ERIC L. FRANK, CHIEF U.S. BANKRUPTCY JUDGE.
Debtor Franklin Bennett ("the Debtor") filed a voluntary chapter 7 bankruptcy petition on April 21, 2014. Upon the Debtor's request, the case was converted to chapter 13 on May 2, 2014. (Bky No. 14-13143, Doc. # 23).
On October 22, 2014, Bank of America, N.A. ("Bank of America") filed a proof of claim asserting a claim of $404,625.07 secured by the Debtor's interest in the real property located at 4712 Castor Avenue, Philadelphia, PA ("the Property"). On November 26, 2014, the Debtor filed an objection to Bank of America's proof of claim ("the Objection"). (Id., Doc. # 77). In the Objection, the Debtor disputed the amount of the claim. Then, on November 30, 2014, the Debtor filed this adversary proceeding against Bank of America and The Bank of New York Mellon ("BNYM"). In his multi-count Complaint, the Debtor attacked the validity of the mortgage against the Property held by each Defendant and requested a determination that the mortgages are void. By order dated January 14, 2015, I consolidated for all purposes the contested matter arising from the Objection and the adversary proceeding. (Adv. No. 14-666, Doc. # 7).
On December 29, 2014, Bank of America filed a Motion to Dismiss the Complaint ("the Motion") (Doc. # 3) under Fed. R.Civ.P. 12(b)(6) (incorporated by Fed. R. Bankr.P. 7012). In the Motion, Bank of America asserts that the Complaint should be dismissed for lack of standing and legal insufficiency. Bank of America also asserts that the statute of limitations has expired on several claims. See generally Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.2014) (statute of limitations defense may be raised in Rule 12(b)(6) motion if the facts alleged in the complaint show that the action is untimely).
On February 17, 2015, the Debtor filed his response to the Motion. (Doc. # 15).
As explained more fully below: (1) the Motion will be granted in part and denied in part; and (2) the dismissed counts will be dismissed without leave to amend.
A motion under Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the factual allegations of a complaint, see Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993), and determines "whether the plaintiff is entitled to offer evidence to support the claims," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In evaluating the plausibility of the plaintiff's claim, the court conducts a context-specific evaluation of the complaint, drawing from its judicial experience and common sense. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009); In re Universal Marketing, Inc., 460 B.R. 828, 834 (Bankr.E.D.Pa.2011) (citing authorities); In re Olick, 2011 WL 2565665, at *1-2 (Bankr.E.D.Pa. June 28, 2011). In doing so, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, viewing them in the light most favorable to the plaintiff. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Taliaferro v. Darby Township Zoning Board, 458 F.3d 181, 188 (3d Cir.2006). But, the court is not "bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Third Circuit Court of Appeals has condensed these principles into a three (3) part test:
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010) (quotations and citations omitted).
Finally, in assessing a Rule 12(b)(6) motion, the court may "consider the allegations in the complaint, exhibits attached to the complaint and matters of public record... [as well as,] `undisputedly authentic documents' where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss." Unite Nat'l Ret. Fund v. Rosa Sportswear, Inc., 2007 WL 2713051, at *4 (M.D.Pa. Sept. 14, 2007) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)); see also In re Angulo, 2010 WL 1727999, at *12 n. 1 (Bankr. E.D.Pa. Apr. 23, 2010).
The Complaint set out eight (8) claims as follows:
In support of his claims, the Debtor makes the following factual assertions.
Dolores M. Snyder owned the real property at 4712 Caster Avenue, Philadelphia, Pennsylvania ("the Property"). (Complaint ¶¶ 5-8). Mrs. Snyder died intestate on August 16, 2004. (Compl.¶¶ 9-10). The Register of Wills for Philadelphia County granted Ms. Snyder's son, Richard M. Snyder ("Snyder"), Letters of Administration on August 30, 2004 with respect to the decedent's estate ("the Estate"). (Compl. ¶¶ 11-13; Exhibit B).
Thereafter, Snyder entered into four (4) transactions that affected title to the Property.
