Holoka v. Deutsche Bank National Trust Co. ex rel. Harborview Mortgage Loan Pass Through Certificates (In re Holoka)
Holoka v. Deutsche Bank National Trust Co. ex rel. Harborview Mortgage Loan Pass Through Certificates (In re Holoka)
Opinion of the Court
ORDER GRANTING MOTION TO DISMISS ADVERSARY PROCEEDING (DOC. 9)
THIS MATTER is before the Court on the Motion to Dismiss Adversary Proceeding and Incorporated Memorandum of Law (the “Motion,” Doc. 9), filed by the Defendant, Deutsche Bank National Trust Co., as trustee for Harborview Mortgage Loan Pass Through Certificates, Series 2006-9 (“Defendant” or “Deutsche Bank”), and Plaintiffs’ Objection to Defendant’s Motion to Dismiss (Doc. 13). The Court heard argument on the Motion on September 18, 2014, after which the parties filed supplemental memoranda of law (Docs.23, 24).
The underlying facts are not in dispute. Plaintiffs filed a Chapter 11 bankruptcy petition on January 15, 2008.
When they filed their Chapter 11 case, the Plaintiffs owned a condominium in Santa Rosa Beach, Florida.
Class 3 of the Plan lumped treatment of claims of three secured creditors, including Deutsche Bank, together; Adagio Community Association Inc., Deutsche Bank, and the tax collector were to be “paid and satisfied in full from the surrender of the collateral.”
On December 20, 2012, Deutsche Bank filed suit to foreclose on the condo.
Discussion
A court may dismiss a complaint for “failure to state a claim upon which relief may be granted.”
I. The portions of the Complaint seeking relief for alleged damages due to a failure to foreclose or foreclose “timely ” should be dismissed.
Section 524(a)(2) of the Bankruptcy Code provides, in pertinent part, that a bankruptcy discharge “operates as an injunction against the commencement or continuation of an action ... to collect, recover or offset any such debt as a personal liability of the debtor....”
At least one court faced with similar facts has dismissed a debtor’s complaint seeking damages against a secured creditor for its alleged failure to foreclose.
1. The act of yielding to another’s power or control. 2. The giving up of a right or claim.... 3. The return of an estate to the person who has a reversion*499 or remainder, so as to merge the estate in to a larger estate....34
The court then declared: “As a matter of law, given the undisputed facts of this case the act of ‘surrender’ does not obligate [the creditor] to transfer title out of Debtors’ names.”
Plaintiffs cite nothing that defines a “timely foreclosure,” or supports the exis-fence of a cause of action for failure to foreclose as a violation of the discharge injunction under 11 U.S.C. § 524. Instead, Plaintiffs merely argue that Deutsche Bank’s motion to dismiss should be denied because Deutsche Bank only cited two published opinions, both from the same court, that support dismissal at this stage of the litigation.
The Defendant cites numerous cases in which courts have concluded that a debtor cannot force a creditor to accept surrendered property.
In a case with facts more closely reflecting those here, the First Circuit Court of Appeals distinguished In re Pratt.
The First Circuit in Canning declared that a “secured creditor ... has the prerogative to decide whether to accept or reject the surrendered collateral,”
The facts here bear no resemblance to those in In re Pratt, and instead are analogous to those in In re Canning. The Plaintiffs here make no allegations that the collateral is worthless. In fact, the documents attached to the complaint show the opposite — that the condo was worth more than $700,000 when they filed their Chapter 11 petition.
Perhaps recognizing that their reliance on In re Pratt is misplaced, the Plaintiffs attempt to state, or bolster, their cause of action by alleging that by not foreclosing sooner Deutsche Bank has been engaged in a scheme to avoid certain inventory “obligations” imposed by portions of Title 12 of the United States Code.
Deutsche Bank denies that it is subject to Title 12 at all because it is acting as a trustee with respect to its mortgage claim.
Pursuant to state law and the terms of their very own Plan, the Plaintiffs here have retained the rights and duties of ownership and possession of valuable collateral, and the Defendant has retained its state law rights to foreclose upon the property. Here, like in Canning, the creditor simply did not foreclose when the debtors
There are other problems with the Plaintiffs’ Complaint: one of the facts alleged is simply not true. Plaintiffs allege that under their confirmed Plan the Defendant was to pay the homeowner’s association fees on the condo.
While the Defendant retained its mortgage on the condominium, the Plaintiffs were free to use it, and rent it out, as they pleased.
Despite the fact that their fighting the foreclosure has effectively prevented the very “surrender” of the collateral they claim to have made, the Plaintiffs demand myriad damages from Deutsche Bank for its alleged failure to foreclose; and they seek cancelation of its mortgage.
