Jackson v. Ing Bank, FSB, Capital One, N.A., BAP NO. MB 16-046
| Decision Date | 23 August 2017 |
| Docket Number | BAP NO. MB 16-046,Adversary Proceeding No. 13-01064-MSH,Bankruptcy Case No. 10-11716-MSH |
| Parties | KIMMY R. JACKSON, a/k/a Kimmy R. Jackson-Lupoli, a/k/a Kimmy R. Lupoli, Debtor. KIMMY RENE JACKSON, Plaintiff-Appellant, v. ING BANK, FSB, CAPITAL ONE, N.A., BANK OF AMERICA, N.A., HARMON LAW OFFICES, P.C., and PORTNOY & GREENE, P.C., Defendants-Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, First Circuit |
NOT FOR PUBLICATION
Appeal from the United States Bankruptcy Court for the District of Massachusetts
(Hon. Melvin S. Hoffman, U.S. Bankruptcy Judge)
Before Deasy, Cary, and Fagone, United States Bankruptcy Appellate Panel Judges.
David G. Baker, Esq., on brief for Plaintiff-Appellant.
David Himelfarb, Esq., on brief for Defendants-Appellees, Capital One, N.A. and ING Bank, FSB.
Cody J. Cocanig, Esq., on brief for Defendant-Appellee, Bank of America, N.A.
Robert M. Mendillo, Esq., and Andrea V. Lasker, Esq., on brief for Defendant-Appellee, Harmon Law Offices, P.C.
Darren J. Rillovick, Esq., on brief for Defendant-Appellee, Portnoy & Greene, P.C. Fagone, U.S. Bankruptcy Appellate Panel Judge.
With a single notice of appeal, Kimmy Rene Jackson ("Jackson") attempts to appeal from at least thirteen orders of the bankruptcy court, a "transcript," and unspecified "adverse ruling[s]." All stem from an adversary proceeding Jackson commenced in 2013 with a multi-count complaint against five defendants. The underlying dispute involves a note and mortgage that have changed hands multiple times. The crux of Jackson's complaint, in its original iteration and as amended, is that certain attempts to foreclose the mortgage were wrongful.
After winnowing the issues on appeal to a significant extent, we find no error or abuse of discretion in any of the bankruptcy court's orders on the remaining issues. As a result, we AFFIRM.
In February 2004, Jackson executed a note (the "Note") in favor of America's Wholesale Lender.2 To secure the amounts due under the Note, Jackson granted a mortgage (the "Mortgage") on her condominium unit (the "Condo") to Mortgage Electronic Registration Systems, Inc. ("MERS"), as mortgagee and as nominee for America's Wholesale Lender.3
Jackson defaulted under the terms of the Note and Mortgage. In December 2008, Countrywide Home Loans, Inc., for the benefit of ING, entered the Condo in order to foreclose, and later recorded a foreclosure deed in the land records (the "2008 foreclosure").
In January 2009, Jackson entered into a "Move Out Agreement" with Countrywide Home Loans Servicing, L.P.4 Under this agreement, Jackson accepted a cash settlement of $3,500.00, vacated the Condo, and gave broad releases of her claims against Countrywide and others, including those claims related to the 2008 foreclosure.
More than one year after entering into the Move Out Agreement, Jackson filed a voluntary petition for chapter 7 relief in the United States Bankruptcy Court for the District of Massachusetts. She did not list the Condo as an asset on her schedules. Jackson received her chapter 7 discharge in May 2010, and her case was closed in January 2011.
Months later, Jackson received a letter from ING informing her of the monthly payments due on the Note. She later received two more letters—one in November 2011 and the other in January 2012—each from a Portnoy and Greene, P.C. ("P & G") attorney, Suzanne Brunelle ("Brunelle"), demanding payment of the Note on behalf of ING. In the second letter, Brunelle identified ING as "the present holder" of the Mortgage and stated that Jackson was in default of her obligation to make payments due under the Note.
Surprised by the letters, Jackson interpreted them to mean that there had been no foreclosure after all and that she was still the owner of the Condo. Therefore, in June 2012, she moved back in, resuming full possession and occupancy of the premises. Shortly thereafter,Jackson received another notice from Brunelle, stating that ING had scheduled a foreclosure sale of the Condo for July 18, 2012 (the "re-foreclosure").5
Five days before the scheduled re-foreclosure, Jackson filed a voluntary petition for chapter 13 relief. After the bankruptcy court dismissed that case due to Jackson's failure to file required documents, she filed a motion to reopen her original chapter 7 case, which the bankruptcy court granted on December 21, 2012. Jackson immediately converted her case to chapter 13, and on January 23, 2013, the automatic stay under § 362 was re-imposed.6 Jackson then amended Schedule A to list the Condo as an asset and amended Schedule D to list "Capital One NA, f/k/a ING" as a secured creditor holding a disputed claim in the amount of $209,000.00.
