In re Nussa

• Citation: 565 B.R. 209
• Decision Date: 13 January 2017
• Docket Number: CASE NO. 15–02855 (ESL)
• Parties: IN RE: Wilfredo Enrique ARIAS NUSSA, Debtor
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Puerto Rico

565 B.R. 209

IN RE: Wilfredo Enrique ARIAS NUSSA, Debtor

CASE NO. 15–02855 (ESL)

United States Bankruptcy Court, D. Puerto Rico.

Signed January 13, 2017

565 B.R. 211

Carlos A. Ruiz Rodriguez, Caguas, PR, for Debtor.

Alejandro Oliveras Rivera, Miriam D. Salwen Acosta, San Juan, PR, for Trustee.

OPINION AND ORDER

Enrique S. Lamoutte, United States Bankruptcy Judge

This case is before the court upon the Motion for Summary Judgment (Docket No. 84) filed by creditor Ana Cristina Montaner Rodriguez (hereinafter referred to as "Ms. Montaner") and the Reply thereto filed by the Debtor (Docket No. 88). Also before the court is Joint Pre–Trial Report filed by the Debtor and Ms. Montaner (hereinafter referred to as the "Parties") (Docket No. 76). Ms. Montaner argues that she is a secured creditor in the amount of $122,700.00 (Claims Register, proof of claim # 10–3). Moreover, she sustains that the basis for her claim is the Debtor's (her ex-spouse) breach of the stipulations reached between the Parties as part of their divorce petition which were incorporated into the State Court's Judgment granting the Parties' consensual divorce petition. Ms. Montaner argues that her claim is secured by her pre-existing interest and/or equitable lien over the property located at La Floresta, Apt. 1042, Road 831, Bayamón, Puerto Rico (hereinafter referred to as the "Real Property") which the Parties purchased during their marriage. The Debtor in his Reply does not contest that Ms. Montaner has a claim secured by a judicial lien but instead argues that the judicial lien can be avoided pursuant to 11 U.S.C. § 522(f)(1) because it impairs his homestead exemption.

For the reasons stated below, the Motion for Summary Judgment (Docket No. 84) filed by Ms. Montaner is hereby denied.

Jurisdiction

The court has jurisdiction pursuant to 28 U.S.C. §§ 157(a) and 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).

Procedural Background

The Debtor filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code on April 17, 2015 (Docket No. 1). In Schedule A–Real Property , the Debtor listed the Real Property as having a current value as $142,500.00 (Docket No. 1, p. 23). The Real Property is encumbered by two mortgages for a total of $122,700 (Schedule D, Docket No. 1, p.28). The Debtor included Ms. Montaner as a co-debtor of mortgages secured by the Real Property in Schedule H but did not list her as a co-owner in Schedule A . (Docket No. 1, pp.23, 34). The deadline to file proof of claims for non-governmental entities was August, 17, 2015 (Docket No. 6). On June, 17, 2015, Ms. Montaner filed a proof of claim in the amount of $142,500.00 claiming $122,700.00 as secured (proof of claim # 10–1). The only evidence attached to proof of claim # 10–1 was a loan verification statement from Doral Bank.

On June, 18, 2015, Ms. Montaner, appearing pro se, filed an Explanatory Motion (Docket No. 12) summarizing the stipulations which she alleged Debtor did not comply with and the status of the State Court Case No. D DI2010–2452¹ . She also requested to be allowed "to continue legal efforts, and/or coordinating meetings with Arias Nussa and his legal representatives in order to market the [Real Property] and promote its sale." (Docket No. 12, p. 2). Ms. Montaner declared that the Debtor

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had breached the stipulations related to the Real Property which required him to make the monthly mortgage payments and to attempt to re-finance the loan secured by the Real Property. She also stated that in exchange for being released from the mortgage, she agreed to transfer her fifty percent ownership interest to the Debtor. On June 23, 2015, the court entered an Order granting the Debtor, the Chapter 13 trustee and all parties in interest fourteen days to reply and/or oppose the motion filed by Ms. Montaner at Docket No.12 (Docket No. 15).

On June 25, 2015, the Chapter 13 Trustee filed an objection to proof of claim # 10 by Ms. Montaner arguing that it fails to provide evidence of her security interest as required by FRBP 3001(d) (Docket No. 16). The Chapter 13 Trustee also argued that there was an inconsistency in the amounts claimed by Ms. Montaner. On June 30, 2015, the Chapter 13 Trustee requested an extension of twenty-one (21) after the Debtor files his response to Docket No. 12 to comply with the Order at Docket No. 15 (Docket No. 19) which was granted on July 9, 2015 (Docket No. 24). On July 3, 2015, the Debtor requested an extension of twenty eight (28) days to comply with the Order at Docket No. 15 (Docket No. 21) which was granted on July 7, 2015 (Docket No. 23).

