Shoemake v. SN Servicing Corp.
Shoemake v. SN Servicing Corp.
Opinion of the Court
This action is an appeal from the United States Bankruptcy Court for the Middle District of Tennessee. The underlying action arose as an adversary proceeding in relation to the Shoemakes' Chapter 13 bankruptcy. This appeal is from an Order granting Appellee SN Servicing Corporation's Motion to Dismiss and an Order denying the Shoemakes' Motion to Reconsider and granting dismissal as to Appellee Seneca Mortgage Servicing LLC. Appellants' claims that were dismissed, and for which this appeal is filed, are: (1) removal of cloud on the title; (2) violation of the automatic stay; and (3) violation of the Confirmation Order.
Background
The Shoemakes filed for Chapter 13 bankruptcy on November 30, 2011. Schedule D of their bankruptcy petition included a disputed debt to the Appellees' predecessor, secured by a secondary deed of trust on residential real estate. On March 22, 2012, an entity called Wingspan Portfolio Advisors filed a proof of claim in the Shoemakes' bankruptcy as to this secondary deed of trust (Doc. No. 4 at 60). The Trustee moved to disallow that claim because the "name of the creditor on the face of the proof of claim is not supported by the documents attached." (Id. at 26). Neither the Shoemakes, nor Appellees, nor Wingspan Portfolio Advisors responded to the Trustee's objection. The Bankruptcy Court disallowed the claim because it was *743not filed by the actual holder of the note underlying the deed of trust (Id. at 28). The Shoemakes' Chapter 13 Plan, as confirmed, included treatment of the subject debt as a "long term" debt with post-confirmation payments of $300 and an arrearage of $11,000 (Id. at 20-21). The Shoemakes received a discharge from their bankruptcy on November 30, 2015 (Id. at 29). Appellees
The Shoemakes argue that disallowance of the Wingspan Portfolio Advisors' proof of claim voided the lien allegedly attached to that claim. They also contend that because Appellees' predecessors continued to assess fees and other charges during the pendency of the bankruptcy, Appellees are in violation of the automatic stay and the Confirmation Order for trying to collect those amounts.
Standard of Review
The Court has jurisdiction to hear this appeal under
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal,
Removal of Cloud on Title
The Bankruptcy Code provides that a secured creditor may file a proof of claim.
*744Appellants contend that because the Bankruptcy Court disallowed the claim at issue, the lien allegedly connected to that claim was rendered void. Appellees argue (and the Bankruptcy Court found) that the claim at issue was disallowed on procedural, not substantive, grounds; in other words, the Bankruptcy Court never made a determination regarding the merits of Wingspan Portfolio Advisors' claim and, therefore, the lien remains. No one disputes that the proof of claim was filed by the wrong entity.
The Note in the record, dated July 17, 2006, is from the Shoemakes to a lender identified as Ownit Mortgage Solutions, Inc. (Doc. No. 4 at 77). The deed of trust was originally granted to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Ownit Mortgage Solutions, Inc. (Id. at 67 and 168). The proof of claim included an assignment from MERS to Homevest Capital, LLC (Id. at 66). In addition, an allonge attached to the proof of claim indicated that Ownit Mortgage Solutions endorsed the note to the order of Homevest Capital, LLC. (Id. at 76 and 168-69). Nothing was filed to indicate that Wingspan Portfolio Advisors had any interest in the note. Therefore, the Bankruptcy Court disallowed the claim, but not on its merits.
Lack of the proof of claim documentation required by Rule 3001(c), which is a procedural rule, is not a substantive ground for disallowing a claim. In re Porter,
The claim in this case was not disallowed against the actual holder of the note, because the actual holder of the note did not file a proof of claim. Moreover, nothing in the proof of claim shows any connection whatsoever to either of the Appellees. Disallowance was not based upon any finding as to substance; in fact, the substance of the claim was not even considered.
*745The Shoemakes' Plan treated this second deed of trust as valid. Even though they allegedly disputed the claim, they included it in their Plan as a "long-term" debt. (Doc. No. 4 at 20-21). The Court finds that the Bankruptcy Judge's ruling was correct-the lien now held by Appellees was not voided by disallowance of the claim, on procedural grounds, in the Shoemakes' bankruptcy. As to that issue, the decision of the Bankruptcy Court will be affirmed.
Automatic Stay
The filing of a bankruptcy petition operates as a stay, applicable to all entities, of, among other things, any act to create, perfect, or enforce any lien against property of the estate; any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the bankruptcy case; and any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the bankruptcy case.
The Appellees, however, were not involved in any manner with this debt during the automatic stay. Appellees were not involved at the time the bankruptcy was going on and were not involved in whatever occurred prior to the bankruptcy closing. Any action that allegedly violated the automatic stay was taken by someone other than Appellees. To the extent Appellants dispute the amount of the debt, that issue is a contract law issue that can be brought in state court (or federal court if there is diversity). There is no claim for declaratory judgment to determine the amount of the debt in this adversary proceeding or before this Court. Appellees did not violate the automatic stay. The decision of the bankruptcy judge on this issue will be affirmed.
Violation of Confirmation Plan
Appellants have not identified a particular provision of the Plan that was violated by Appellees by attempting to collect this debt a year after the bankruptcy was closed. The Plan included the debt as a "long term debt." Appellants defaulted on the loan, and Appellees' attempts to collect on the note and second deed of trust did not violate the bankruptcy Plan.
Conclusion
For these reasons, the decisions of the Bankruptcy Court on Appellees' Motion to Dismiss and Motion to Reconsider and on Appellant's Motion for Default Judgment will be affirmed, by separate order.
Appellants' fourth and fifth claims, for violations of the Real Estate Settlement Procedures Act and the Truth in Lending Act, were dismissed for lack of jurisdiction, and Appellants did not appeal that ruling.
The Complaint in this adversary proceeding treats the two Appellees as one and indicates that they are mortgage service companies (Doc. No. 1 at 5).
"Clearly erroneous" has been defined as against the clear weight of the evidence or if the court is left with the definite and firm conviction that a mistake has been committed. In re Dino's, Inc.,
Neither the Shoemakes nor the Trustee filed a proof of claim regarding this second deed of trust. Neither did the Shoemakes appeal the disallowance of the proof of claim that was filed.
In other words, a creditor with a loan secured by a lien on a debtor's assets may ignore the bankruptcy proceeding and look to the lien for the satisfaction of the debt. Dewsnup v. Timm,
That statute provides that to the extent a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void unless the claim was disallowed only under section 502(b)(5) or 502(e) [not applicable here] or it is not an allowed secured claim due only to the failure of an entity to file a proof of such claim.
In re Monk,
The Shoemakes argue that disallowance of this claim was substantive because they disputed the claim. The Bankruptcy Court never ruled on that dispute, however.
The Shoemakes assert that Appellees "decided to participate" in the bankruptcy, but Appellees made no decision at all concerning the bankruptcy. They did not even become involved with this debt until November 16, 2016, almost a year after the Shoemakes' bankruptcy was completed and discharged (Doc. No. 5 at 33).
Reference
- Full Case Name
- Stephen Ray SHOEMAKE and Diann Mitchell Shoemake v. SN SERVICING CORP. and Seneca Mortgage Servicing, LLC
- Cited By
- 1 case
- Status
- Published