On May 30, 2013, Capital One filed a proof of claim in the approximate amount of $219,000.00. Jackson filed an objection to the claim, and later amended that objection. Among other things, Jackson asserted that: (1) the proof of claim included no accounting; (2) the 2008 foreclosure was void; and (3) Capital One's actions were unfair and deceptive within the meaning of Mass. Gen. Laws ch. 93A. Jackson requested an order requiring Capital One to "establish the accuracy of the amount claimed to be due" and "its right to enforce the Note and Mortgage."
In its response, Capital One argued, inter alia, that Jackson did "not overcome the presumption of validity" of its claim. After some briefing, Capital One filed an amended proof of claim (the "Amended Proof of Claim"). This time, Capital One asserted an increased claim in the approximate amount of $295,000.00, plus attorneys' fees, and approximately $104,000.00 in arrears, secured by the Condo. Jackson filed an objection to Capital One's Amended Proof of Claim (the "Objection to Amended Proof of Claim"), arguing, inter alia, that she should not be responsible for any portion of the claim relating to the period of time when she was forced to vacate the Condo.
On December 31, 2013, the bankruptcy court issued an order (the "December 2013 Order") together with the December 2013 Decision, overruling the Objection to Amended Proof of Claim, "except as to whether and in what amount [the claim] should be reduced to reflect the fact that . . . Jackson did not reside in the [Condo] for a period of time." The court consolidated the Objection to Amended Proof of Claim on this surviving ground with Jackson's adversary proceeding.
In October 2014, Capital One filed a second amended proof of claim, reducing its claim to $246,242.22. The intent of this amendment was to resolve Jackson's sole remaining objection by omitting the sums that accrued during the period of time when Jackson did not reside in the Condo. Jackson objected to Capital One's attempted amendment, on the grounds that it was unauthorized and did not take into account all of her damages. The court sustained her objection, striking Capital One's second amended proof of claim so that the disputed amount could be determined in the adversary proceeding.
On February 19, 2013, Jackson commenced an adversary proceeding with a six-count complaint (the "Complaint") against P & G, ING, Capital One, Bank of America, N.A. ("BOA"), and Harmon Law Offices, P.C. ("Harmon"). The crux of the Complaint was that the 2008 foreclosure and the attempted 2012 re-foreclosure were improper.
In Count I, aimed at all defendants except P & G, Jackson sought declaratory relief voiding the 2008 foreclosure on the grounds that Countrywide was not the mortgagee at the time of the sale, as MERS (the original mortgagee) had never assigned the Mortgage.
Jackson captioned Count II, "Fair Debt Collection Practices Act," and alleged in that count that all defendants except P & G "violated the Massachusetts and Federal Fair Debt Collection Practices Acts" by "asserting a right to collect a debt that was not owed to them." Accordingly, she sought money damages.
Jackson captioned Count III, "Deceit and Misrepresentation," and directed it against all defendants except P & G. She alleged that the Count III defendants "deceived [her] by misrepresenting their legal rights and hers." Accordingly, she claimed she was entitled to money damages.
In Count IV, Jackson asserted a cause of action for negligence against all defendants except P & G, alleging that they breached their "fiduciary duty to act fairly and in good faith."
Jackson directed Count V against P & G only, and captioned that count, "Deceit, Misrepresentation, FDCPA, and Violation of the Discharge Injunction." At the heart of this count were communications received by Jackson from Brunelle, "who admitted knowing that Jackson had filed a bankruptcy case and received a discharge." Additionally, Jacksoncomplained that the January 2012 letter from Brunelle was "false," insofar as it erroneously indicated that ING was the "present holder" of the Mortgage. She alleged in Count V that P & G "admitted that its actions [we]re subject to the Fair Debt Collection Practices Act" (the "FDCPA").
In Count VI, Jackson presented a claim against all defendants for "[b]reach of [c]ontract" and "[w]rongful [f]oreclosure," alleging that in connection with the "2008 foreclosure and the 2012 attempt to re-foreclose," they had failed to send Jackson the notices of default required under the terms of the Note, Mortgage, and "applicable Massachusetts statutes." In her prayer for relief, Jackson asked the bankruptcy court to: (1) enjoin the defendants from "complet[ing] or reinitiat[ing] the wrongful foreclosure sale"; (2) set aside the foreclosure sale and/or declare any foreclosure deed to be a nullity; (3) order the defendants to provide her with an accounting and an opportunity to cure any default pursuant to the provisions of chapter 13; (4) award damages for violation...
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