In re Sherman
In re Sherman
Opinion of the Court
THIS MATTER is before the Court on the Debtor's Notice of Conversion of Bankruptcy Case from Chapter 7 to Chapter 13 ("Motion to Reconvert"). See Docket No. 153. Debtor seeks to reconvert her Chapter 7 case to Chapter 13 after previously *454converting her bankruptcy case from Chapter 13 to Chapter 7. Philip J. Montoya, Chapter 7 Trustee ("Chapter 7 Trustee") and Tiffany M. Cornejo, Chapter 13 Trustee ("Chapter 13 Trustee") object to the Motion to Reconvert.
The Court held a final hearing on the Motion to Reconvert on May 23, 2019. Parties who appeared at the final hearing were noted on the record.
FACTS AND PROCEDURAL HISTORY
Debtor originally filed a voluntary petition for bankruptcy under Chapter 13 of the Bankruptcy Code on March 28, 2018. See Docket No. 1. Approximately seven months later, on September 18, 2018, she converted her case to Chapter 7. See Docket No. 91.
While her case proceeded under Chapter 13, the Debtor filed three proposed Chapter 13 Plans. The Debtor's first Chapter 13 Plan filed May 15, 2018, proposed plan payments of $ 1,735.65 per month for sixty months. See Docket No. 28. Debtor's second Chapter 13 Plan filed June 14, 2018 proposed plan payments of $ 400.00 per month for thirty-six months. See Docket No. 48. Debtor's third Chapter 13 Plan filed June 20, 2018 proposed plan payments of $ 150.00 per month for thirty-six months, plus two back payments totaling $ 300.00. See Docket No. 51. Debtor did not confirm a Chapter 13 Plan and did not make any of the proposed plan payments. See Chapter 13 Standing Trustee's Final Report and Account - Docket No. 129.
Debtor's statements and schedules reflect that she owns certain real property located at 2109 Stanford Drive, Albuquerque, New Mexico (the "Stanford Property"), subject to a first and second mortgage. See Docket No. 26. The Stanford Property is the Debtor's principal residence. Schedule I reflects monthly income of $ 988.00, consisting of social security payments of $ 588.00, plus contributions from her mother of $ 400.00 per month. Schedule J does not reflect a mortgage expense. Id. Other than the mortgage debt, the Debtor has few other debts.
Wells Fargo Bank, National Association, as Trustee for Lehman Mortgage Trust Mortgage Pass-Through Certificates, Series 2007-5 ("Wells Fargo/2007-5") filed a proof of claim asserting a claim in the amount of $ 179,966,81 secured by the Stanford Property. See Claim No. 3-1. The payment history attached to Wells Fargo/2007-5's proof of claim shows that the *455regular monthly mortgage payment, without including the escrow amount for taxes and insurance, is $ 672.67, and that the Debtor has not made a regular monthly mortgage payment since June of 2011. Id. A stipulated in rem foreclosure judgment on the Stanford Property was entered against the Debtor pre-petition. See In Rem Stipulated and Default Judgment for Foreclosure and Order of Sale ("Foreclosure Judgment") - Exhibit A.
The Debtor admits that she has not made a mortgage payment since June of 2011 and has not made any post-petition mortgage payments. The Foreclosure Judgment states a balance of $ 153,328.46 as of December 4, 2017. The proof of claim filed by Wells Fargo/2007-5 reflects a pre-petition arrears of $ 92,953.55. See Claim No. 3-1. The current regular monthly mortgage payment on the first mortgage is approximately $ 911.00, which includes the regular fixed interest monthly mortgage payment of $ 672.67 plus the escrow payment for homeowners' insurance and property taxes. The current regular monthly mortgage payment on the second mortgage is $ 106.72.
Wells Fargo Bank, National Association, as Trustee for Lehman Mortgage Trust Mortgage Pass-Through Certificates, Series 2007-9 ("Wells Fargo/2007-9") filed a motion for relief from stay to exercise its right to foreclose its interest in the Stanford Property. See Motion for Relief from the Automatic Stay and for the Abandonment of Property by Wells Fargo Bank, National Association, as Trustee for Lehman Mortgage ("Stay Motion") - Docket No. 75. The Stay Motion asserted, among other things, that the Debtor failed to make four post-petition mortgage payments from April 1, 2018 through July 1, 2018. Id. Ultimately, Wells Fargo/2007-5 and the Debtor stipulated that the Stay Motion should be denied without prejudice because the Stay Motion was filed under the wrong creditor name. See Docket No. 146.
The Debtor testified at the final hearing on the Motion to Reconvert that she has several prospects that she intends to explore that will allow her to keep the Stanford Property. The Stanford Property has four bedrooms. The Debtor believes she would be able to rent two of those bedrooms for a minimum monthly rent of $ 500.00 per renter. She has not yet advertised or obtained any potential renters, but has a friend who is a real estate agent whom the Debtor plans to contact to assist her with renting the property. Her social security income has increased from $ 588.00 per month to $ 604.00 per month. She also intends to apply for supplemental social security income. The Debtor, who is an only child, also testified that she believes her mother would likely be able and willing to substantially increase the monthly contribution she gives to the Debtor. The Debtor's mother is retired and her home is paid off. Finally, the Debtor suggested that she may approach a family in her neighborhood who owns five other homes to see if they might be interested in purchasing her home, with some arrangement that would allow the Debtor to continue to live in the Stanford Property.
*456DISCUSSION
Conversion of a bankruptcy case from Chapter 7 to Chapter 13 is governed by
The debtor may convert a case under this title to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title.
