04-81962 | Bankr. S.D. Tex. | Nov 21, 2008
Case 04-81962 Document 94 Filed in TXSB on 11/21/08 Page 1 of 6
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE
ISABEL LUCIO, CASE NO. O4-8l962~G3-l3
Debtor,
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MEMORANDUM OPINION
The court has held a hearing on the "Debtor's Motion
for Review of Proposed Adjustment Of Monthly Mortqaqe Payment and
Request for Hearing" (Docket No. 85). The following are the
Findinqs of Fact and Conclusions of Law of the court. A separate
conforming Judgment will be entered. To the extent any of the
Findings of Fact are considered Conclusions of Law, they are
adopted as such. To the extent any of the Conclusions of Law are
considered Findings of Fact, they are adopted as such.
Findings of Fact
lsabel Lucio ("Debtor") filed a voluntary petition
under Chapter 13 of the Bankruptcy Code on September 29, 2004. A
Chapter 13 plan Was confirmed, by order entered July 18, 2005.
William E. Heitkamp ("Trustee") is the Chapter 13 trustee.
The confirmed Chapter 13 plan provided for Debtor to
pay $15,777.14 and $5,963.99 to EMC Mortgage ("EMC"), on two note
arrearage claims secured by Debtor's home. The plan sets forth
the value of Debtor‘s home at $58,300. (Docket No. 42).
Case 04-81962 Document 94 Filed in TXSB on 11/21/08 Page 2 of 6
Debtor and EMC have stipulated that EMC participated in
the confirmation of Debtor‘s plan.
Prior to the filing of the instant Chapter 13 case,
Debtor was married to Arturo Lucio. Arturo Lucio and Debtor
occupied the home. Debtor testified that, prior to the filing of
the petition in the instant case, Debtor and Arturo Lucio were
divorced. Debtor testified that she was awarded the home in the
divorce. Debtor testified that Arturo Lucio now resides in
Laredo, Texas.
The note is not in evidence. EMC contends that only
Arturo Lucio, and not Debtor, signed the note. Debtor testified
that she initialed the note. Debtor signed the deed of trust
with respect to the property. The deed of trust provides, in
pertinent part:
5. Borrower shall keep the improvements now existing
or hereafter erected on the Property insured...lf
Borrower failes to maintain any of the coverages
described above, Lender may obtain insurance coverage,
at Lender's option and Borrower's expense. Lender is
under no obligation to purchase any particular type or
amount of coverage, Therefore, such coverage shall
cover Lender, but might or might not protect Borrower,
Borrower's equity in the Property, or the contents of
the Property, against any risk, hazard or liability and
might provide greater or lesser coverage than was
previously in effect. Borrower acknowledges that the
cost of the insurance coverage so obtained might
significantly exceed the cost of coverage that Borrower
could have obtained. Any amounts disbursed by Lender
under this Section 5 shall become additional debt of
Borrower secured by this Security Instrument. These
amounts shall bear interest at the Note rate from the
date of disbursement and shall be payable, with such
interest, upon notice from Lender to Borrower
Case 04-81962 Document 94 Filed in TXSB on 11/21/08 Page 3 of 6
requesting payment.
The notice address shall be the Property Address unless
Borrower has designated a substitute notice address by
notice to Lender."
(Debtor‘s Exhibit E).
On November 20, 2006, Debtor filed a modification to
the plan. The modification provides for Debtor's regular monthly
mortgage payments to be made through the Chapter 13 Trustee. The
modification was approved, by order entered February 22, 2007.
The modification provides for a Chapter 13 plan payment of
$1,525.00 per month. (Docket No. 73).
Prior to August, 2007, Debtor and/or Arturo Lucio
maintained insurance on the property. Debtor testified that the
insurance policy Debtor purchased for August, 2006 through
August, 2007 cost $1,336.50. A disbursement in that amount is
reflected in EMC's escrow analysis. (Debtor's Exhibit A).
Debtor testified that, in 2007, Debtor did not purchase
insurance. She testified that EMC purchased insurance. The 2007
insurance policy purchased by EMC covered a value of $281,000.
The cost of the policy was $5,159.47. (Debtor's EXhibit D).
The parties have stipulated that EMC sent notices to
Arturo Lucio, in Laredo, TeXas, and that EMC did not send any
notices to the property address.
