In re Smith
In re Smith
Opinion of the Court
OPINION
The Chapter 13 Debtor, Steven Smith, is attempting to satisfy a mortgage against his property by paying to OneWest Bank the “allowed amount” of its secured claim under 11 U.S.C. § 1325(a)(5)(B)(ii). OneWest has filed a secured claim against the Debtor in the amount of $122,486.42.
OneWest Bank’s mortgage against the Debtor’s property was signed by only one of the two owners of the property, Steven and Yvette Smith. The Smiths owned the property as Tenants by the Entireties. For reasons still not clear, the mortgagee, then Indymae, instead of insisting that Yvette act as a signatory, requested that Steven’s mother, Dorothy, execute the mortgage with Steven, the Debtor, despite the fact that she was not an owner. Under Pennsylvania law, en-tireties property is exempt from execution for the debts of one of the spouses. Beihl v. Martin, 236 Pa. 519, 523, 84 A. 953, 954 (1912).
This background spawned some unusual issues in the current bankruptcy. Initially, the Debtors (Yvette was then a joint debtor) objected to OneWest’s se
Rather than attack the computations, OneWest stands firm with its position that Steven acted as an agent for Yvette in signing the mortgage, and therefore, their mortgage is as enforceable as if Yvette had cosigned the mortgage with her spouse. Deutsche Bank Nat. Trust Co. v. Evans, 421 B.R. 193 (W.D.Pa. 2009). The position may be tenable but for the fact that OneWest’s predecessor, Indymac, was aware before the mortgage closing that a joint owner was not going to execute the mortgage. Stipulation of Facts filed to Adversary No. 4:ll-ap-00335 at Doc. # 8 and incorporated by reference at the time of hearing on this issue. Such be the case, I certainly wouldn’t impose Yvette upon OneWest as a mortgagee when their predecessor voluntarily opted to proceed with the mortgage in her absence. In the final analysis, it really makes no difference to plan confirmation. OneWest Bank holds a mortgage against the Debtor’s real property that the parties agree is a claim against the Debtor’s residence. Since the residence is the only item that serves as collateral for the loan, it is barred from modification by the terms of § 1322(b)(2). The Debtor’s argument that § 1325(a)(5)(B)(ii) trumps § 1322(b)(2) has been rejected by our Third Circuit Court of Appeals in First Nat. Fidelity Corp. v. Perry, 945 F.2d 61, 66 (3d Cir. 1991). (“[Sjince § 1322(b)(2) prohibits a plan that works a modification of the rights of a home mortgage lender, the fact that such a plan may meet the requirements of § 1325(a)(5)(B)(ii) is simply not relevant.”)
Moreover, Debtor’s argument that OneWest’s interest can somehow be valued at $5000 is based not only on the accepted science of actuarial statistics, but also on
It is for these reasons that OneWest’s Objection must be sustained and the Debt- or’s Plan cannot be confirmed. The Debt- or will be given thirty days to file an Amended Plan.
An Order will follow.
ORDER
For those reasons indicated in the Opinion filed this date, IT IS HEREBY
ORDERED that the Objection to Fourth Amended Chapter 13 Plan filed by OneWest Bank (Doc. # 129) is sustained and the Debtor’s Fourth Amended Plan (Doc. # 123) cannot be confirmed.
The Debtor is hereby given thirty days from the date of this Order to file an Amended Plan.
. The parties have agreed that the bankruptcy filings and the information therein can be accepted as evidence at the confirmation hearing.
. THE COURT: How did you come up with that value?
MR. WEISS: It was really nothing' — no magic to it. I just came up with a number.
THE COURT: Did you make it up?
MR. WEISS: Pretty much.
Transcript of 1/27/2012 at 9 (Doc. # 136).
Reference
- Full Case Name
- In re Steven W. SMITH, Debtor
- Status
- Published