U.S. Bank, Nat'l Ass'n v. Conrad (In re Conrad)
| Decision Date | 16 April 2020 |
| Docket Number | CASE No. 20-50021 (JAM) |
| Citation | 614 B.R. 20 |
| Court | U.S. Bankruptcy Court — District of Connecticut |
| Parties | IN RE: Elizabeth P. CONRAD, Debtor. U.S. Bank, National Association, Movant, v. Elizabeth P. Conrad, Respondent. |
Linda St. Pierre, Esq., McCalla Raymer Leibert Pierce, LLC, 50 Weston St., Hartford, CT 06120, Attorney for the Movant
Ms. Elizabeth P. Conrad, Pro se Debtor
On January 9, 2020, Elizabeth Conrad (the "Debtor") filed a Chapter 13 petition. On February 19, 2020, U.S. Bank National Association ("U.S. Bank") filed a Motion for Relief from Stay (the "Motion for Relief from Stay") with regard to the Debtor's real property commonly known as 58 Weed Hill Avenue, Stamford, Connecticut 06907 (the "Property"). ECF No. 16. The Motion for Relief from Stay seeks relief under 11 U.S.C. §§ 362(d)(1) and (d)(2), and in rem relief under § 362(d)(4).
Despite having requested and been granted an extension of time to file a response to the Motion for Relief from Stay, the Debtor failed to do so. On March 17, 2020, the Court held a hearing on the Motion for Relief from Stay. Counsel for U.S. Bank and the Debtor appeared at the hearing and presented their respective arguments on the Motion for Relief from Stay. At the conclusion of the hearing, the Court took the Motion for Relief from Stay under advisement. For the reasons set forth below, the Motion for Relief from Stay is granted.
1. On or about July 21, 2006, the Debtor executed an Adjustable Rate Note in the original amount of $460,000.00 (the "Note") in favor of Mortgage Lenders Network U.S.C., Inc. The Debtor and John W. Conrad ("Mr. Conrad") also executed an Open-End Mortgage Deed (the "Mortgage") in favor of Mortgage Lenders Network USA, Inc. See Exhibits A and B to the Motion for Relief from Stay.2
2. The Note was indorsed by Mortgage Lenders Network USA, Inc. to Emax Financial Group, LLC, who then indorsed the Note to Residential Funding, LLC, who then indorsed the Note to U.S. Bank. See Exhibit A to the Motion for Relief from Stay.
3. U.S. Bank is also the holder of the Mortgage by assignment from Mortgage Electronic Registration Systems, Inc. as Nominee for Mortgage Capital Associates, Inc. to U.S. Bank. See Exhibit C to the Motion for Relief from Stay. Therefore, U.S. Bank is a party in interest pursuant to 11 U.S.C. § 362(d) and is entitled to seek the relief set forth in the Motion for Relief from Stay.
4. The Debtor has been in default of the Note since at least April 1, 2008. See Relief from Stay Worksheet-Real Estate attached to the Motion for Relief from Stay.
5. On August 15, 2008, U.S. Bank commenced a foreclosure action against the Debtor and Mr. Conrad in Connecticut Superior Court in an action entitled U.S. Bank National Association v. Elizabeth P. Conrad et al. , CV08-5008432 (the "State Court Foreclosure Action").
6. According to the State Court Foreclosure Action docket attached to the Motion for Relief from Stay as Exhibit D, a Judgment of Foreclosure entered on January 12, 2009.
7. A review of the State Court Foreclosure Action docket demonstrates that from 2009 until early 2014, the parties participated in a foreclosure mediation program. When mediation was not successful, U.S. Bank continued its efforts to obtain a judgment of foreclosure.
8. At a hearing held in the State Court Foreclosure Action on May 7, 2014, the Debtor and Mr. Conrad, represented by counsel, and U.S. Bank, represented by counsel, stipulated to the entry of a Judgment of Foreclosure by Sale. A Judgment of Foreclosure by Sale then entered, which set a sale date of October 4, 2014.
9. On September 18, 2014, the Debtor and Mr. Conrad filed a Motion to Open Judgment of Foreclosure by Sale, which the Superior Court denied on September 29, 2014. See Exhibit E to the Motion for Relief from Stay.
10. On October 3, 2014, one day before the Foreclosure by Sale was to be conducted, Mr. Conrad commenced a Chapter 7 case by filing a voluntary petition, Case No. 14-51541 ("Mr. Conrad's 2014 Bankruptcy Case"). Because the automatic stay provided by 11 U.S.C. § 362(a) went into effect upon the filing of Mr. Conrad's 2014 Bankruptcy Case, the scheduled Foreclosure by Sale of the Property was stayed.
11. Mr. Conrad received a Chapter 7 discharge on January 14, 2015. Mr. Conrad's 2014 Bankruptcy Case was closed on February 4, 2015.
12. After Mr. Conrad's 2014 Bankruptcy Case was closed, U.S. Bank continued to prosecute the State Court Foreclosure Action.