The first transaction was a deed transfer that occurred on October 10, 2005 ("the 1st Deed Transfer"). Snyder, acting as administrator of the Estate, deeded the property from his mother's Estate to himself, individually, for $1.00. (Compl. ¶ 15; Ex. C). In connection with the 1st Deed Transfer, Snyder filed a Philadelphia Real Estate Transfer Tax Certification. In the Tax Certification, he claimed an exemption from the real estate transfer tax based upon "Will or intestate succession," and as "Administrator of Estate to himself." (Compl.Ex. C). Snyder did not seek court approval of the 1st Deed Transfer. (Compl.¶ 16). See generally 20 Pa.C.S. § 3356 (requiring court approval for purchases by personal representative).
In the second transaction, Snyder encumbered the Property by executing a promissory note and mortgage in favor of America's Wholesale Lender ("the 1st Mortgage") on October 10, 2005. (Compl.¶ 25, Ex. P). The 1st Mortgage was recorded December 1, 2005. (Id. Ex. Q). The Debtor alleges that through a series of assignments, the 1st Mortgage was assigned to Defendant Bank of America. (Id. ¶¶ 38-41). The various assignments were filed with the Philadelphia Recorder of Deeds on May 31, 2007, April 14, 2010, April 23, 2012 and July 22, 2013, with the last assignment purporting to correct the "assignor and assignee name[s]" on the April 14, 2010 assignment. (Compl. ¶¶ 38-41; Exs. L-O).
The final transaction affecting title to the Property occurred on July 23, 2011 ("the 2nd Deed Transfer"). Snyder, in his capacity as administrator of the Estate (and not in his individual capacity, despite the 1st Transfer), executed a deed transferring the Property to the Debtor.
The Complaint also is based, in part, on certain actions that Bank of America took in enforcing its rights as mortgagee.
Bank of America filed a foreclosure action against the Property in the Pennsylvania Court of Common Pleas, Philadelphia County ("the C.P. Court"). (Id. ¶ 56). Bank of America obtained a default judgment and the Property was sold at a sheriff's sale on July 1, 2008. (Id. ¶¶ 58-59). Fannie Mae was the purchaser at the sale. (Id. ¶ 63). However, on November 23, 2009, Bank of America sought to "undo" the sheriff's sale by filing a motion to set aside the sale and strike the sheriff's deed on the ground that it had reached an agreement with Snyder to resolve the delinquency
The Debtor does not claim that he was a party to any of the Snyder transactions other than the 2nd Deed Transfer. Nonetheless, the Debtor bases some of his claims on injuries he alleges that Snyder suffered during the course of the mortgage transactions and the subsequent assignments. The Debtor asserts that the mortgage lenders charged Snyder exorbitant fees and engaged in fraudulent activity in connection with the mortgage loans. (Id. ¶¶ 30-31, 33). The Debtor also alleges irregularities in Bank of America's actions to have the sheriff's sale set aside. (Id. ¶¶ 61, 63, 67).
Under Pennsylvania law, an action to quiet title is a civil action that may be brought, inter alia:
Pa. R. Civ. P. 1061(b); see also Bruker v. Carlisle Borough, 376 Pa. 330, 334, 102 A.2d 418 (Pa.1954). It is considered an action at law, not equity. See Standard Pennsylvania Practice § 120:139 (West 2015) ("SPP").
To prevail in an action to quiet title, the plaintiff must make a prima facie showing that he holds title to the property and that such title is better title than that of the adverse party. E.g., Poffernberger v. Goldstein, 776 A.2d 1037, 1041 (Pa.Super.Ct.2001) (internal quotations and citations omitted). The burden of proof is on the plaintiff. E.g., Cox's Inc. v. Snodgrass, 372 Pa. 148, 92 A.2d 540, 541-42 (1953); Montrenes v. Montrenes, 355 Pa.Super. 403, 513 A.2d 983, 405 (1986).
The Debtor contends that Bank of America's mortgage is invalid and seeks quiet title relief to remove what he asserts is a cloud on his title to the Property.
