Bank of N.Y. Mellon v. Oldemeyer
| Decision Date | 09 October 2019 |
| Docket Number | 19-348 |
| Parties | The BANK OF NEW YORK MELLON fka the Bank of New York, as Trustee (CWABS 2006-BC5) v. Michael E. OLDEMEYER a/k/a Michael Oldemeyer and Kristi A. Oldemeyer a/k/a Kristi Oldemeyer |
| Court | Court of Appeal of Louisiana — District of US |
282 So.3d 1098
The BANK OF NEW YORK MELLON fka the Bank of New York, as Trustee (CWABS 2006-BC5)
v.
Michael E. OLDEMEYER a/k/a Michael Oldemeyer and Kristi A. Oldemeyer a/k/a Kristi Oldemeyer
19-348
Court of Appeal of Louisiana, Third Circuit.
October 9, 2019
Rehearing Denied December 18, 2019
Kent B. Payne, 321 N. Vermont Street, Suite 207, Covington, Louisiana 70433, (985) 276-9731, COUNSEL FOR DEFENDANT/RELATOR: Kristi Fair formerly known as Kristi Oldemeyer
Ronnie J. Berthelot, The Law Offices of Herschel C. Adcock, Jr., L.L.C., 13541 Tigerbend Road, Baton Rouge, Louisiana 70817, (225) 756-0370, COUNSEL FOR PLAINTIFF/RESPONDENT: The Bank of New York Melon formerly known as The Bank of New York, as Trustee
Jason O. Methvin, 211 South Drive, Post Office Box 2331, Natchitoches, Louisiana 71457, (318) 352-7272, Curator ad hoc for Michael E. Oldemeyer
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
PERRY, Judge.
Relator/Defendant, Kristi Fair, formerly known as Kristi Oldemeyer ("Kristi"),
seeks supervisory review of the trial court's judgment which denied her peremptory exception of prescription. For the following reasons, we grant the writ and make it peremptory.
STATEMENT OF THE CASE
This litigation began on July 30, 2018, when Respondent/Plaintiff, the Bank of New York Mellon, formerly known as the Bank of New York (hereinafter referred to as "the Bank"), filed a "Petition for Mortgage Foreclosure by Executory Process with Appraisal" in connection to Kristi's execution of a promissory note on July 20, 2006. The question presented in this matter largely concerns whether certain filings within a Chapter 13 bankruptcy proceeding Kristi's ex-husband, Michael Oldemeyer, instituted, constitutes an "acknowledgment" of the debt sufficient to interrupt the five-year prescriptive period applicable to actions to enforce promissory notes.
PROCEDURAL HISTORY
On July 20, 2006, Michael and Kristi Oldemeyer, while married, made and executed a promissory note in the amount of $100,000.00, payable in monthly installments beginning September 1, 2006, and continuing through August 1, 2036. Both Michael and Kristi signed the note as "Borrower," with Home Loan Center, Inc. d/b/a LendingTree Loans, the original note holder, being identified as "Lender." The promissory note contained an acceleration clause providing that in the event of default, the holder of the note may require the borrower to immediately pay the full amount of the principal owed. It further provided that "[i]f more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed." The promissory note was secured by a mortgage on the couple's property, located at 2143 Johnson Chute Road in Natchitoches, Louisiana.
On January 14, 2010, the Oldemeyers1 received a "Notice of Intent to Accelerate" from the new note holder, Bank of America Home Loans,2 after failing to make their monthly payment on December 1, 2009. Specifically, the notice provided: "If the default is not cured on or before February 13, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time ." (First alteration in original.) No further payments were made by either Michael or Kristi, leaving an unpaid balance of $96,454.40 on the promissory note.
