Williams v. Option One Mortgage Corp. (In re Williams)

360 B.R. 99, 2007 Bankr. LEXIS 242
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedFebruary 1, 2007
DocketBankruptcy No. 05-12259; Adversary No. 05-1373
StatusPublished
Cited by1 cases

This text of 360 B.R. 99 (Williams v. Option One Mortgage Corp. (In re Williams)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Option One Mortgage Corp. (In re Williams), 360 B.R. 99, 2007 Bankr. LEXIS 242 (Pa. 2007).

Opinion

OPINION

WARREN W. BENTZ, Bankruptcy Judge.

Introduction1

Carrie L. Williams (“Borrower” or “Debtor”) filed a voluntary Petition under [100]*100Chapter 13 of the Bankruptcy Code on July 9, 2005.

The Debtor is the owner of real property located at 15 Grant Street, North East, Pennsylvania (the “Property”) which is encumbered by a Note and Mortgage dated February 19, 2000 executed by Williams in favor of Option One Mortgage Corp. (“OOMC” or “Lender”). The Property suffered damage as a result of a fire on or about September 24, 2004 (the “Fire”).

Presently before the Court is a two-count Complaint filed by the Debtor. In Count I, Debtor seeks a judgment against OOMC in the amount of the actual damage the Property suffered as a result of the Fire. Count II is an objection to the claim that OOMC has filed in the Debtor’s bankruptcy case. An evidentiary hearing/trial was held on November 1, 2006. At the time of trial, the parties had agreed to resolve Count II with OOMC reducing the amount of its claim by $941.15. Evidence was heard on Count I and the matter is now ripe for decision.

Facts

A. The Mortgage

The Mortgage provides at ¶ 5 that “Borrower shall keep the ... Property insured against loss by fire” and “[i]f Borrower fails to maintain coverage ... Lender may, at Lender’s option, obtain coverage to protect Lender’s rights in the Property in accordance with Paragraph 7. Paragraph 7 provides that if the Borrower fails to perform, the Lender may, but does not have to, do and pay for whatever is necessary to protect the Property. Any amounts disbursed by the Lender under ¶ 7 become additional debt of the Borrower.”

In the language of ¶ 5 which discusses the insurance to be obtained by the Borrower, the Mortgage further provides that “[i]f Borrower ... does not answer within 30 days a notice from the Lender that the insurance carrier has offered to settle a claim, Lender may collect the insurance proceeds.”

B. The SAFECO Insurance Policy

Borrower failed to maintain insurance on the Property and at some time prior to the Fire, Lender force-placed fire insurance with SAFECO. The insurance Policy issued by SAFECO (the “Policy”) named OOMC as the insured. The premium for coverage on the Property under the Policy became part of the mortgage payment of the Borrower.

The Policy provides that SAFECO will pay OOMC or the Borrower for the removal of debris and for necessary repairs to protect the Property from further damage following a peril that causes a loss. The Policy further provides coverage in the event of a fire for personal property owned by the Borrower.

Paragraph 6 of the Policy is entitled Duties After a Loss. It provides that “[i]n case of a loss to which this insurance applies, you or the ‘borrower’ must give us or our agent notice of the loss as soon as practicable.... ” “You” is defined as the named insured mortgagee, in this Policy, OOMC.

The policy provides for settlement of property losses at ¶ 7 which provides:

Loss Settlement.

Covered property losses are settled as follows:

A. Coverages 1A — Dwelling, IB — Other Structures, and IE Condominium Unit Items at replacement cost without deduction for depreciation subject to the following:
(1) We will pay the full cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts:
[101]*101(a) the “limit of liability” under this policy applying to the building;
(b) the replacement cost of that part of the damaged building for like kind and quality construction and use on the same premises as determined shortly following the loss; or
(c) the amount actually and necessarily spent to repair or replace the damaged building.
(2) When the cost to repair or replace the damage is more than $2,500, we will pay the difference between the “actual cash value” and replacement cost only after the damaged or destroyed property has actually been repaired or replaced.
(3) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an “actual cash value” basis. A claim can be made for any additional liability on a replacement cost basis after actual repair or replacement is completed if done so within 180 days of the date of loss.
(4) Carpeting, domestic appliances, awnings and outdoor equipment, whether or not attached to a dwelling or other structure, at the “actual cash value” at the time of loss but not exceeding the amount necessary to repair or replace. B. Coverages lF-Personal Property and 2A-Commercial Buildings at the lesser of:
(1) the “actual cash value” of the property at the time of loss;
(2) amount necessary to repair or replace the property; or
(3) “limit of liability” under this policy applying to the property insured.

At ¶ 10, the Policy sets forth a procedure for Appraisal if SAFECO, the Lender and/or the Borrower fail to agree on the amount of loss. It provides:

10. Appraisal.
If the claimant and we fail to agree on the amount of loss, either can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal each shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select an umpire within 15 days. The claimant or we can ask a judge of a court of record in the state where the “insured location” exists to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. We shall pay 50% of the other expenses of the appraisal and 50% of the compensation of the umpire. The remainder shall be paid by the party with whom we could not reach agreement. If both you and the “borrower” did not agree both you and the “borrower” shall pay the remainder equally.

Finally, the Policy provides how a loss payment will be made. Losses to the Property are adjusted with the Lender and losses to personal property are adjusted with the Borrower:

15. Loss Payment.
A. All losses except losses under Coverage IF — Personal Property:
We will adjust all losses with you. We will pay you but in no event more than the amount of your interest in the “insured location”. Amounts payable in excess of your interest will be paid to [102]*102the “borrower” unless some other person is named by the “borrower” to receive payment.

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Cite This Page — Counsel Stack

Bluebook (online)
360 B.R. 99, 2007 Bankr. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-option-one-mortgage-corp-in-re-williams-pawb-2007.