgage-inc-in-re-stevens-ohnb-2015.