Atkins v. Bank of America, N.A. (In re Atkins)
Atkins v. Bank of America, N.A. (In re Atkins)
Opinion of the Court
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ APPLICATION FOR DEFAULT JUDGMENT
The plaintiffs filed this application for default judgment on August 19, 2013. For the reasons stated below, the application is denied in part and granted in part so that the lien held by the defendants is released.
Background
On September 30, 2009, the plaintiffs filed a case under chapter 13 and filed their plan. At the time of the filing, the plaintiffs owned homestead property located at 3864-225th Lane NW, St. Francis, Minnesota.
The plaintiffs’ chapter 13 plan treats the second priority mortgage as unsecured as follows:
1. No ongoing payments shall be made upon the second mortgage against the homestead held by Bank of America #xxxx6175 by the debtors or trustee, and any claims filed by said creditor shall be treated as a non-priority unsecured claim, to share with other unsecured creditors per paragraph 11. Debtors reserve the right to request stripping of the lien by motion or adversary proceeding, but not until at or near the time of discharge.
No one objected to the plan and it was confirmed on November 20, 2009. On March 18, 2013, the plaintiffs received their discharge after completing all plan payments. The bankruptcy case was closed on May 9, 2013.
Analysis
The first issue is whether the court may grant the requested relief because in 2009, at the time that the plaintiffs’ plan was confirmed, the bankruptcy judges in Minnesota did not permit a debtor to avoid a lien secured by a debtor’s principal residence.
Determining the Value of the Property
The first part of the plaintiffs’ application requests a determination that the value of the property was $92,000.00 as of the petition date, pursuant to 11 U.S.C. § 506(a) and Fed. R. Bankr.P. 3012. The purpose of section 506(a) and Rule 3012 is to determine the secured status of a creditor’s claim. Here, the plaintiffs did not bring a motion to value pursuant to § 506(a) or Fed. R. Bankr.P. 3012 prior to confirmation of the chapter 13 plan. Rather, the confirmed plan treats the defendants’ claim as unsecured. Pursuant to 11 U.S.C. § 1327(a), the provisions of a confirmed plan bind a debtor and a creditor as confirmation is, essentially, an adjudication of the issues of classification and treatment of claims provided for in the plan. It is res judicata on all issues that were, or could have been, brought prior to confirmation.
Avoiding the Lien of the Wholly Unsecured Creditor
In their chapter 13 plan, the plaintiffs reserved the right to request stripping the lien at or near the time of discharge. The second part of their application for a default judgment is that request.
After the Bankruptcy Appellate Panel’s ruling in In re Fisette,
Conclusion
Based on these findings, the court denies in part and grants in part the plaintiffs’ application for default judgment.
IT IS ORDERED:
1. The request for a determination of the value of the property is denied as moot.
2. That the mortgage lien in favor of Mortgage Electronic Registration Systems, as nominee for Bank of America, N.A., its successors and assignees on the plaintiffs’ homestead legally described as: Lot 3, Block 1, River Shores, Anoka County, Minnesota, and recorded with the Anoka County Recorder as Document No. A 1991124.008 is hereby released.
LET JUDGMENT BE ENTERED ACCORDINGLY.
. The legal description for the homestead property is Lot 3, Block 1, River Shores, Anoka County, Minnesota.
. In re Hughes, 402 B.R. 325 (Bankr.D.Minn. 2009); In re Frame, No. 09-41010, 2009 WL 8725111 (Bankr.D.Minn. Sept. 23, 2009); In re Hussman, 133 B.R. 490 (Bankr.D.Minn. 1991).
. 559 U.S. 260, 268-69, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010).
. The plaintiffs’ confirmed plan contained language referencing the plaintiffs' intent to-avoid the lien at the completion of the plan. After completing the plan, the plaintiffs brought this adversary proceeding. The summons and the complaint were served upon the defendants by certified U.S. mail. The plaintiffs’ attorney represented to the court that he had substantial discussions with representatives of the defendants regarding this adversary proceeding. While the defendants did not file an answer to the complaint, the court is satisfied that the defendants were properly notified of the requested relief.
.In re Parmenter, 527 F.3d 606, 609 (6th Cir. 2008) (citing In re White, 370 B.R. 713, 718 (Bankr.E.D.Mich. 2007)); In re Cruz, 253 B.R. 638, 641 (Bankr.D.N.J. 2000) (citing In re Szostek, 886 F.2d 1405, 1408 (3d Cir. 1989)).
. In re Crum, 479 B.R. 734, 742 (Bankr.S.D.Ohio 2012); In re Berrouet, 469 B.R. 393, 397 (Bankr.N.D.Ga. 2012); In re Charlick, 444 B.R. 762, 765 (Bankr.E.D.Mich. 2011); In re Taylor, No. 06-76846, 2011 WL 7070518 (Bankr.N.D.Ga. Dec. 7, 2011); In re Rutt, 457 B.R. 97, 101 (Bankr.D.Colo. 2010); In re Miller, 428 B.R. 791, 799 (Bankr.S.D.Ohio 2010); In re Leingang, No. 83-05201, 1985 WL 660777 (Bankr.D.N.D. June 6, 1985).
. In re Fisette, 455 B.R. 177 (8th Cir. BAP 2011), as revised (Nov. 11, 2011), appeal dismissed, 695 F.3d 803 (8th Cir. 2012).
. Local Rule 3012-1.
. The court notes that all future proposed orders should comply fully with Local Rule 3012 — 1(f).