The initial premise of the Debtor's legal theory is that the 1st Deed Transfer (from Snyder as Administrator to Snyder, individually) was void. According to the Debtor, Snyder had no ownership interest in the Property (in any capacity) and therefore, no authority to encumber the Property with mortgages, thus rendering void the subsequent 1st Mortgage and successive assignments leading to the assignment to Bank of America.
The Debtor bases his attack of the 1st Deed Transfer on § 3356 of the Pennsylvania Decedents, Estates, and Fiduciaries Code, 20 Pa.C.S. § 3356. Section 3356 provides in relevant part:
(emphasis added).
Section 3356 of the Pennsylvania Probate Code requires the administrator of an estate to obtain court approval prior to any sale of estate property to the administrator himself. The Debtor alleges that Snyder never received court approval prior to or after the 1st Deed Transfer, and therefore, the deed is void and a legal nullity. (Debtor Response 9-10).
Bank of America claims that the deed is valid because the 1st Deed Transfer was a distribution from the Estate, not a purchase by Snyder that required court approval. (Motion at 911).
For the Debtor to prevail based upon § 3356, the Debtor must establish that the 1st Deed Transfer was either void or, at least, "voidable".
First, the Debtor has not alleged facts supporting the essential determination under 20 Pa.C.S. § 3356: that the transaction was a "purchase" from, rather than a distribution by, the Estate. The Debtor alleges only that Snyder, as administrator of the Estate, transferred the Property to himself, in his personal capacity. The Complaint is devoid of facts regarding the
Based on the facts as pled and the supporting documentation, there is no plausible basis to conclude the 1st Deed Transfer was a sale under 20 Pa.C.S. § 3356. See Twombly, 550 U.S. at 547, 127 S.Ct. 1955.
While this first flaw in the Complaint potentially could be cured by pleading additional facts in an amended complaint, there is a second flaw that is incurable. Even assuming that the 1st Deed Transfer was a § 3356 "purchase," the Debtor has not pled facts suggesting he has the requisite standing to invoke the statute to attack the validity of the 1st Deed Transfer and the subsequent mortgage conveyances.
The doctrine of standing requires a plaintiff to establish that (1) he has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the alleged injury will be redressed by the relief sought. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); In re Global Indus. Technologies, Inc., 645 F.3d 201, 210 (3d Cir.2011). An injury in fact is the "invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Berg v. Obama, 586 F.3d 234, 239 (3d Cir.2009) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations and quotations omitted)).
The defect in the Debtor's claim is the lack of any allegation that he has a legally protectable interest covered by 20 Pa.C.S. § 3356 in connection with the Estate of Dolores M. Snyder. The § 3356 requirement of court approval of a self-dealing transaction by the fiduciary of a decedent's estate is designed to protect the heirs and creditors of the decedent's estate. Accord In re Estate of Frey, 693 A.2d 1349, 1354 (Pa.Super.Ct.1997). Therefore, only those who have a right of inheritance or distribution from the estate may challenge a transaction by an estate fiduciary based on the failure to comply with § 3356. In re Estate of Drummond-Poles, 2011 Phila. Ct. Com. Pl. LEXIS 211, at *5 (Pa.C.P.2011).
The Debtor has not alleged (nor is there any reason to believe that he could allege) that he was an heir or a creditor of the Estate. Section 3356 does not confer standing on third parties to collaterally attack the validity of property transfers from a decedent's estate. Id. at *5-6. As a stranger to the Estate, the Debtor has no legally protectable interest affected by the requirements of § 3356.
Slander of title is "is the false and malicious representation of the title or quality of another's interest in goods or property." Pro Golf Mfg. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 246 (2002); Deve Dev., Inc. v. Gargiulo, 2006 Phila. Ct. Com. Pl. LEXIS 31, 4-5 (Pa.C.P.2006); accord Lincoln v. Magnum Land Servs., LLC, 2013 WL 2443926, at *5 (M.D.Pa. June 5, 2013).