II. The Motion to Dismiss the Complaint as to Defendant’s allegation of the right to a deficiency judgment should be granted with leave to amend.
It is undisputed that when the Defendant filed its foreclosure complaint it included a request for a deficiency judgment.
The remedy for violation of the discharge injunction is contempt.
For the reasons stated, it is
ORDERED:
1. The Defendant’s Motion to Dismiss Adversary Proceeding (Doc. 9) is GRANTED as to all allegations and claims for relief based on the Defendant’s alleged failure to foreclose, or for not “timely” foreclosing on the condo, with prejudice.
2. The Motion to Dismiss Adversary Proceeding (Doc. 9) is GRANTED, without prejudice, to the extent the Complaint alleges a violation of the discharge injunction due to the Defendant’s foreclosure compliant containing a request for a deficiency judgment. Plaintiffs have twenty-one (21) days from the date of this Order within which to file any amended complaint with respect to this allegation.
DONE and ORDERED.
. Doc. 1, at 3.
. Doc. 1-3, Exhibit J, at 5.
.Doc. 1-4, Exhibit L.
. Doc. 1; Motion to Reopen Chapter 11 Bankruptcy Case, In re Holoka, No. 08-50016 (Bankr.N.D.Fla. Apr. 23, 2014), ECF No. 249; Order Granting Motion to Reopen Chapter 11 Bankruptcy Case, In re Holoka, No. 08-50016 (Bankr.N.D. Fla. June 25, 2014), ECF No. 257.
. Doc. 1, at 2; Doc. 1-2, Exhibit E, at 1.
. Doc. 1-2, Exhibit E, at 1.
. Doc. 1-2, Exhibit E, at 1.
. Doc. 1-2, Exhibit I, at 4.
. Doc. 1-2, Exhibit H, at 1-2.
. Doc. 1-3, Exhibit I, at 6.
. Mat 9.
. Id. at 11.
. Id.
. Doc. 1, at 4.
. Doc. 13, at 3; Doc. 1-3, Exhibit K, at 1-5.
. Doc. 9, at 3; Doc. 18, at 6; Doc. 21, at 10, 22.
. Fed.R.Civ.P. 12(b)(6); Fed. R. Bankr.P. 7012(b).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Id. at 679, 129 S.Ct. 1937.
. Solis-Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985).
. Marshall Co. Bd. of Educ. v. Marshall Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
. 11 U.S.C. § 524(a)(2).
. Doc. 1, at 1, 5-6.
. Doc. 1, at 1.
. Doc. 1, at 3.
. Id. at 4-5.
. Arsenault v. JP Morgan Chase Bank, N.A., 456 B.R. 627, 628 (Bankr.S.D.Ga. 2011).
. Id. at 628, 630 (internal quotation marks omitted).
. Id. at 628.
. Id.
. Id. at 632.
. Id. at 630.
. Id. at 629.
. Black’s Law Dictionary 1458 (7th ed. 1999). Arsenault quoted the eighth edition of Black’s Law Dictionary. Arsenault, 456 B.R. at 629. The definitions are the same.
. Arsenault, 456 B.R. at 630.
. Id. at 632.
. Doc. 23, at 1-3. See Brown v. Branch Banking & Trust Co. (In re Brown), 477 B.R. 915, 916-17 (Bankr.S.D.Ga. 2012); Arsenault v. IP Morgan Chase Bank, N.A. (In re Arsenault), 456 B.R. 627, 629 (Bankr.S.D.Ga. 2011). See also Moore v. BAC Home Loan Servicing LP, 477 B.R. 918, 919-21 (Bankr. S.D.Ga. 2012) (granting the creditor’s motion for summary judgment instead of a motion to dismiss only because the case involved Georgia law instead of Florida law).