Thereafter on July 23, 2015, the Chapter 13 Trustee filed an amended objection to proof of claim # 10 arguing that: (i) Ms. Montaner has not demonstrated her right to payment pursuant to Section 101(5)(A); and (ii) the amounts in the proof of claim are inconsistent (Docket No. 27). On July 31, 2015, the Debtor filed an objection to proof of claim # 10 adopting the arguments made by the Chapter 13 Trustee and declaring that the proof of claim is not supported by proper evidence (Docket No. 31).

On August 3, 2015, the Debtor filed Debtor's Reply and Opposition to Explanatory Motion Filed by Claimant Ana Cristina Montaner arguing that Ms. Montaner is requesting relief which cannot be granted by the court as she "is not a creditor but a co-debtor with Debtor" (Docket No. 32, p.1, ¶ 5). In addition, the Debtor declares that through his bankruptcy and Chapter 13 Plan he "will make the necessary payments to the mortgage loan and eventually, after achieving a better economic position, refinance the property in order to release Ms. Montaner as a co-debtor in the Mortgage loan" (Docket No. 32, p.2, ¶ 9). On August 24, 2015, the Chapter 13 Trustee filed the Trustee's Motion to Comply with Order Dkt. 24 arguing that: (i) Ms. Montaner would have to seek relief from the automatic stay to continue the state court actions; (ii) since Ms. Montaner "does not allege to have an ownership right over the [Real Property], thus, it is not clear why she has a right to demand the sale of the property"; and (iii) it is premature to state his position as to the refinancing of the mortgage loans because the Debtor has not filed a motion under Section 364 (Docket No. 42). On August 31, 2015, the court entered an Order scheduling a hearing for October 28, 2015, to consider the Explanatory Motion filed by Ms. Montaner and the Debtor and Chapter 13 Trustee's replies thereto (Docket No. 45).

On September 4, 2015, the court entered an Order granting as unopposed the Chapter 13 Trustee's amended objection to proof of claim # 10 and the Debtor's objection to proof of claim # 10 (Docket No. 47). On October 14, 2015² , Ms. Montaner filed

565 B.R. 213

an amended proof of claim in the amount of $122,700 claiming that it is fully secured (proof of claim # 10–2). In addition, she stated that the basis for the claim is the divorce decree in the State Court Case No. DDI2010–2452 and declared that the basis for the perfection was a judicial lien. Moreover, she attached the Judgment and the Divorce Petition which includes the stipulations reached by the Parties as part of the divorce proceedings. Subsequently, on October 27, 2015, Ms. Montaner filed a third amended proof of claim which included an Amended Attachment to Amended Proof of Claim 10 (proof of claim # 10–3).

On October 28, 2015, during the hearing held on confirmation and other contested matters, the court granted Ms. Montaner fourteen (14) days to move for reconsideration of the Order disallowing proof of claim # 10 (Docket Nos. 55 (Audio File ) and 56 (Minute Entry )).

On November 11, 2015, Ms. Montaner filed a Motion for Reconsideration pursuant to Section 502(j) and FRBP 3008 arguing that: (i) Congress has recognized that "in the course of a separation or divorce spouses could incur in new debts that are claimable against a former spouse in a bankruptcy proceeding" and that those debts were codified in Sections 523(a)(5) and 523(a)(15); (ii) "a former spouse has a claim based on an obligation originated in accordance to nonbankruptcy law that was incurred by a debtor as part of a divorce proceeding or marital separation settlement" and; (iii) that "a claim exists also, if the claimant has a remedy under nonbankruptcy law to execute and enforce its claim, such as requesting the state court to held [sic] a the noncompliance party in contempt." (Docket No. 58). Ms. Montaner cites several cases including but not limited to In re Wodark, 425 B.R. 834 (10th Cir. BAP (Colo.) 2010) ; In re Gibson, 219 B.R. 195 (6th Cir. BAP 1998) ; In re Brown, No. 11-19048-JNF, 2012 WL 10191, at *1 (Bankr. D. Mass. Jan. 3, 2012) ; and In re Burckhalter, 389 B.R. 185, 186 (Bankr. D. Colo. 2008). She sustains that during the course of the divorce proceeding the Debtor incurred in four new obligations: (1) to make the monthly mortgage payments in the amount of $914.13, (2) to perform all necessary transactions with the mortgagor to release her from the mortgage within one year, (3) to inform the State Court of all transactions and efforts made to release her from the mortgage, and (4) to "pay and release Ms. Montaner of, all joint...