Timmons v. Rose Acceptance, Inc. (In re Timmons)
| Decision Date | 20 September 2012 |
| Docket Number | Adversary No. 12–00137.,Bankruptcy No. 12–02476–BGC–13. |
| Citation | 479 B.R. 597 |
| Parties | In re Darryl TIMMONS, Debtor. Darryl Timmons, Plaintiff, v. Rose Acceptance, Inc., Defendant. |
| Court | U.S. Bankruptcy Court — Northern District of Alabama |
OPINION TEXT STARTS HERE
Rebecca S. Bozeman, Rebecca Bozeman & Associates, Birmingham, AL, for Plaintiff.
James H. Greer, Key, Greer, Frawley, Key & Harrison, Pelham, AL, for Defendant.
The matters before the Court are a Motion for Temporary Restraining Order to Prohibit Sale of Property and a Motion for Expedited Hearing on Debtor's Motion for Temporary Restraining Order to Prohibit Sale of Property, both filed by the plaintiff on September 19, 2012. The pleadings were filed at about 1:00 p.m., and according to the debtor's counsel were served either electronically or by U.S. mail on Mr. Jim Greer, attorney of record, for Rose Acceptance, Inc.1 An emergency hearing was held at 10:30 a.m. on September 20, 2012. Appearing were: the debtor; his attorney Rebecca Bozeman; Jim Greer, the attorney for Rose Acceptance, Inc.; and Sims Crawford, the Chapter 13 Standing Trustee.
This debtor has had three cases in the last three years. Rose Acceptance, or its related company First National Bank of America, has been involved in all three of those cases.
The debtor filed Case No. 10–05003–BGC–13 on August 20, 2010. Docket No. 1. First National Bank of America, who held a security interest in the debtor's home filed a Motion for Relief from Automatic Stay on November 12, 2010. A hearing was scheduled for December 7, 2010. Before the hearing, the parties advised the Court that a settlement on the motion had been reached. The parties submitted an order and the Court entered the Order on December 7, 2010, with the following conditions:
1. The Motion for Relief is conditionally denied.
2. Movant shall be allowed to file a secured claim for the post petition arrearage through December 2010 totaling $ 1543.08 which includes attorney fees and costs of $550.00
3. Movant and Debtor agree that should the debtor fail to make any future monthly mortgage payment, beginning with the payment due January 5, 2011, Movant shall send a written twenty (20) day notice of default, to the debtor and debtor's attorney, at their addresses listed in the petition. Should the debtor fail to cure the default within twenty (20) days of said notice, Movant shall have relief from the stay without further order of the Court.
4. The debtors plan is amended to pay First National Bank of America a fixed payment of $ 38.57 on its arrearage claim.
Order, December 7, 2010, Docket No. 36.
The debtor failed to pay the January 2011 through May 2011 mortgage payments. The mortgage company sent a notice to cure the default. The debtor failed to cure the default. A foreclosure was scheduled for August 25, 2011. The foreclosure was continued to September 27, 2011. On September 26, 2011, the debtor filed a Motion to Dismiss his case. Docket No. 57. The Court entered an Order granting the debtor's motion to dismiss on September 26, 2011. Docket No. 58.
The debtor filed Case No. 11–04853–BGC–13 on September 26, 2011. Docket No. 1. The debtor filed a Motion to Extend Automatic Stay on September 26, 2011. Docket No. 3. First National Bank of America filed an Objection to Debtor's Motion to Extend Stay on October 6, 2011. Docket No. 29. After notice and a hearing, the Court entered an Order on October 19, 2011, granting the debtor's Motion to Extend Automatic Stay as to all creditors except First National Bank. The debtor and First National agreed to extend the stay as to First National based on certain conditions. The parties submitted an agreed Order and the Court entered that order on October 25, 2011, with the following conditions:
1. The stay is extended as to First National Bank of America so long as the terms below are met.
2. The debtor is to amend his plan to pay First National Bank of America on their arrearage through October 2011 in the plan.
3. Should the debtor fail to make any future monthly direct mortgage payment, beginning with the November, 2011 payment, by the 15th day of each month, First National Bank of America will give the debtor and debtors attorney a fifteen (15) day written notice of default. If the debtors fail to cure said default within fifteen (15) days of said notice, First National Bank of America shall have relief from the stay without further order of the Court.
