In re Laskowski

• Decision Date: 27 February 2008
• Docket Number: Adversary No. 07-3047.,Bankruptcy No. 01-35157 HCD.
• Citation: In re Laskowski, 384 B.R. 518 (Bankr. N.D. Ind. 2008)
• Parties: In the Matter of Dale Thomas LASKOWSKI, Debtor. Debra L. Miller, Trustee, and Dale Thomas Laskowski, Plaintiffs, v. Ameriquest Mortgage Company, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Indiana

384 B.R. 518

In the Matter of Dale Thomas LASKOWSKI, DebtorDebra L. Miller, Trustee, and Dale Thomas Laskowski, Plaintiffs, v.Ameriquest Mortgage Company, Defendant.

Bankruptcy No. 01-35157 HCD.

Adversary No. 07-3047.

United States Bankruptcy Court, N.D. Indiana, South Bend Division.

February 27, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Debra L. Miller, South Bend, IN, Standing Chapter 13Trustee.

Dale Thomas Laskowski, South Bend, IN, pro se.

Jeffrey K. Garfinkle, Esq., Buchalter Nemer, P.C., Irvine, CA, and R. William Jonas, Jr., Esq., Hammerschmidt, Amaral & Jonas, South Bend, IN, for Defendant.

MEMORANDUM OF DECISION

HARRY C. DEES, JR., Chief Judge.

This adversary proceeding was initiated by the Complaint Seeking Damages in Core Adversary Proceeding ("Complaint") filed by Debra L. Miller, Chapter 13Trustee("Trustee"), and Dale Thomas Laskowski, chapter 13 debtor ("debtor"), against Ameriquest Mortgage Company("Ameriquest"), defendant herein.Presently before the court is Ameriquest's Motion to Dismiss.After considering the motion, briefs, memoranda and responses of the parties, the court took the matter under advisement.For the reasons that follow, the court denies Ameriquest's Motion to Dismiss,

Jurisdiction

Pursuant to 28 U.S.C. § 157(a) and Northern District of Indiana Local Rule 200. 1, the United States District Court for the Northern District of Indiana has referred this case to this court for hearing and determination.After reviewing the record, the court determines that the matter before it is a core proceeding within the meaning of § 157(b)(2)(A) over which the court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(1)and1334.This entry shall serve as findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52, made applicable in this proceeding by Federal Rules of Bankruptcy Procedure 7052 and 9014.Any conclusion of law more properly classified as a factual finding shall be deemed a fact, and any finding of fact more properly classified as a legal conclusion shall be deemed a conclusion of law.

Background

On October 19, 2000, Dale Thomas Laskowski purchased a home on Brookfield Street in South Bend, Indiana.Ameriquest holds the mortgage and note in the amount of $44,250.00, plus interest at an adjustable rate (beginning at 10.4%).SeeR. 1, Ex.A (Mortgage, Adjustable Rate Note, Adjustable Rate Rider).After not making the monthly payments in August, September, and October 2001, the debtor filed a voluntary chapter 13 petition on October 16, 2001.Ameriquest submitted a proof of claim stating that the principal balance on the mortgage was $44,100.88 and that the pre-ffetition arrearage owed on the mortgage was $1,505.64.Seeid., Ex. A (Proof of Claim).

The debtor filed his chapter 13 plan on November 1, 2001.The Plan requires the Trustee to make monthly payments to Ameriquest in the amount of $401.47 (to cover the mortgage principal and interest) and $86.72 (to place in escrow for taxes and insurance).It also provides for the curing of pre-petition arrearages.Article III of the Plan states:

If, during the life of this Plan, such payments must be modified due to a change in escrow reserve requirements, the creditor shall provide notice thereof to the debtor and/or Standing Chapter 13Trustee and/or counsel for the debtor.Thereafter, absent any objection made within thirty (30) days of such notice, the Trustee shall modify disbursement to the creditor.

R. 1, ¶ 32(quoting Plan provision).No creditor objected to confirmation of the Plan.It was confirmed by special order on July 17, 2002.

The Trustee stated in the Complaint that her first post-petition adequate protection payment, made January 31, 2002, was sufficient to pay in full the November 2001, December 2001, January 2002, and February 2002 mortgage payments, making the debtor current on his mortgage.SeeR. 1, ¶ 36.On August 1, 2002, the Trustee completed paying the pre-petition mortgage arrearage claim in full.Seeid.,¶ 38.

The Trustee reported numerous communications between Ameriquest and her office.On November 10, 2005, and May 3, 2006, for example, her office was notified when the adjustable rate mortgage payment changed.Seeid.,¶¶ 40, 42.On another occasion, Ameriquest employee Saline notified the Trustee's office that the mortgage was overpaid.On October 20, 2004, Saline advised the Trustee's office that the next mortgage payment was due January 1, 2005, and that Ameriquest would return the overpayment being held in a suspense account.On January 10, 2005, the Trustee's office received a refund from Ameriquest of $2,868.37.Seeid.,¶¶ 39, 41.

