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509 B.R. 422
Bankr. D. Conn.
2014
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Background

  • Debtors filed Chapter 13 petition on June 27, 2013 seeking to cure a mortgage arrearage on their principal residence.
  • Debtors’ First Amended Chapter 13 Plan (Aug 14, 2013) proposed $1,300 monthly payments for 60 months predominantly toward a $64,708.50 arrearage with Wells Fargo as mortgagee.
  • Wells Fargo objected to confirmation on grounds tied to modification of mortgage rights under 1322(b)(2) to bar enforcement of a due‑on‑sale clause.
  • Debtors contended the due‑on‑sale clause was conditional, not automatic, and that acceleration/notice issues and waiver arguments bar enforcement.
  • Wells Fargo filed a motion for summary judgment (Jan 2, 2014); the court ultimately denied confirmation, overruled the claim objection, and denied the motion for summary judgment.
  • The court’s decision rests on whether the debtor can modify Wells Fargo’s rights under the due‑on‑sale clause in the principal residence Mortgage described in the record.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Can a due‑on‑sale clause be modified in a Chapter 13 plan under 1322(b)(2)? Español argues the clause can be cured/waived via plan. Wells Fargo contends 1322(b)(2) bars modification of rights attached to the debt on the principal residence. No; modification is barred under 1322(b)(2).
Did Wells Fargo waive the right to assert a default under the clause? Debtors claim waiver due to delay and notice issues. Wells Fargo did not waive; language and conduct do not show intentional relinquishment. No waiver; waiver not shown.
Should confirmation be sustained given the above, including objections to the claim and summary judgment? Plan seeks to modify default provisions to cure arrears over time. Plan cannot modify the lender’s rights under 1322(b)(2). Confirmation denied; claim objection overruled; motion for summary judgment denied.

Key Cases Cited

  • Nobelman v. American Savings Bank, 508 U.S. 324 (U.S. 1993) (rights referenced in 1322(b)(2) are those in mortgage instruments)
  • Johnson v. Home State Bank, 501 U.S. 78 (U.S. 1991) (per‑sonam vs in rem treatment for discharged obligations)
  • In re Martin, 176 B.R. 675 (Bankr.D.Conn.1995) (modification of rights barred; persuasive authority)
  • In re Mullin, 433 B.R. 1 (Bankr.S.D. Tex.2010) (due‑on‑sale clauses and 1322(b)(2) limitations discussed)
  • In re Tewell, 355 B.R. 674 (Bankr.N.D.Ill.2006) (modification of mortgage rights under 1322(b)(2) questioned)
  • Olean v. Treglia, 190 Conn. 756 (Conn. 1983) (state law enforceability of restrictive covenants and related clauses)
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Case Details

Case Name: In re Espanol
Court Name: United States Bankruptcy Court, D. Connecticut
Date Published: Apr 22, 2014
Citations: 509 B.R. 422; 2014 Bankr. LEXIS 1789; 2014 WL 1612393; No. 13-21318 (ASD)
Docket Number: No. 13-21318 (ASD)
Court Abbreviation: Bankr. D. Conn.
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