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Debtor testified that she believes the value of the
property is approximately $75,000.
On May 22, 2008, Trustee received from EMC a notice,
increasing Debtor's regular monthly mortgage payment from $712.92
to $1,773.56, based on EMC's escrow analysis. On July 14, 2008,
Trustee filed a notice of the increase, and calculated an
adjusted Chapter 13 plan payment of $2,648.75. (Docket No. 83).
ln the instant motion, Debtor seeks review of the
adjustment to Debtor's regular monthly mortgage payment.
Debtor has acquired insurance for August, 2008 through
August, 2009, at a cost of $726.00. The policy provides for a
limit of $80,000 to the insurance coverage, (Debtor's Exhibit
C).
After Debtor acquired insurance, EMC reduced the
regular monthly mortgage payment to $1,112.84, effective in
September, 2008. This amount includes $475.29 for principal and
interest, $174.16 for taxes, and $473.39 for an escrow shortage
arising from EMC's payment of the $5,159.47 premium on the 2007
insurance.
Conclusions of Law
The "Chapter 13 Trustee Procedures for Administration
of Home Mortgage Payments" adopted by the court on September 29,
2005, and amended on December 20, 2007, provide in pertinent
part:
Case 04-81962 Document 94 Filed in TXSB on 11/21/08 Page 5 of 6
4. lf the holder of a claim proposes to adjust the
amount of the regular contractual installment payment
due to a change in the interest rate, or for an escrow
for payment of insurance and taxes, the claimant shall
give written or electronic notice of the “adjusted
amount” to the debtor, debtor’s counsel, and the
trustee. The claimant may file a copy of the notice
with the clerk. The clerk will establish a CM/ECF Code
entitled “Notice by Mortgage Holder of Adjusted Payment
Amount” that should be utilized for the filing of the
notice. The claimant is responsible for assuring that
the notice is sent to debtor, debtor’s counsel and the
trustee. The debtor shall promptly provide the trustee
with a copy of any notice of an “adjusted amount” that
the debtor receives from a creditor while the case is
pending.
5. No post petition adjustment to the contractual
installment payments due on a claim dealt with pursuant
to § 1322(b)(5) shall be valid unless authorized by the
agreement upon which the claim is based, and unless
notice of the proposed adjustment is served on the
debtor, debtor’s attorney, and the chapter 13 trustee,
not later than 45 days prior to the date the adjusted
amount is due.
6. Upon receipt of a notice pursuant to the preceding
paragraph, the trustee shall be authorized to either
object to the claim, or disburse the adjusted amount,
without seeking a formal modification of the plan.
7. Upon receipt of a notice of an “adjusted amount”,
the trustee shall file with the Court, a notice of
disbursement of the “adjusted amount”, and shall serve
the notice on the debtor and the debtor’s attorney,
The debtor shall have 20 days from the date of service
of such notice to file an appropriate motion seeking
Court review of the proposed adjustment. Disbursements
of the adjusted amount are subject to refund/
disgorgement upon ruling by the Court.
Chapter 13 Trustee Procedures for Administration of Home Mortgage
Payments, available at http://www.txs.uscourts.gov/bankruptcy/
rulesformsproc/mort_proc.pdf.
Case 04-81962 Document 94 Filed in TXSB on 11/21/08 Page 6 of 6
In the instant case, EMC participated in confirmation
of the plan, and filed a proof of claim, Thus, EMC was aware of
Debtor's interest in the property. The deed of trust required
EMC to give notices at the property address. EMC failed to give
effective notice to Debtor as to the purchase of insurance
covering an amount more than four times the value of the
property.1 The court concludes that EMC may collect as an escrow
reimbursement for August, 2007 through August, 2008 only
$1,336.50, the same amount paid for insurance for August, 2006
through August, 2007,
Based on the foregoing, a separate conforming Judgment
will be entered.
Signed at Hous n, Texas on this
y /
day Of // W ,2@@8. %W
LETITIA Z. CLARK
UNITED STATES BANKRUPTCY JUDGE
lEMC's counsel argues that the insurance was purchased in
the same amount as the previous year. There is nothing in
evidence, other than EMC's self-serving correspondence, to
support this argument, or to explain how the amount for the 2007
insurance coverage was determined.
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