. See, e.g., In re Rose, 512 B.R. 790, 793 (Bankr.W.D.N.C. 2014) ("Although 'surrender' envisions a debtor relinquishing his or her rights in the collateral, there is no corresponding requirement that the lender ... do anything with the property.”); Brown v. Bank of Am. (In re Brown), 481 B.R. 351, 361 (Bankr.W.D.Pa. 2012) ("The bank has no duty ' to foreclose on the Property and ... the delay in foreclosure in no way forms a basis for the assertion that [the bank] is attempting to collect a discharged debt.”); Ogunfiditimi v. Deutsche Bank. Nat'l Trust Co. (In re Ogunfiditimi), Adv. No. 11-0282PM, 2011 WL 2652371, at *2-3 (Bankr.D.Md. July, 6 2011) (dismissing a complaint because a statement of intention to surrender property does not impose an affirmative duty on the creditor to take action); In re Steinberg, 447 B.R. 355, 358-59 (Bankr.S.D.Fla. 2011) (holding that a creditor may accept mortgage payments from a debtor in exchange for not foreclosing on the mortgage, but that the debtor cannot force the creditor to accept this exchange, stating, "[N]othing in the Bankruptcy Code requires a mortgagee to accept property surrendered by a chapter 7 debtor. Nothing prevents the mortgagee from allowing the debtor to remain in the home.”); In re Cormier, 434 B.R. 222, 233 (Bankr.D.Mass. 2010) ("[The creditor] cannot be compelled to take a deed-in-lieu and is entitled to exercise its options available under the mortgage.... ”); Losak v. Beneficial Consumer Discount Co. (In re Losak), 375 B.R. 162, 164-65 (Bankr. W.D.Pa. 2007) (dismissing a complaint for, among other things, failing to allege that the creditor accepted the surrender of the property); Phillips v. City of South Bend (In re Phillips), 368 B.R. 733, 744 (Bankr.N.D.Ind. 2007) ("[T]he Plaintiff could not compel the mortgage holder to accept the surrendered, quitclaimed property. As a consequence, the mortgagor ... continues to be the owner of the property, with all the rights and obligations.”); In re White, 282 B.R. 418, 423 (Bankr.N.D.Ohio 2002) ("[T]he Code does not provide for the court or the debtor to direct the means by which the secured creditor deals with the surrendered property.”.); In re Koeller, 170 B.R. 1019, 1023 (Bankr.W.D.Mo. 1994) ("Under the Bankruptcy Code, the surrender of collateral requires the mutual agreement between the parties and occurs as a result of the consent of both parties.” (citing In re Service, 155 B.R. 512, 514 (Bankr. E.D.Mo. 1993)); In re Service, 155 B.R. 512, 514 (Bankr.E.D.Mo. 1993) ("Whether to proceed with its remedies is within the sole discretion of [the creditor], and Debtors may not compel [the creditor] to enforce its rights.”).
Residing in a surrendered home, or allowing others to reside there, is not an act that interferes with a secured creditor’s ability to seek possession by available legal means. In Florida, a lien theory state, a mortgagee has no right to possession until transfer at a foreclosure sale. So the mortgagor continues to legally own the property after default until a foreclosure or otherwise valid transfer of title occurs. A debt- or's indication of intent to surrender real property does not change this....
In re Plummer (internal citations omitted).
. Pratt v. Gen. Motors Acceptance Corp. (In re Pratt), 462 F.3d 14 (1st Cir. 2006).
. Id. at 15-16.
. Id.
. Id.
. Id. at 19.
. Id.
. Id.
. Id. at 20.
. Id. .
. Id.
. Canning v. Beneficial Maine, Inc. (In re Canning), 706 F.3d 64, 69-72 (1st Cir. 2013).
. Id. at 66.
. Id. at 67.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id. at 68.
. Id. at 69-70.
. Id. at 70.
. Id. at 71.
. Id. at 72.
. Id.
. Id. at 73.
. Doc. 1-2, Exhibit E, at 1.
. 12 U.S.C. § 29 (2014). Title 12 is a statute that regulates national banking associations and, in material part, restricts how long they
. Doc. 1, at 4; Canning v. Beneficial Maine, Inc. (In re Canning), 706 F.3d 64, 70 (1st Cir. 2013).
. Doc. 1, at 4; Canning, 706 F.3d at 68-73 (using “coerce” or “coercive” throughout); Pratt v. Gen. Motors Acceptance Corp. (In re Pratt), 462 F.3d 14, 16-20 (1st Cir. 2006) (using “coerce” or “coercive” throughout).
. Title 12 provides a mechanism for national banking associations to act as trustees. 12 U.S.C. § 92a (2014).
. In response to the point that Defendant is acting as a trustee Plaintiffs cite to Hollis v. Ameriquest Mort. Co., where the issue was whether the federal Truth in Lending Act and National Banking Act preempted New Jersey state law. Hollis v. Ameriquest Mort. Co., No. 07-22579, 2009 WL 3030125 (Bankr.D.N.J. Sept. 17, 2009). That issue is not relevant to the facts or issues here.
. Pratt and Canning were concerned with subterfuges intended to coerce payment of a discharged debt. Canning, 706 F.3d at 70-71 (highlighting, for example, the court's concern for a "subterfuge intended to coerce payment of a discharge debt” and "coercive reaffirmation demands”); Pratt, 462 F.3d at 18-20 (emphasizing the concern that "debtors are neither coerced nor harassed by secured creditors into reassuming debts which would otherwise be entitled to discharge” and "debtors ... are not unfairly coerced into repaying discharged prepetition debts”).
