William J. Layng, Jr. Chapter 7 Trustee v. CALIBER HOME LOANS, INC.

• Court: United States Bankruptcy Court, N.D. Georgia
• Decided: January 4, 2022
• Docket: 20-06025
• Status: Unknown

Opinion

= a a a ey * “Bs IT IS ORDERED as set forth below: ey hy “a: Distp ct Date: January 4, 2022 fy □ - UW Wt by | x Og Lisa Ritchey Craig U.S. Bankruptcy Court Judge

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN THE MATTER OF: : CASE NUMBERS CARLOS DEMTERIUS HANDRIKX, : SR. and MARIE HARVEY-HENDRIX, : BANKRUPTCY CASE Debtors. : 19-63108-LRC CATHY L. SCARVER : as Chapter 7 Trustee for the Estate of — : ADVERSARY PROCEEDING CARLOS DEMETRIUS HENDRIX, : SR. and MARIE HARVEY-HENDRIKX, : NO. 20-06025-LRC Plaintiff, : V. : : IN PROCEEDINGS UNDER CALIBER HOME LOANS, INC., : CHAPTER 7 OF THE Defendant. : BANKRUPTCY CODE

ORDER This matter comes before the Court on Defendant’s Motion for Leave to File Sur- Reply (the “Motion,” Doc. 22) and Plaintiff's Response in Opposition to Motion to File

Sur-Reply (Doc. 23). Defendant seeks leave to file a surreply. While the Court’s decision to permit the

filing of a surreply is “purely discretionary,” it “should generally only be allowed when ‘a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.’” First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 F. App’x 777, 788 (11th Cir. 2008) (quoting Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)). Indeed, allowing “‘surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs.’” Fedrick, 366 F. Supp.

2d 1190 at 1197. On February 3, 2020, Plaintiff filed her complaint (Doc. 1), seeking to avoid what she deems “several” pre-petition transfers of an interest in Debtors’ real property. On May 13, 2021, Defendant filed a motion for summary judgment (the “MSJ Motion”), which Plaintiff opposes. One issue to be decided is whether a security deed (the “Security Deed”),

signed by an unofficial witness, Debtors, and containing an acknowledgement signed by a closing attorney on the same page, was improperly recorded and is therefore avoidable. A waiver of borrower’s rights, including an attorney affidavit signed by the closing attorney whose acknowledgement appears on the Security Deed, was recorded contemporaneously with the Security Deed. The parties disagree as to whether this accompanying

documentation is incorporated into the Security Deed and whether it could cure a deficient security deed pursuant to O.C.G.A § 44-2-18 (“Georgia’s Remedial Statute”). In filings by each with regard to the MSJ Motion, the parties discuss how the facts in this matter compare with those in In re Lindstrom, 608 B.R. 283 (Bankr. N.D. Ga. 2020) reversed and remanded, 621 B.R. 42 (N.D. Ga. 2020), appeal pending Case No. 20-13615 (11th Cir. 2020). See e.g., Doc. 13 at 30 and Doc. 18 at 1-7. Lindstrom concerns the

avoidance of a facially defective security deed signed by an unofficial witness, debtor, and acknowledged by a closing attorney on the page after. There too, the closing attorney signed an affidavit included with a waiver of borrower’s rights, which was recorded contemporaneously with the deed. At issue in Lindstrom is whether these accompanying documents can cure a defective deed by meeting the requirements of Georgia’s Remedial Statute. The issue has been briefed and argued before the Eleventh Circuit Court of

Appeals. Considering the parties in the instant case appear to disagree as to whether the Security Deed was properly recorded under facts comparable to those in Lindstrom, the Court believes that a ruling in Lindstrom could be instructive in this matter. If so, the Court expects that both parties will seek the opportunity to update and expand their briefs and the

filing of a surreply at this time could be premature. For this reason, the Court will defer ruling on the MSJ Motion and the Motion until a ruling is issued in Lindstrom, at which time the parties may further advise the Court as to whether additional briefing is necessary or would be helpful to the Court. Therefore, IT IS ORDERED that the Motion and the MSJ Motion are DEFFERED until further

order of the Court. END OF DOCUMENT Distribution List J. Kelsey Grodzicki Winter Capriola Zenner, LLC One Ameris Center, Suite 800 3490 Piedmont Road NE Atlanta, GA 30305

Caliber Home Loans, Inc. c/o C T Corporation System 289 S. Culver Street Lawrenceville, GA 30046-4805

Cathy L. Scarver P.O. Box 672587 Marietta, GA 30006

Michael J. Bargar Arnall Golden Gregory, LLP Suite 2100 171 17th Street, N.W. Atlanta, GA 30363

William Dale Matthews Arnall Golden Gregory LLP Suite 2100 171 17th Street, NW Atlanta, GA 30363