In October 2006, the Trustee's office determined that the debtor's chapter 13 Plan payments had been completed and that there were sufficient funds to pay all unsecured creditors in full.The Trustee's office followed its standard procedure of verifying that the mortgage was current and of resolving any outstanding debts for fees, costs, or other escrowed amounts.By certified mail, it sent a Qualified Written Request ("QWR") to Ameriquest's bankruptcy department headquarters in Orange, California, to obtain a final accounting.¹Although Rose Karlsson of Ameriquest signed for the certified, return receipt QWR letter on October 13, 2006, Ameriquest neither responded to acknowledge receipt of the correspondence within 20 days nor provided any explanation of the debtor's account questions within 60 days, as required under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(e).²Seeid.,¶¶ 43-50.

Six months later, on April 10, 2007, the Trustee's office notified Ameriquest by email that it had failed to provide the information requested in the QWR.On April 20, 2007, William Smith, Bankruptcy Specialist for Ameriquest, responded by email that its records showed $519.00 in outstanding postpetition fees, costs, or advances; $3,874.15 owed in the escrow account; and a total of $3,953.10 due to bring the account current.Smith also provided a full history of the changes in mortgage payments.Seeid.,¶¶ 51-52.When the Trustee's office requested specific information concerning the fees, taxes, and insurance paid from the escrow account, Smith sent it.The Trustee then asked why there was outstanding escrow and why the monthly escrow amounts were not changed during the course of the bankruptcy proceeding.She provided Smith with her office's disbursement ledger and requested the company's procedures in handling escrow accounts.

On May 8, 2007, Ameriquest's Bankruptcy Specialist Smith responded that he would be filing an administrative claim for the post-petition items.Seeid.,¶¶ 53-57.Smith also stated: "With respect to the escrow shortage on the Laskowski's account, it is AMC Mortgage Services policy not to analyze accounts when in Bankruptcy as to prevent double dipping."Seeid.,¶ 157(quoting Ex. L).The Trustee then prepared an excel spread sheet demonstrating the Trustee's payments to Ameriquest on behalf of the debtor: the principal and interest due, the amounts refunded to the Trustee, the amounts contributed monthly to escrow, and the payments of taxes, insurance and other costs listed in Smith's email.Seeid.,¶ 58.On May 9, 2007, the Trustee filed the Complaint initiating this adversary proceeding.

The Complaint alleged that Ameriquest is a "servicer of a federally related mortgage loan" under RESPA, see12 U.S.C. § 2602, and that it violated RESPA by failing to acknowledge the QWR within 20 business days of receipt and by tailing to provide the information requested by the Trustee's office within 60 business days of receipt.See12 U.S.C. § 2605(e)(1)(A);§ 2605(e)(l)(B)(2);12 U.S.C. Regulation X, 24 CFR § 3500.21.³The Complaint charged that the defendant was liable for actual damages, costs and reasonable attorney fees.It also alleged that the delays caused the debtor to remain in bankruptcy, unable to refinance his house, obtain credit, obtain a discharge, or disburse the funds held by the Trustee.Furthermore, it claimed that the delays caused the Trustee and her staff hours of additional work.⁴Seeid.,¶¶ 59-65.

The Complaint's Second Claim alleged that Ameriquest, by not accounting for the debtor's post-petition payments, failed to abide by the terms of the debtor's confirmed chapter 13 plan pursuant to 11 U.S.C. § 1322(b)(5).Seeid.,¶¶ 66-75.Its Third Claim charged that Ameriquest failed to conduct an annual escrow account analysis and to notify the debtor if a surplus, shortage, or deficiency existed in the escrow account, as required under RESPA and under the mortgage contract between Ameriquest and the debtor-borrower.Seeid.,¶ 81.In its Fourth Claim for relief, a breach of contract charge, the Complaint alleged that Ameriquest breached the implied covenant of good faith and fair dealing by failing to account for and to credit the Trustee's timely payments on the debtor's mortgage.Seeid.,¶¶ 85-91.

On July 9, 2007, Ameriquest filed a Motion to Dismiss pursuant to Federal Rule of Bankruptcy Procedure 7012andFederal Rule of Civil Procedure 12(b)(6).SeeR. 9.It pointed out in its memorandum in support of the motion that the debtor, a named plaintiff in this lawsuit, neither signed the complaint nor communicated with Ameriquest.The defendant alleged that the Trustee had no legal authority to represent the debtor in this matter.`It also asserted that the Trustee incorrectly believed that Ameriquest was not entitled to hold a post-petition claim for taxes and insurance that it paid when the debtor failed to do so.

The defendant stated that the debtor owed three outstanding loan payments and two late charges in the amount of $1,505.64.Ameriquest explained that, under the terms of the loan documents, the debtor also remained responsible for paying the property taxes and insurance.SeeR. 10at 2-3(citingMtg. §§ 4, 5).According to Ameriquest,...