Washington v. Green Tree Servicing, LLC (In re Washington)

529 B.R. 654
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedFebruary 24, 2015
DocketC/A No. 08-05103-JW; Adv. Pro. No. 14-80086-JW
StatusPublished

This text of 529 B.R. 654 (Washington v. Green Tree Servicing, LLC (In re Washington)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Green Tree Servicing, LLC (In re Washington), 529 B.R. 654 (S.C. 2015).

Opinion

ORDER

John E. Waites, US Bankruptcy Judge

This matter is presently before the Court on Defendant Green Tree Servicing, LLC’s Motion for Summary Judgment on each cause of action alleged in the Adversary Complaint filed by Plaintiff Henrietta Scott Washington (“Debtor”) and Debtor’s Motion for Partial Summary Judgment. The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(E) and seeks a determination of the status of a lien asserted by Defendant Green Tree Servicing, LLC (“Green Tree”) subsequent to the discharge granted in this Chapter 13 bankruptcy case on October 31, 2013. The lien at issue is also addressed in and central to Debtor’s second Chapter 13 bankruptcy case, C/A No. 14-03836, filed July 3, 2014, which is currently before the Court. Pursuant to Fed.R.Civ.P. 52, which is made applicable to this adversary proceeding by Fed. R. Bankr.P. 7052, the Court makes the following findings of fact and conclusions of law.1

FINDINGS OF FACT

Debtor’s First Chapter 13 Bankruptcy Case

1. On August 25, 2008, Debtor filed with this Court a voluntary petition for bankruptcy under Chapter 13, C/A No. 08-05103 (“First Case”).

2. On August 28, 2008, Green Tree filed a Proof of Claim setting forth a se[657]*657cured claim of $63,367.82 with interest at a rate of 9.5% and an unsecured claim of $268.19. Green Tree cited “Money-Loaned” as the basis- for its claims and listed an amount of $1,825.21 as arrearage and other charges included in its secured claim at the time of Debtor’s filing. A 1996 Fleetwood mobile home owned by Debtor (“Mobile Home”) was listed as the property securing Green Tree’s claim. This Proof of Claim was amended on October 7, 2008 to include documents supporting perfection of Green Tree’s interest in the Mobile Home.

3. Debtor’s Schedules and Statements filed September 4, 2008 listed Green Tree as a creditor holding a claim arising from a Retail Installment Contract and Security Agreement dated March 6, 1996 and secured by the Mobile Home.

4. On March 2, 2009, Debtor filed an amended Chapter 13 plan which included a related motion to value Green Tree’s secured claim regarding the Mobile Home at $19,500.00 (“Amended Plan”). Debtor’s Amended Plan also provided for the following treatment of that secured claim: “Payment of $388.43 or more per month, to Green Tree ... until the value of the lien, plus 7.25% interest has been paid in full.” Debtor’s Amended Plan also provided that

[w]ith respect to secured claims being paid through the [P]lan, the holders of secured claims shall retain liens until the earlier of payment of the underlying debt, as determined by nonbankruptcy law, or discharge under 11 U.S.C. § 1328(a).... The terms of the [Debt- or’s] pre-petition agreement with a secured creditor shall continue to apply except as provided for in this [PJlan, the Order confirming the [PJlan or other Order of the Court. Completion of all [PJlan payments shall impose an affirmative duty on secured creditors paid under the [PJlan to satisfy liens as required by applicable law.... The [Debtor] is ... responsible for protecting the non-exempt value of all property of the estate....

Green Tree did not object to confirmation of Debtor’s Amended Plan.2

5. On March 9, 2009, this Court confirmed Debtor’s Amended Plan (“Confirmation Order”). The Confirmation Order stated that under Debtor’s Amended Plan “[sjecured creditors retain their lien to the extent that it is not avoided or modified by specific court order or by [the Confirmation OJrder.” Court records show service of the Confirmation Order on Green Tree. No party appealed the Confirmation Order.

6. On July 21, 2011, Green Tree filed a Motion to Modify Stay or for Adequate Protection (“Motion to Modify Stay”). As grounds for its Motion to Modify Stay, Green Tree cited an absence of equity in the Mobile Home, Debtor’s failure to reimburse Green Tree for insurance premiums incurred, and Debtor’s failure to provide evidence of outside insurance coverage as required by the pre-petition agreement between Green Tree and Debtor. Green Tree requested relief from the automatic [658]*658stay or, in the alternative, the provision of adequate protection by Debtor.

7. Green Tree’s Motion to Modify Stay was resolved by a consent settlement order entered by this Court on September 19, 2011 and later amended on October 21, 2011 (“Settlement Order”). The Settlement Order, as amended, required Debtor to maintain continuous adequate insurance coverage on the Mobile Home and reimburse Green Tree for insurance premiums and attorneys’ fees and costs within a set period of time. The Settlement Order allowed Debtor to retain the Mobile Home— which remained under lien to Green Tree pursuant to the Confirmation Order — if Debtor complied with the Settlement Order’s terms.

8. On July 10, 2012, Green Tree filed and served on Debtor an affidavit asserting default under the terms of the Settlement Order due to Debtor’s failure to remit the May 2012 arrearage payment to Green Tree for insurance premiums it advanced during Debtor’s prior lapse in required coverage. Based on- the Settlement Order’s terms,3 an order lifting the automatic stay was granted in favor of Green Tree shortly thereafter on July 13, 2012 (“Order Lifting Stay”). By entry of the Order Lifting Stay, the stay was terminated as to the Mobile Home, thereby permitting Green Tree to enforce its security interest and state law rights in the Mobile Home, including repossession.

9. As a result of the Order Lifting Stay and pursuant to the terms of Debtor’s Amended Plan,4 the Chapter 13 Trustee in Debtor’s First Case ceased making payments to Green Tree on its claim related to the Mobile Home. The Trustee’s last payment to Green Tree on the claim secured by the Mobile Home was made on July 2, 2012. Debtor did not file a motion to reconsider the Order Lifting Stay but continued to make her plan payments to the Trustee pursuant to the Amended Plan’s terms. These payments were distributed to her other creditors.

10. Debtor received a discharge in her First Case on October 31, 2013. Green Tree did not object to the discharge.

11. The Trustee’s Final Report and Account filed November 26, 2013 reflects a total payment to Green Tree in Debtor’s First Case of $14,007.30 in principal and an additional $3,673.20 in interest. Green Tree’s total allowed secured claim in the First Case of $19,500.00 was not paid in full.5

[659]*659Green Tree’s State Court Action

12.

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Cite This Page — Counsel Stack

Bluebook (online)
529 B.R. 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-green-tree-servicing-llc-in-re-washington-scb-2015.