<< 1 2 >>In re Schmaling, Case No. 11-32516 (December 2015) -- Judge B.E. Hanan
Wilmington Savings Fund Society, FSB, a mortgage creditor of the chapter 13 debtors, sought relief from the automatic stay and abandonment. The debtors did not oppose the motion, so Wilmington filed an affidavit of no objection and proposed order in accordance with Local Rule 9014.1. While granting Wilmington relief from the automatic stay and abandonment as to the subject property was appropriate, Wilmington's proposed order requested that its claim be deemed withdrawn so it could avoid the requirements of Federal Rule of Bankruptcy Procedure 3002.1 (which requires mortgage creditors to provide chapter 13 debtors, who propose a "cure and maintain" on their principal residence under 11 U.S.C. section 1322(b)(5), notice of mortgage payment changes and a statement about whether the debtors cured their default and whether they are otherwise current with their mortgage payments upon plan completion), and also requested an award of attorneys' fees. The court granted Wilmington relief from the automatic stay and abandonment and deemed its claim withdrawn, but explained that without a timely-filed proof of claim in the claims register, an award of attorneys' fees was not appropriate.
In re Guerrero, Case No. 15-26746, 536 B.R. 817 (September 2015) -- Judge B.E. Hanan
Creditor and debtor were, respectively, vendor and vendee of the debtor's principal residence pursuant to a land contract. When the land contract matured, the debtor failed to make a “balloon” payment of the outstanding balance as required by the contract, and the creditor moved for strict foreclosure in state court. After the debtor filed her bankruptcy case, the creditor moved for relief from the automatic stay under sections 362(d)(1) and (2), and from the codebtor stay as to the debtor's non-filing spouse under section 1301(c), to continue the strict foreclosure action. The creditor argued that she was entitled to relief because: (1) she would be unable to pay off a second mortgage that her husband and his ex-wife took out on the creditor's own home if the debtor were allowed to spread the balloon payment over the life of her chapter 13 plan; (2) the land contract was either an executory contract that the debtor was required to accept in its entirety, or a security interest that the debtor could not modify pursuant to section 1322(b)(2); and (3) the debtor had no equity in the property until completion of the land contract. The court denied the motion. The court first looked to Wisconsin law to conclude that the land contract was a security device and not an executory contract within the meaning of the Code. The court then found that the creditor was not entitled to relief because: (1) the creditor failed to establish a decline in the value of the collateral; (2) the debtor was authorized to pay off the balloon payment through her plan under section 1322(c)(2); (3) the creditor failed to prove that the debtor lacked equity in the property; and (4) mere delay in payment does not constitute irreparable harm sufficient to lift the codebtor stay.
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