Todt v. Ocwen Loan Servicing, LLC (In re Todt)

2017 BNH 007, 567 B.R. 667, 77 Collier Bankr. Cas. 2d 1353, 2017 Bankr. LEXIS 1337
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedMay 17, 2017
DocketBk. No. 11-12617-JMD; Adv. No. 15-1040-JMD
StatusPublished
Cited by14 cases

This text of 2017 BNH 007 (Todt v. Ocwen Loan Servicing, LLC (In re Todt)) 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
Todt v. Ocwen Loan Servicing, LLC (In re Todt), 2017 BNH 007, 567 B.R. 667, 77 Collier Bankr. Cas. 2d 1353, 2017 Bankr. LEXIS 1337 (N.H. 2017).

Opinion

[671]*671MEMORANDUM OPINION

J. Michael Deasy, Bankruptcy Judge

I. INTRODUCTION

Randall and Sharon Todt (the “Debtors”) filed for chapter 7 bankruptcy relief in 2011 and received their bankruptcy discharges in 2012. After their bankruptcy case was closed, the Debtors continued to receive monthly statements from their mortgage servicer indicating their mortgage was past due. The mortgage on their home was eventually foreclosed in 2013. The Debtors received several additional communications from the mortgage servi-cer in 2014. The Debtors reopened then-bankruptcy case in 2015 and filed this adversary proceeding against Saxon Mortgage Services, Inc. (“Saxon”), Ocwen Loan Servicing, LLC (“Ocwen”), and The Bank of New York Mellon FKA The Bank of New York, as Successor Trustee for JPMorgan Chase Bank, N.A., as Trustee for Novastar Mortgage Funding Trust, Series 2005-3, Series 2005-3 Novastar Home Equity Loan Asset-Backed Certificates, Series 2005-3 (“BONY” and collectively with Ocwen, the “Defendants”), alleging they willfully violated the discharge injunction set forth in 11 U.S.C. § 524(a)(2). The Court entered a default against Saxon on August 4, 2015. On summary judgment, the Court ruled that certain actions taken by Ocwen violated the discharge injunction and did not fall within the safe harbor provision of 11 U.S.C. § 524(j). The Court held a trial on the outstanding issues on March 9, 2017, and took the matter under advisement. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and Local Rule 77.4(a) of the United States District Court for the District of New Hampshire. This is a core proceeding in accordance with 28 U.S.C. § 157(b).

II. FACTS

The Debtors filed a chapter 7 bankruptcy petition on July 1, 2011. On Schedule A they listed their residence located at 136 Chauncey Street, Manchester, New Hampshire (the “Property”) and indicated it was worth $250,000.00. On Schedule D they listed both BONY and Saxon as creditors holding a security interest in the Property with Saxon being owed $338,000.00 and BONY being owed $0. Saxon apparently serviced the loan held by BONY. The Debtors did not reaffirm the debt secured by the Property.1

Mrs. Todt testified at trial that the Debtors had no intention of keeping their house. At the time of the Debtors’ bankruptcy filing, Mr. Todt had been unemployed for ten years due to medical issues and Mrs, Todt had been re-employed only for a few months, having been laid off in 2010 from an administrative position with a financial services company. By 2011, the Debtors had been unable to keep up with their mortgage payments for several years. Back in 2007, the Debtors tried to sell the Property but Saxon would not agree to a sale. In 2008, they attempted to refinance their mortgage with a local bank but Saxon was unwilling to write-off $10,000.00 to permit the refinance to take place. In 2009, the Debtors attempted a short sale but Saxon ignored their requests for approval. Mrs. Todt testified that the Debtors repeatedly asked Saxon for help but they did not receive it. Instead, Saxon scheduled several foreclosure sales, which never took place.

[672]*672Over time, the Debtors realized they would not be able to keep the Property and so they sought bankruptcy relief. Mrs. Todt testified that, by filing bankruptcy, she and her husband would ho longer owe any money on the mortgage debt. While the mortgage would still exist, they would not owe any money to the mortgagee, i.e., there would be a “zero balance” as they would be giving up their financial responsibility for it. She understood that eventually the Property would be foreclosed. Mrs. Todt testified that, in the Debtors’ view, the Property was “really gone” once their bankruptcy discharges entered: they understood that they no longer had any ownership interest in the house once they filed bankruptcy as “bankruptcy took the house away from them.”

The Debtors received bankruptcy discharges on January 26, 2012. The Court served Saxon and BONY2 with notice of the Debtors’ discharges on or about January 28, 2012. Ex. 9. Shortly, thereafter, on or about March 12, 2012, Saxon sent the Debtors a notice advising them that the servicing of their mortgage would be transferred from Saxon to Ocwen effective April 2, 2012, Ex. 13.

From April 12, 2012, through December 17, 2013, Ocwen sent the Debtors twenty-one monthly statements indicating their mortgage with BONY was past due. Exs. 15-24, 26, 29, 31, 34, 36, 39-41, 43, 45-46. The statements were nearly identical, except the total amount due increased from $140,574.80 on the first statement to $199,872.83 on the last statement. Each statement listed a “Current Amount Due,” which consisted of principal, interest, and escrow for the current month and ranged from $2,745.91 on the first statement to $2,745.92 on the last statement. Each statement also listed “Past Due Amounts DUE IMMEDIATELY,” which also consisted of principal, interest, and escrow and ranged from $118,074.13 on the first statement to $172,992.37 on the last statement. Each statement further contained an amount for “Total Fees/Expenses Outstanding,” which consisted of late charges, prior servicer fees, property inspection fees, and foreclosure and other miscellaneous fees and ranged from $19,754.76 on the first statement to $24,134.54 on the last statement. Each statement also contained a detachable payment coupon that listed the “AMOUNT DUE” as the total amount due consisting of both the current amount due and the past amount due, which ranged from $140,574.80 to $199,872.83, as noted above.

Each of the statements contained bankruptcy disclaimer language on the front in a section labeled, “Important Messages,” which provided:

If you are currently in bankruptcy or if you have filed for bankruptcy since obtaining this loan, please read the bankruptcy information provided on the back of this statement.

On the back of the statement, in a section labeled, “IMPORTANT BANRKUPTCY INFORMATION,” it provided:

If you or your account are subject to a pending, bankruptcy or the obligation referenced in this statement has been discharged in bankruptcy, this statement is for informational purposes only and is not an attempt to collect a debt.
If you have questions regarding this statement, or do not want Ocwen to send you monthly statements in the future, please contact us at 1-888-554-6599. Bankruptcy payments from the Trustee should be mailed to Ocwen Loan Servicing, LLC, P.O. Box 24781, West Palm Beach, FL 33416-4781.

[673]*673See, e.g., Ex. 15. The monthly statements further noted in the “Important Messages” section that “Our records indicate that your loan is in foreclosure. Accordingly, this statement may be for informational purposes only.” See id.

Mrs.

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2017 BNH 007, 567 B.R. 667, 77 Collier Bankr. Cas. 2d 1353, 2017 Bankr. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todt-v-ocwen-loan-servicing-llc-in-re-todt-nhb-2017.