On December 29, 2011, Michael (now presumably divorced from Kristi) filed a voluntary petition with the Western District of Louisiana to institute a Chapter 13 bankruptcy proceeding.3 Therein, on
Schedule F ("Creditors Holding Unsecured Nonpriority Claims"), Michael listed Bank of America Home Loans as a creditor for an "obliation [sic] for home located at 2143 Johnson Chute Rd., Natchitoches, LA (ownned [sic] by ex-wife)" in the amounts of $96,769.40 and $18,235.00. However, on Schedule H ("Codebtors"), Michael checked a box stating that he "has no codebtors." In any event, Michael listed "None" in Schedule A ("Real Property"), under which he was ordered to "list all real property[.]" In the accompanying "Bankruptcy Rule 3015(d) Summary and Notice of a Chapter 13 Plan of Repayment" ("plan"), Michael agreed to make monthly payments (via payroll deduction) of $874.00 for an estimated term of sixty months beginning January 28, 2012. However, the plan's cover page specified that the only amount to be repaid under the plan was attributable to "Non-Priority Unsecured Creditors," the sum of which was stated as "$46,182.80 (of which $11,333.00 will be paid to student loans)."4 Notably, under Section I(C) of the plan, entitled, "DEBTOR WILL PAY THESE CREDITORS DIRECTLY OR SATISFY CLAIM BY SURRENDER OF COLLATERAL ", neither the creditor of the subject property, Bank of America Home Loans (or any transferees of the note), nor the mortgage itself was listed by Michael in the corresponding sections.5 In fact, Michael was first asked under Subsection I(C)(1) whether he, as the debtor, "WILL PAY MORTGAGE(S) ON PRINCIPAL RESIDENCE/REAL PROPERTY, " to which he responded "NONE" under the space provided to list any creditors, and left blank the spaces provided to detail the corresponding "Collateral," "Estimated Monthly Payment," and a beginning date for payment. Further, under Subsection I(C)(3), he was asked to indicate whether "AS SOON AS POSSIBLE AFTER PLAN CONFIRMATION DATE, [HE] WILL SURRENDER PROPERTY TO SECURED CREDITOR TO SATISFY CREDITOR'S SECURED CLAIM, " to which he, again, responded "NONE" as to any creditor, leaving blank the spaces provided to detail the "Collateral/Property to be Surrendered" and "Terms of Surrender." The only reference to the subject debt was featured on the plan's cover page, as follows: "Special Provisions and/or Changes to Sections III, IV, or V of the Model Plan : Upon confirmation of this plan, the in rem co-debtor stay shall be lifted with regard to the claim of Bank of America . No further motion to lift the stay shall be required."
A hearing to confirm the plan was then ordered by the bankruptcy court on March 6, 2012, and the Bank alleges to have appeared as a secured creditor and successor of Bank of America Home Loans, over no objection of Michael. On March 20, 2012, the plan was confirmed by an order of the court, which thereby modified the term for payment to forty-five months from the initial term of sixty months. The plan remained unchanged in all other aspects, and again included the special provision inscription noted above.
Pursuant to 11 U.S.C. § 362, Michael's bankruptcy filing created a bankruptcy estate and automatic stay which effectively
prohibited any of Michael's creditors from pursuing him (in personam) and/or his property (in rem) during the proceedings.6 Moreover, under 11 U.S.C. § 1301, this automatic stay extends to protect any non-filing co-debtor that is liable on such debt with the filing debtor during the pendency of the proceedings, often referred to as a "co-debtor stay." Thus, it is undisputed between the parties that an automatic stay arose as of the date of the bankruptcy filing, or December 29, 2011.
On April 29, 2014, the Bank, as trustee,7 moved to lift the stay as to both "the Debtor," Michael, and "the non-filing Co-Debtor," Kristi, citing irreparable damage from its inability to foreclose on the property. Interestingly, the Bank alleged therein that "[t]he Debtor's confirmed plan provides for the surrender of the property."
On May 20, 2014, the bankruptcy court ordered the termination of the automatic stay, thereby allowing the Bank to foreclose or otherwise exercise its security interest with respect to the property. The court also ordered (emphasis added): "The above property is hereby abandoned as property of the above bankruptcy estate [.]"
On April 5, 2016, the court issued an order granting Michael a discharge pursuant to 11 U.S.C. § 1328(a).8 Having fully administered the bankruptcy proceedings, the court then ordered the discharge of the trustee in the matter on May 27, 2016.9
On July 30, 2018, the Bank filed a "Petition for Mortgage Foreclosure by Executory Process with Appraisal" before the trial court. The Bank asserted that the unpaid principal balance on the promissory note amounted to $96,454.40, and prayed that the court order the issuance of a writ of seizure and sale as to the mortgaged property to satisfy the debt. The trial court ordered the writ on August 9, 2018, thereby directing the Natchitoches Parish Sheriff to sell the subject property at public auction.
On September 18, 2018, Kristi filed a "Petition for Injunction to Arrest Seizure and Sale and for Expedited Hearing." She asserted entitlement to an injunction, without
bond, "because the obligation underlying the mortgage sued upon herein has been extinguished by prescription, [and] the order directing the issuance of the writ of seizure and sale was rendered without sufficient authentic evidence having been submitted...
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