Case Law
Decision Date
11
Apr 2019
Name
IN RE Stacey M. VAN PELT, Debtor
Attorney(s)
Michael J. Gartland, DelCotto Law Group PLLC, Ryan R. Atkinson, J.D. Kermode, Lexington, KY, for Debtor., Gregory R. Schaaf, Bankruptcy Judge This matter is before the Court on the Debtor's Motion to Enforce Discharge Injunction Against JP Morgan Chase Bank, N.A. and for an Award of Actual Damages, Mild Non-Compensatory Damages, and Reasonable Attorneys' Fees [ECF No. 52] and related briefing [ECF Nos. 57 & 58]. A hearing was held on March 7, 2019. [ECF Nos. 59-61.] The matter was taken under submission. For the reasons stated herein, the Debtor's Motion is granted., The Trustee filed her Notice of Allowance of Claims on September 26, 2013. [ECF No. 28.] The Trustee's Notice "gives notice to the creditors listed below ... of the allowance of claims as follows." [Id. ] Chase is a listed creditor with a mortgage and a prepetition arrearage claim. The Trustee's Notice also indicates "Surrendered" for the Chase obligation., To the extent the allowance of claims contradicts the treatment of any claim in the confirmed plan, this Notice shall constitute a modification of the plan pursuant to 11 U.S.C. 1329. Any objection must be filed within 30 days from the date of this Notice, served on the trustee, and set for hearing., Approximately 2 years later, Chase filed a Motion for Approval of Loan Modification Agreement. [ECF No. 37.] The Modification Motion sought permission to "enter into a Loan Modification with the Debtor." The Modification Motion then represented that Chase had approved the Debtor for a loan modification that would recapitalize the loan, lower the monthly payments, and eliminate arrearage payments by the Trustee. The Modification Motion further indicated the Debtor could file an amended plan and/or a motion to modify the plan, if necessary., The case was closed on May 29, 2015 and reopened on February 25, 2019. [ECF Nos. 50 & 53.] The Debtor filed the underlying Motion for Contempt alleging Chase violated the discharge injunction by incorrectly informing credit reporting agencies that the Debtor is personally liable for the debt owed to Chase and refusing to correct its reporting. [ECF No. 52.] See also 11 U.S.C. § 524(a)(2). The Debtor seeks actual damages and mild punitive damages., Chase filed its Response to Motion to Enforce Discharge Injunction and for Other Relief on March 5, 2019. [ECF No. 57.] It does not dispute the Debtor's factual allegations. Instead, Chase argues placement of its claim in Section II.C of the plan "makes absolutely no provision for payment or other treatment of Chase's claim or result in a discharge." [Id. at 5.] Chase also argues that the Debtor's failure to oppose its Modification Motion supports its position that its debt is not discharged. [Id. ], A hearing was held on March 7, 2019. Counsel for Chase stated at the hearing that this is a matter of plan interpretation and Chase does not seek an opportunity to present evidence. The matter was taken under submission and is ready for decision. Upon review of the record and arguments of counsel, it is found that the debt owed to Chase was provided for in the plan and the Debtor's personal liability on the debt was discharged. 11 U.S.C. § 1328(a) and (c). The record also confirms Chase knew of the bankruptcy discharge and willfully violated the discharge injunction by refusing to correct its inaccurate reporting of the debt as a personal liability., A. The Confirmed Plan Provides for Chase's Claim So the Debtor's Personal Liability Was Discharged., Chase argues that listing its claim in Section II.C is insufficient to provide for the claim because the Debtor does not indicate to whom she is surrendering the property, the mechanism for surrender, or that surrender is in payment of its claim. [ECF No. 57 at 4-5.] Listing the claim in Section II.C of the plan is enough to provide for the claim and obligated the Court to confirm the plan as instructed in § 1325(a)., To determine whether a claim is provided for by the plan, the relevant inquiry is whether a plan " 'makes a provision' for, 'deals with,' or even 'refers to' a claim." Rake v. Wade , 508 U.S. 464, 474-75, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993) ; Nicholas v. Oren (In re Nicholas) , 457 B.R. 202, 222 (Bankr. E.D.N.Y. 2011). Agreeing to surrender collateral pursuant to § 1325(a)(5)(C) is sufficient to provide for a claim. In re Sharak , 571 B.R. 13, 19 (Bankr. N.D. N.Y. 2017). See also Santander Consumer USA, Inc., v. Brown (In re Brown) , 746 F.3d 1236, 1241 (11th Cir. 2014) (surrender satisfies the creditor's allowed secured claim); In re Eubanks , 219 B.R. 468, 473 (6th Cir. BAP 1998) (" Section 1325(a)(5)(C) permits a Chapter 13 debtor to satisfy an 'allowed secured claim' by surrendering the property securing the claim.")., The concept of surrender lets the creditor know it may exercise its state-law lien rights if desired. See In re Keokuk , Case No. 17-30370, 2018 WL 6172032 at *2 (Bankr. E.D. Ky. Nov. 20, 2018) (surrender is generally understood as a relinquishment of rights in the collateral); see also In re Tosi , 546 B.R. 487, 492 (Bankr. D. Mass. 2016) (it is well-settled that surrender means the debtor will make the collateral available to the secured creditor, so the secured creditor can exercise its state law rights if it so chooses); Matter of Mattera , 203 B.R. 565, 572 (Bankr. D.N.J. 1997) (formal action to accomplish surrender is not necessary to provide for a secured claim); 8 COLLIER ON BANKRUPTCY § 1325.06[4] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2018) ("Surrender in th[e] context [of section 1325(a)(5)(C) ] means simply the relinquishment of any rights in the collateral."). The additional conditions Chase seeks are not required., The plan provided for Chase's claim by including it in Section II.C. The Debtor successfully completed her plan and a discharge order was entered on April 21, 2015. [ECF No. 48.] The Debtor's personal liability on the debt owed to Chase was discharged. 11 U.S.C. § 1328(a) and (c) ; see also Johnson v. Home State Bank , 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (a bankruptcy discharge extinguishes personal liability)., Counsel for Chase suggested the lender did not believe its claim was provided for by the plan, but the record refutes this assertion. Chase was served with the proposed plan [ECF No. 2] and legal counsel entered an appearance on Chase's behalf shortly thereafter [ECF No. 10]., Chase was also served a copy of the Trustee's Notice and the Trustee's Final Report, both indicating her understanding that Chase's claim was provided for by the plan. [ECF Nos. 28 & 47.] Again, Chase did not object or otherwise raise an issue.
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