. The HOA or condo dues that Plaintiffs may owe are non-dischargeable because they arose post-discharge, and Plaintiffs have no personal liability for real estate taxes in Florida.
. Even if Deutsche Bank has been trying to avoiding any applicable inventory regulations, it could very well have a legitimate business reason for so doing. The real estate market during the past few years has been abysmal. It would not appear unreasonable for a lender •to refrain from taking additional property into its inventory for as long as possible.
. Id. at 68 (quoting Canning v. Beneficial Me., Inc. (In re Canning), 442 B.R. 165, 172 (Bankr.D.Me. 2011).
. Id. at 71-72.
. See also, Casarotto v. Mo. Dept. of Revenue, 407 B.R. 369, 377-78 (W.D.Mo. 2009) (granting summary judgment where debtor did not show that a creditor's refusal to release a lien that served a legitimate economic purpose “was a coercive attempt to enforce Plaintiffs personal obligation”) (internal quotation marks omitted).
. Doc. 1, at 3.
. Doc. 1-3, Exhibit I, at 6-12.
. Id. at 9, 11.
. Fla. Stat. § 718.116(2014).
. Doc. 1-3, Exhibit K.
. In re Plummer, 513 B.R. 135 (Bankr. M.D.Fl. 2014) ("The debtor is not required to take any affirmative action to physically deliver the property. But the debtor cannot impede the creditor's efforts to take possession of its collateral by available legal means.... ”).
. Doc. 1, at 5-6. Fighting the foreclosure action in state court only increases the harms for which the Plaintiffs seek to hold the Defendants responsible. While the Plaintiffs drag out the foreclosure proceedings, real estate taxes and homeowner’s association dues will continue to accrue. It would be manifestly unjust for this Court to hold the Defen
. Doc. 23, at 5-6. The cases cited by the Plaintiffs that avoid liens are distinguishable as neither involved a violation of the discharge injunction. Neither case avoided a lien valid under state law. In re Hougland, No. 6:10-bk-04235-KS J, at 6 (Bankr. M.D.Fla. Mar. 15, 2013), permitted an order to be filed in the public records and serve as a full satisfaction of release of a mortgage if the creditor did not object to the order. Arsenault v. Realty Funding Corp. (In re Arsenault), 184 B.R. 864, 874 (Bankr.D.N.H. 1995), invalidated a contract-and the mortgage the contract created-under New Hampshire state law.
. Doc. 1, at 11.
. Doc. 9, at 3.
. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 506 (9th Cir. 2002); In re Bassett, 255 B.R. 747, 755 (9th Cir. BAP 2000), aff’d in part, denied in part, 285 F.3d 882 (9th Cir. 2002), cert. denied, 537 U.S. 1002, 123 S.Ct. 496, 154 L.Ed.2d 398 (2002).
. See Hemar Ins. Co. of Am. v. Cox (In re Cox), 338 F.3d 1238, 1243 (11th Cir. 2003) (refusing to use 11 U.S.C. § 105(a) to override the specific language of 11 U.S.C. § 523(a)(8) setting forth the requirements for the dischargeability of student debts).
. Pereira v. First N. Am. Nat’l Bank, 223 B.R. 28, 31 (N.D.Ga. 1998).
. Cox v. Zale Del., Inc., 239 F.3d 910, 917 (7th Cir. 2001); Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421-23 (6th Cir. 2000); Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388-89 (11th Cir. 1996); Pereira, 223 B.R. at 31.
. Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Alderwoods Grp. Inc. v. Garcia, 682 F.3d 958, 970 (11th Cir. 2012).
. Hardy, 97 F.3d at 1390.
. Nibbelink v. Wells Fargo Bank, N.A., 403 B.R. 113, 120 (Bankr.M.D.Fla. 2009).
. Because Deutsche Bank has withdrawn its request for a deficiency judgment in state court, there is no longer any ongoing violation of the discharge injunction. By granting the Plaintiffs leave to amend, the Court is not ruling that the Plaintiffs have a viable action for contempt against the Defendant. If the Plaintiffs elect to amend their complaint, they must comply with the Local Rules of this Court and the Northern District of Florida on form of pleadings.
. If the Plaintiffs elect to amend their complaint, they must comply with the Local Rules of this Court and the Northern District of Florida on form of pleadings.
Reference
- Full Case Name
- IN RE: Michael Charles HOLOKA & Joann Marlene Holoka, Debtors. Michael Charles Holoka & Joann Marlene Holoka v. Deutsche Bank National Trust Co., as Trustee for Harborview Mortgage Loan Pass Through Certificates, Series 2006-9
- Cited By
- 1 case
- Status
- Published