Opinion of the Court
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ APPLICATION FOR DEFAULT JUDGMENT
The plaintiffs filed this application for default judgment on August 19, 2013. For the reasons stated below, the application is denied in part and granted in part so that the lien held by the defendants is released.
Background
On September 30, 2009, the plaintiffs filed a case under chapter 13 and filed their plan. At the time of the filing, the plaintiffs owned homestead property located at 3864-225th Lane NW, St. Francis, Minnesota.
The plaintiffs’ chapter 13 plan treats the second priority mortgage as unsecured as follows:
1. No ongoing payments shall be made upon the second mortgage against the homestead held by Bank of America #xxxx6175 by the debtors or trustee, and any claims filed by said creditor shall be treated as a non-priority unsecured claim, to share with other unsecured creditors per paragraph 11. Debtors reserve the right to request stripping of the lien by motion or adversary proceeding, but not until at or near the time of discharge.
No one objected to the plan and it was confirmed on November 20, 2009. On March 18, 2013, the plaintiffs received their discharge after completing all plan payments. The bankruptcy case was closed on May 9, 2013.
Analysis
The first issue is whether the court may grant the requested relief because in 2009, at the time that the plaintiffs’ plan was confirmed, the bankruptcy judges in Minnesota did not permit a debtor to avoid a lien secured by a debtor’s principal residence.
Determining the Value of the Property
The first part of the plaintiffs’ application requests a determination that the value of the property was $92,000.00 as of the petition date, pursuant to 11 U.S.C. § 506(a) and Fed. R. Bankr.P. 3012. The purpose of section 506(a) and Rule 3012 is to determine the secured status of a creditor’s claim. Here, the plaintiffs did not bring a motion to value pursuant to § 506(a) or Fed. R. Bankr.P. 3012 prior to confirmation of the chapter 13 plan. Rather, the confirmed plan treats the defendants’ claim as unsecured. Pursuant to 11 U.S.C. § 1327(a), the provisions of a confirmed plan bind a debtor and a creditor as confirmation is, essentially, an adjudication of the issues of classification and treatment of claims provided for in the plan. It is res judicata on all issues that were, or could have been, brought prior to confirmation.
Avoiding the Lien of the Wholly Unsecured Creditor
In their chapter 13 plan, the plaintiffs reserved the right to request stripping the lien at or near the time of discharge. The second part of their application for a default judgment is that request.
After the Bankruptcy Appellate Panel’s ruling in In re Fisette,
Conclusion
Based on these findings, the court denies in part and grants in part the plaintiffs’ application for default judgment.
IT IS ORDERED:
1. The request for a determination of the value of the property is denied as moot.
2. That the mortgage lien in favor of Mortgage Electronic Registration Systems, as nominee for Bank of America, N.A., its successors and assignees on the plaintiffs’ homestead legally described as: Lot 3, Block 1, River Shores, Anoka County, Minnesota, and recorded with the Anoka County Recorder as Document No. A 1991124.008 is hereby released.
LET JUDGMENT BE ENTERED ACCORDINGLY.
. The legal description for the homestead property is Lot 3, Block 1, River Shores, Anoka County, Minnesota.
. In re Hughes, 402 B.R. 325 (Bankr.D.Minn. 2009); In re Frame, No. 09-41010, 2009 WL 8725111 (Bankr.D.Minn. Sept. 23, 2009); In re Hussman, 133 B.R. 490 (Bankr.D.Minn. 1991).
. 559 U.S. 260, 268-69, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010).
. The plaintiffs’ confirmed plan contained language referencing the plaintiffs' intent to-avoid the lien at the completion of the plan. After completing the plan, the plaintiffs brought this adversary proceeding. The summons and the complaint were served upon the defendants by certified U.S. mail. The plaintiffs’ attorney represented to the court that he had substantial discussions with representatives of the defendants regarding this adversary proceeding. While the defendants did not file an answer to the complaint, the court is satisfied that the defendants were properly notified of the requested relief.
.In re Parmenter, 527 F.3d 606, 609 (6th Cir. 2008) (citing In re White, 370 B.R. 713, 718 (Bankr.E.D.Mich. 2007)); In re Cruz, 253 B.R. 638, 641 (Bankr.D.N.J. 2000) (citing In re Szostek, 886 F.2d 1405, 1408 (3d Cir. 1989)).
. In re Crum, 479 B.R. 734, 742 (Bankr.S.D.Ohio 2012); In re Berrouet, 469 B.R. 393, 397 (Bankr.N.D.Ga. 2012); In re Charlick, 444 B.R. 762, 765 (Bankr.E.D.Mich. 2011); In re Taylor, No. 06-76846, 2011 WL 7070518 (Bankr.N.D.Ga. Dec. 7, 2011); In re Rutt, 457 B.R. 97, 101 (Bankr.D.Colo. 2010); In re Miller, 428 B.R. 791, 799 (Bankr.S.D.Ohio 2010); In re Leingang, No. 83-05201, 1985 WL 660777 (Bankr.D.N.D. June 6, 1985).
. In re Fisette, 455 B.R. 177 (8th Cir. BAP 2011), as revised (Nov. 11, 2011), appeal dismissed, 695 F.3d 803 (8th Cir. 2012).
. Local Rule 3012-1.
. The court notes that all future proposed orders should comply fully with Local Rule 3012 — 1(f).
Reference
- Full Case Name
- In re Tammy L. ATKINS and Timothy T. Atkins, Debtors. Tammy L. Atkins and Timothy T. Atkins v. Bank of America, N.A. and The Bank of New York Mellon
- Cited By
- 3 cases
- Status
- Published