The elements of slander of title are:
Pro Golf Mfg., 809 A.2d at 246 (citing Restatement (Second) of Torts § 623(A) (1977) ("Restatement")); accord Lincoln v. Magnum Land Servs., LLC, 2013 WL 2443926, at *5 (M.D.Pa. June 5, 2013).
The Debtor bases his slander of title claim on the invalidity of the 1st Deed Transfer, i.e., his title to the Property was slandered when the 1st Mortgage was recorded, with that slander being republished each time a holder assigned the 1st Mortgage to another entity.
First, as explained earlier, the Debtor has no standing to claim that the 1st Deed Transfer is void or avoidable; Snyder had the authority to enter into the 1st Mortgage transaction. Accordingly, there was nothing false in the publication/recordation of Bank of America's mortgage and its existence and subsequent assignment cannot impair the Debtor's title to the Property.
Second, the Complaint lacks facts to support the scienter element of a claim for slander of title: an intent to cause financial loss and knowledge or a reckless disregard of the falsity of the recordation and assignment of the 1st Mortgage. See n.11, supra & accompanying text.
Count III of the Complaint asserts a cause of action for unjust enrichment.
Unjust enrichment is an equitable doctrine in which the law implies a contract between parties and requires one party to compensate the other for a benefit conferred. See, e.g., Villoresi v. Femminella, 856 A.2d 78 (Pa.Super.Ct.2004); Mitchell v. Moore, 729 A.2d 1200, 1203-1204 (Pa.Super.Ct.1999).
The elements necessary to prove unjust enrichment are:
Mitchell, 729 A.2d at 1203-04; Schenck v. K.E. David, Ltd., 446 Pa.Super. 94, 666 A.2d 327, 328 (1995). Application of the doctrine rests on the factual circumstances in a given case. Schenck, 666 A.2d at 328. Thus, the "focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched." Id.
The Debtor claims that Bank of America has been unjustly enriched by the renovations he performed on the Property that allegedly increased its value by $25,000.00 to $100,000.00. The Debtor argues that Bank of America should not retain the benefits of the increase in value to the Property (and security interest) without a corresponding payment to the Debtor.
The Complaint falls far short of stating a claim for unjust enrichment.
There are no allegations in the Complaint that support a claim that it would be inequitable for Bank of America to realize the benefit of any appreciation in the value of the Property resulting from improvements made by the Debtor (in the event that Bank of America must look to its collateral for payment of its outstanding claim rather than from a stream of payments from the Debtor). The Complaint alleges only that Bank of America knew that the Debtor was making improvements in the Property before it commenced foreclosure. There are no allegations that Bank of America induced the Debtor to do so nor are there any other allegations that distinguish what occurred here from the run-of-the-mill risk any property owner incurs when expending money to improve a property that is subject to a mortgage.
The Debtor asserts a civil conspiracy claim based on his contentions that Bank of America (or its predecessors), along with MERS and Fannie Mae, conspired to charge exorbitant fees in connection with the loan to Snyder from America's Wholesale Lender and that Bank of America lied to the C.P. Court in connection with the motion to set aside the sheriff's sale in order to realize increased proceeds from the Property through a subsequent sheriff's sale.
"A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful
The statute of limitations for civil conspiracy is the same as that for the underlying action which forms the basis of the conspiracy. Kingston Coal Co. v. Felton Mining Co., 456 Pa.Super. 270, 690 A.2d 284, 287 n. 1 (1997). The statute of limitations runs from the commission of each overt act which is alleged to have caused the damage. Auld, 300 F.Supp. at 142. The statute of limitations in Pennsylvania for fraud or any other action for damages based on "tortious conduct" is two (2) years. 42 Pa.C.S. § 5524(7).
Bank of America offers several grounds for dismissal of the civil conspiracy claims:
I agree with all three (3) of Bank of America's arguments.
