United States v. Wilson (In re Wilson)

269 B.R. 829, 2001 Bankr. LEXIS 1536, 38 Bankr. Ct. Dec. (CRR) 191
United States Bankruptcy Court, D. North Dakota·Decided November 5, 2001·No. Bankruptcy No. 00-31580; Adversary No. 01-7023·Published

Opinion

MEMORANDUM AND ORDER

WILLIAM A. HILL, Bankruptcy Judge.

This adversary proceeding was commenced by Plaintiff United States of America, acting on behalf of the United States Department of Agriculture, Farm Service Agency, formerly known as the Farmers Home Administration, (“FSA”) by Complaint filed April 30, 2001. As amended, FSA seeks a determination that it holds an equitable lien in property purchased by Debtors Larry and Tammy Wilson (“the Wilsons”). Further, FSA seeks a determination that its claim is secured to the extent of the equitable lien under section 506 of the Bankruptcy Code. By Answer filed May 25, 2001, and Amended Answer filed September 13, 2001, the Wil-sons deny that FSA is entitled to the equitable hen it requests.

The parties agreed to submit the matter to the Court on briefs and stipulated facts. The parties also stipulated as to the legal questions involved. From the stipulated facts and the exhibits attached thereto, the Court makes the following findings of fact and conclusions of law:

I. FINDINGS OF FACT

A. Background,

The Wilsons owned a ranch in McKenzie County, North Dakota, on which they had their personal residence, a single-family house. FSA held two mortgages against the real property including the house (collectively, “the ranch”), which secured a $74,489.70 debt.1 On January 28, 1997, the Wilsons’ house was destroyed by fire. The house was insured under a casualty insurance policy, under which the Wilsons filed a claim. The insurance company issued a $55,000.00 payment to cover the damages to the Wilsons’ house, and the Wilsons ultimately used the $55,000.00 to purchase a new mobile home. The new mobile home is the property at issue in this proceeding.

B. The Wilsons’ Lending History with FSA

From December 5, 1985, through December 2, 1996, the Wilsons executed eleven promissory notes in favor of FSA, which FSA still owns and holds. On July 31, 1996, the Wilsons submitted to FSA an application for Farmers Home Administration services. FSA offered to consolidate the Wilsons’ debt and to defer certain loan repayments. On December 2, 1996, the Wilsons’ debt to FSA was consolidated into [832] two promissory notes. FSA’s claim in this proceeding represents the unpaid balance of the promissory notes. To secure the balance due and owing to FSA, the Wil-sons executed two separate real estate mortgages against the ranch. The mortgages were recorded on July 15, 1993, and December 9, 1996. The property mortgaged included the Wilsons’ former house which was lost to fire. The mortgages include the following term:

Borrower agrees that the Government will not be bound by any present or future State laws, (a) providing for valuation, appraisal, homestead or exemption of the property, (b) prohibiting maintenance of an action for a deficiency judgment or limiting the amount thereof or the time within which such action may be brought, (c) prescribing any other statute of limitations, (d) allowing any right of redemption or possession following any foreclosure sale, or (e) limiting the conditions which the Government may by regulation impose, including the interest rate it may charge, as a condition of approving a transfer of the property to a new Borrower. Borrower expressly waives the benefit of any such State law. Borrower hereby relinquishes, waives, and conveys all rights, inchoate or consummate, of descent, dower, and courtesy.

The mortgages also include a covenant requiring the Wilsons:

To keep the property insured as required by and under insurance policies approved by the Government and, at its request, to deliver such policies to the Government.

Under the mortgages, the Wilsons are required to comply with all regulations affecting the property.

C. The Wilsons’ Other Lending History

The Wilsons executed a promissory note in the amount of $60,000.00 in favor of Cecil and Lettie Wilson on January 27, 1984. On the same day, they executed a real estate mortgage in favor of Cecil and Lettie Wilson to secure the balance due and owing under the note, and the mortgage was recorded on March 6, 1985. The mortgaged property included the Wilsons’ former house. On October 27, 2000, the unpaid balance on the promissory note was $60,000.00, as represented by the Wilsons’ bankruptcy petition, and no payments were made toward the reduction of this debt on or after October 27, 2000.

The Wilsons also executed one or more promissory notes to AgriBank or Federal Land Bank (“AgriBank”) between October 28, 1982, and June 13, 1988. The Wilsons executed a real estate mortgage in favor of AgriBank on October 28, 1982. The mortgaged property included the Wilsons’ former house. With respect to the Wilsons’ real property, the parties agree that the mortgage held by AgriBank was superior to the interests of FSA. As of the date of the Wilsons’ bankruptcy petition, the unpaid balance of the notes in favor of Agri-Bank, according to the Wilsons’ bankruptcy petition, was $132,134.20.

D. The Insurance Policy and Payments for Fire Losses

Milwaukee Mutual Insurance Company (“Milwaukee Mutual”) issued the casualty policy insuring the Wilsons’ former house. Neither FSA nor Cecil and Lettie Wilson were named insureds in the policy, nor were they named in the mortgage clause of the policy as loss payees. AgriBank and McKenzie County Bank were named in the mortgage clause of the policy.

On May 1, 1997, after the fire destroyed their house, the Wilsons signed a sworn statement as to their losses and submitted it to Milwaukee Mutual. The statement lists the following as having an interest in [833] the insured property or an encumbrance thereon: Farm Credit Services, AgriBank of Grand Forks, and Farmers Home Bank of Williston. FSA was omitted. The Wil-sons listed the actual cash value of their house and other personal property at the time of the loss as $97,679.00.

On April 27, 1997, Milwaukee Mutual issued a draft for $55,000.00 to cover physical damage to the Wilsons’ house from the fire. On the same day, Milwaukee Mutual issued a second draft, this one for $27,500.00, to cover personal property damage from the fire. Only the $55,000.00 draft is at issue in this proceeding. Both drafts were payable to the Wilsons, Agri-Bank, and the McKenzie County Bank. The Wilsons did not notify FSA of the house fire or of the insurance proceeds they received for damage to the house from the fire.

E. The Wilsons’ Use of the Insurance Proceeds

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United States v. Wilson (In re Wilson), 269 B.R. 829, 2001 Bankr. LEXIS 1536, 38 Bankr. Ct. Dec. (CRR) 191 (N.D. 2001).

269 B.R. 829 (United States v. Wilson (In re Wilson)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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