4. The debtor is to make proper payments to the Trustee to fund the plan. Should the debtor fail to make any payment to fund the plan, in the month in which they are due, First National Bank of America will give the debtor and debtors attorney a fifteen (15) day written notice of default. If the debtors fail to cure said default within fifteen (15) days of said notice, First National Bank of America shall have relief from the stay without further order of the Court.
Order, October 25, 2011, Docket No. 34.
The debtor failed to make the December 2011 payment. First National sent a notice to the debtor to cure the payment. The debtor failed to cure the default. A foreclosure was scheduled for February 20, 2012. On February 18, 2012, the debtor tendered a payment to First National in the approximate amount of $666.00, which was almost three months' mortgage payments. The foreclosure was continued to April 24, 2012, and then continued to May 23, 2012.
On May 23, 2012, the debtor filed a Motion to Dismiss Case. Docket No. 68. The Court entered an Order on May 23, 2012, granting the debtor's motion. Docket No. 69.
The debtor filed Case No. 12–02476–BGC–13 on May 23, 2012, at 10:32 a.m. Docket No. 1. The debtor also filed a Motion to Impose Automatic Stay on May 23, 2012. Docket No. 5. The Court held an emergency hearing on the motion on May 23, 2012. Appearing were the debtor; Ms. Bozeman; and Mr. Greer. The Court entered an order based on the arguments of counsel and the pleadings. That order reads:
1. The Debtor's Amended Motion to Impose Automatic Stay is GRANTED and the automatic stay provided for in 11 U.S.C. Section 362(c)(4)(B) is imposed as to Rose Acceptance, Inc. only.
2. The oral objection by Rose Acceptance, Inc. c/o First National Bank of America is overruled. The debtor is to resume direct mortgage payment to Rose Acceptance, Inc. (according to the parties' mortgage contract) beginning with the mortgage payment due for July 2012. Rose Acceptance, Inc. shall file a proof of claim for the arrearage owed through June 2012. If the Debtor fails to make any direct monthly mortgage payments beginning with the mortgage payment due for July 2012, Rose Acceptance, Inc. shall give the debtor and debtor's attorney a fifteen (15) days written notice of default. If the debtor fails to cure said default within fifteen (15) days of said notice, Rose Acceptance, Inc. is granted relief from the stay without further notice or order of this Court.
3. Notice of the Debtor's Amended Motion to Impose Automatic Stay shall be given to all creditors (along with a copy of this order). The motion shall be set for a hearing in the normal course to consider whether the stay should be imposed as to the other creditors in this case.
Order, May 24, 2012, Docket No. 15.
The debtor failed to make the mortgage payments. Rose Acceptance sent a notice to cure the default. The debtor failed to cure the default. A foreclosure was scheduled for September 21, 2012.
The debtor has submitted two payments into his Chapter 13 case. Both payments were returned for insufficient funds.
The debtor testified that the value of his home is between $50,000 and $55,000. Rose Acceptance valued the home at $11,500.
The debtor proposes to amend his plan to include a pass-through mortgage payment to Rose Acceptance and cure his current arrearage.
The debtor's wife passed away in 2009. The debtor has three children. Two of them are minors and live with him in the home his mother bought in 1975. His oldest child moved out of that home this summer to attend college on a full tuition scholarship. He is the first in the family to attend college. The debtor testified that he had expenses relating to his son moving to college, including clothes, books, furnishings, and recreation. He also testified he should have less expenses for his son because of the scholarship and the son's not living at home. That son is also working as part of college.
The debtor's debt to Rose is a result of a loan for improvements in 2008. Because he has not made the payments on the loan, the loan has increased sharply.
The debtor owns his own business and has for about 18 years. He provides environmental products to commercial locations. He sells those products for an initial fee then charges the establishments to monitor the products and to replace parts when necessary.
He has a five-year contract with the University of Alabama at Birmingham (UAB) for these products and has been working there for about 12 to 13 years. 2 He is working with them to expand his services to other building on campus such as dorms and athletic facilities. The debtor has verbal contracts with other commercial facilities such as Miles College to supply his products. He sells his products directly on the weekend at a local flea market. He estimates that he receives from $500 to $1,000 per weekend.
The debtor testified that his income is approximately $3700 per month.
The defendant has filed a claim for post-petition arrears. Claim 2 was filed for $8,135.98. There has been no payment on that claim. The defendant represented at the hearing that the claim would need to be amended to reflect the cost of scheduling the September 21, 2012, foreclosure.
The parties agree that the debtor's current...
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