Other courts conclude that the Court retains discretion to allow a debtor who has previously converted from Chapter 13 to Chapter 7 to reconvert the case to Chapter 13. See, e.g. , Povah v. Hansbury and Finn, Inc. (In re Povah) ,
If reconversion is within the Court's discretion, in determining whether to exercise that discretion, the Court must carefully scrutinize the circumstances surrounding the debtor's request to reconvert to Chapter 13,
The Chapter 7 Trustee waived his argument that reconversion is impermissible under
Eligibility for Chapter 13 relief requires a debtor to have regular income. See
Debtor's schedules reflect that her monthly income is $ 988.00, comprised of social security payments and contributions from the Debtor's mother. Even if the contributions from the Debtor's mother are not regular, the social security component of the Debtor's income can constitute "regular income" under
The Debtor's stated purpose for wanting to reconvert to Chapter 13 is to retain the Stanford Property. Other than the first and second mortgages on the Stanford Property, she has no other significant debts. The Debtor does not need a discharge because her personal liability on the mortgages has already been discharged through a prior Chapter 7 bankruptcy case. See Case No. 09-10975-m7.
Assuming the pre-petition arrears on the first mortgage are at least $ 92,000, the Debtor would have to make payments of approximately $ 1,533.00 per month over a sixty month plan to cure the arrears.
If the Debtor were able to rent two rooms in the Stanford Property for $ 500 each, and get her mother to commit to contributing at least $ 1,500 per month, it may be possible for the Debtor to propose a feasible Chapter 13 plan. But based on the evidence currently before the Court, the prospect of a feasible plan is too speculative. There is no evidence of the Debtor's mother's willingness or ability to help fund the Debtor's Chapter 13 plan at that level. The Debtor has not yet obtained or even sought any willing renters for her property. In short, the Debtor has failed to prove by a preponderance of the evidence that she can propose a feasible plan to pay the amounts due under the mortgage. See
In deciding whether reconversion is appropriate, the Court will also take into account that denying the Motion to Reconvert will not necessarily preclude the Debtor from obtaining relief in another Chapter 13 case if she can (i) obtain the rental income and funds from her mother necessary to make a Chapter 13 plan feasible that pays her mortgages in the amounts required by the Bankruptcy Code and the Chapter 13's trustee's fees, and (ii) begin making payments proposed by the plan to the Chapter 13 trustee within 30 days after commencement of the Chapter 13 case as required by
If the Debtor attends the meeting of creditors in this Chapter 7 case and this Chapter 7 case is not dismissed,
Given the significant delays in this bankruptcy case while it was pending under Chapter 13, and the Debtor's failure to make any payments to the Chapter 13 trustee in the amounts proposed by the plan or either of the two proposed amended *459plans, as required by Code § 1326(a)(1)(A), if the Debtor were to file another Chapter 13 case following the closing of this Chapter 7 case, the Court would expect the Debtor to (i) file a plan within 14 days of case commencement as required by Code § 1321 and Bankruptcy Rule 3015(b); (ii) file a plan that at least proposes to make payments on the first mortgage against the Stanford Property in an amount sufficient to cure the arrearage over a period not to exceed five years plus the amount necessary to keep post-petition ongoing payments current; and (iii) begin making payments to the Chapter 13 trustee in the amount proposed by the plan within 30 days after commencement of the bankruptcy case.
CONCLUSION
The Debtor has been in bankruptcy for over a year with little progress toward a successful resolution, either through confirmation of a Chapter 13 plan, or through the entry of a discharge in Chapter 7. Her testimony about possible options that will increase her monthly income to fund a feasible Chapter 13 plan are too speculative to allow reconversion. If the Debtor is able to increase her income enough to propose a feasible plan to cure the mortgage arrears and maintain the regular monthly mortgage payments, she could file another Chapter 13 plan after the conclusion of this Chapter 7 case if a foreclosure sale has not already occurred.
WHEREFORE, IT IS HEREBY ORDERED that the Motion to Reconvert is DENIED.
See Trustee's Objection to Debtor(s)' Notice of Conversion of Bankruptcy Case from Chapter 7 to Chapter 13 filed by the Chapter 13 Trustee - Docket No. 159; Trustee's Objection to Debtor's Notice of Conversion of Bankruptcy Case from Chapter 7 to Chapter 13 filed by the Chapter 7 Trustee - Docket No. 164. The Debtor filed a document titled Debtor's Notice of Conversion of Bankruptcy Case from Chapter 7 to Chapter 13 Exhibits [
The Chapter 13 Trustee was unable to appear at the final hearing due to a scheduling conflict, but supports the Chapter 7 Trustee's position opposing the Debtor's reconversion. See Trustee's Notice of Non-Appearance at Final Hearing on Motion to Re-Convert to Chapter 13 (Docket No. 169).
The total of all the unsecured claims listed on Schedule E/F is $ 1,133.58.
The judgment was entered in favor of Nationstar Mortgage, LLC on December 4, 2017.
See Anderson ,
Anderson ,
See Manouchehri ,
See Johnson ,
$ 92,000 ÷ 60 months = $ 1533
$ 1533 + $ 911 (regular monthly mortgage payment) = $ 2,444
Code section 109(g) makes an individual debtor ineligible to file a bankruptcy case if "the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case."
Code section 109(g) also makes an individual debtor ineligible to file a bankruptcy case if "the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title."
If the Debtor were to contest who owns the first mortgage loan in a subsequently filed Chapter 13 case, the Debtor would still need to make the mortgage payments proposed by the Plan to the Chapter 13 for the Chapter 13 trustee to hold pending further order of the court.
Reference
- Full Case Name
- IN RE: Cheryl SHERMAN, Debtor.
- Cited By
- 1 case
- Status
- Published