13. On September 14, 2015, the Debtor and Mr. Conrad filed a Motion to Dismiss the State Court Foreclosure Action.
14. On January 29, 2016, the Motion to Dismiss was denied. See Exhibit F to the Motion for Relief from Stay. A Judgment of Foreclosure by Sale again entered, setting June 4, 2016, as the date the Foreclosure by Sale was to be conducted.
15. On May 5, 2016, the Debtor and Mr. Conrad filed another Motion to Open Judgment of Foreclosure by Sale. On May 31, 2016, the Superior Court denied the Motion to Open Judgment. See Exhibit G to the Motion for Relief from Stay.
16. On June 3, 2016, the day before the Foreclosure by Sale was again to be conducted, the Debtor commenced a Chapter 13 case by filing a voluntary petition, Case No. 16-50740 (the "Debtor's 2016 Bankruptcy Case"). Because the automatic stay provided by 11 U.S.C. § 362(a) went into effect upon the filing of the Debtor's 2016 Bankruptcy Case, the scheduled Foreclosure by Sale of the Property was again stayed.
17. On August 12, 2016, U.S. Bank filed a Motion for Relief from Stay in the Debtor's 2016 Bankruptcy Case, which it amended on August 15, 2016.
18. On December 21, 2016, the Court granted the Amended Motion for Relief from Stay, which also included a waiver of the fourteen-day stay of the Order provided by Fed. R. Bankr. P. 4001(a)(3). The Connecticut Superior Court then set another Foreclosure by Sale date of March 4, 2017. The Debtor's 2016 Bankruptcy Case was ultimately dismissed on June 12, 2017, for the failure to file an Amended Chapter 13 Plan.
19. On March 3, 2017, the day before the Foreclosure by Sale was again to be conducted, Mr. Conrad commenced a Chapter 13 case by filing a voluntary petition, Case No. 17-50234 ("Mr. Conrad's 2017 Bankruptcy Case"). Once again, because the automatic stay provided by 11 U.S.C. § 362(a) went into effect upon the filing of Mr. Conrad's 2017 Bankruptcy Case, the scheduled Foreclosure by Sale of the Property was stayed.
20. On March 21, 2017, Mr. Conrad's 2017 Bankruptcy Case was dismissed due to his failure to file required documents to administer his case and his failure to cure required document deficiencies, despite being provided with an opportunity to do so.
21. On April 17, 2017, U.S. Bank filed a Motion to Open Judgment of Foreclosure by Sale and Extend the Sale Date in the State Court Foreclosure Action.
22. On May 15, 2017, the Motion to Open Judgment was granted and another Judgment of Foreclosure by Sale entered setting August 5, 2017, as the date the Foreclosure by Sale was to be conducted. See Exhibit J to the Motion for Relief from Stay.
23. On June 26, 2017, the Debtor filed another Motion to Dismiss the State Court Foreclosure Action, which was denied on July 10, 2017.
24. On July 28, 2017, a week before a Foreclosure by Sale was again to be conducted, the Debtor appealed the denial the Motion to Dismiss to the Connecticut Appellate Court. The appellate stay provided under Connecticut Practice Book § 61-11(a) took effect and the Foreclosure by Sale scheduled to be conducted on August 5, 2017, was again stayed.
25. On May 7, 2019, the Connecticut Appellate Court affirmed the Connecticut Superior Court's denial of the Motion to Dismiss and remanded the case to the Connecticut Superior Court for the purpose of setting a new Foreclosure by Sale date. See Exhibit K to the Motion for Relief from Stay.
26. On September 4, 2019, the Debtor filed a petition for certiorari in the Connecticut Supreme Court.
27. On October 22, 2019, the Connecticut Supreme Court denied the Debtor's petition for certiorari of the opinion of the Connecticut Appellate Court. U.S. Bank, N.A. v. Elizabeth P. Conrad et al. , 333 Conn. 929, 218 A.3d 70 (2019).
28. On October 28, 2019, after the petition for certiorari was denied, the Connecticut Superior Court entered another Judgment of Foreclosure by Sale which: (i) found that a total debt of $884,157.06 was owed to the Plaintiff; (ii) determined that the Property had a Fair Market Value of $396,000.00; and (iii) set another Foreclosure by Sale date of January 11, 2020. See Exhibits M and N to the Motion for Relief from Stay.
29. On January 9, 2020, two days before the scheduled Foreclosure by Sale was again to be conducted, the Debtor commenced the instant Chapter 13 case by filing a voluntary petition, Case No. 20-50021 (the "Debtor's 2020 Bankruptcy Case"). Because the automatic stay provided by 11 U.S.C. § 362(a) went into effect upon the filing of the Debtor's 2020 Bankruptcy Case, the Foreclosure by Sale of the Property scheduled to be conducted on January 11, 2020, was stayed.
30. On February 19, 2020, U.S. Bank filed the Motion for Relief from Stay.
U.S. Bank seeks relief from the automatic stay under 11 U.S.C. §§ 362(d)(1), (d)(2), and (d)(4). Section 362(g) provides that the party requesting relief from the automatic stay has the burden of proof on the question of the debtor's equity in property and the party opposing relief has the burden on all other...
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