The Complaint focuses on the loan transaction between Snyder and America's Wholesale Lender and contains no allegations that the Debtor was a party to any loan or mortgage agreement which the Debtor claims were affected by a civil conspiracy. Thus, the Debtor is complaining of acts allegedly committed against a third party (Snyder) and has not pled any injury to himself. He has no legally protectable interest in shielding Snyder from tortious conduct by Snyder's lender; he cannot sue for harms allegedly suffered by Snyder. He lacks standing to sue for alleged harms suffered by a third party.
Further, the Debtor failed to set forth facts suggesting that Bank of America committed an overt act done in pursuit of a common purpose that is unlawful or that Bank of America acted with malice or an intent to injure the Debtor in any way.
Lastly, the civil conspiracy claim is time-barred. The Snyder mortgage loan transaction occurred on October 10, 2005, and no action was taken to redress any injury within the two-year statute of limitations. Bank of America's motion to set aside the sheriff's sale was filed November 23, 2009 with the C.P. Court. (Compl., Ex. G). The statute has also run on that purported fraudulent filing.
The Debtor's Count VI fraud claims are grounded in the same allegations as his civil conspiracy claims, i.e., that Bank of America (or its predecessors) along with MERS and Fannie Mae committed fraud by charging exorbitant fees in connection with the loan to Snyder from America's Wholesale Lender and that Bank of America's motion to set aside the sheriff's sale in the C.P. Court was fraudulent.
A plaintiff must prove the following elements to recover on a claim of fraud:
E.g., Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882 (Pa.1994); SPP § 21:65.
The statute of limitations for fraud under Pennsylvania law is two (2) years. 42 Pa.C.S. § 5524(7).
The Debtor's fraud claims have the same defects as the civil conspiracy claims. The Debtor lacks standing to sue for alleged frauds committed against Snyder and the applicable two (2) year statute of limitations has run. Further the Complaint's allegations do not support at least two (2) essential elements of a fraud claim: the Complaint describes neither any factual misrepresentations allegedly made by Bank of America nor facts to support an inference that the factual mis-representations were made with the intent to mislead or deceive.
The Debtor seeks to modify the allowed secured claim and value the Property at $100,000.00. The Debtor bases this request on 11 U.S.C. § 506(a)(1), which provides:
Presumably, this claim is the Debtor's fall-back. If he cannot avoid Bank of America's mortgage, he hopes to reduce its allowed secured claim from $404,625.07 to $100,000.00 and provide for payment of the allowed secured claim in his chapter 13 plan pursuant to 11 U.S.C. § 1325(a)(5).
Bank of America contests the Debtor's valuation and asserts that the value is in excess of the Debtor's estimate. Bank of America also argues that the Debtor's request to reduce the secured claim must fail because the Debtor cannot prove that he has the ability to make payments on the reduced secured claim. (Motion at 21). According to Bank of America, the Debtor's schedules establish that he has no source of funding to make payments on the 1st Mortgage.
I will deny the Motion as to this claim. While Bank of America's contention that the Debtor lacks the ability to fund a chapter 13 plan to provide for a $100,000.00 allowed secured claim might be a valid objection to confirmation or a basis
After granting a motion to dismiss a complaint under Rule 12(b)(6), a court should grant the plaintiff leave to amend "unless an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). "`Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted," Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir.1997)), or the amended complaint would not withstand a renewed motion to dismiss, Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). For instance, if there is an obvious meritorious defense, such as the statute of limitations, then dismissal with prejudice would be proper as no amendment could cure the defect. See e.g., Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983); Jablonski, 863 F.2d at 292. The same is true of claims that have no arguable basis in law. Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.1990).
In this proceeding, any proposed amendment to the dismissed claims would be futile; the amended claims would not withstand a renewed motion to dismiss.
For the reasons set forth above, Bank of America's Motion to Dismiss is granted in part and denied in part. Counts I, II, III, IV, and VI will be dismissed with prejudice.
An appropriate order follows.
The Debtor filed a statement asserting that all of his claims are core. (Doc. # 18). Bank of America took the position that all of the claims are non-core, but then consented to the entry of a final judgment by the bankruptcy court. (Doc. # 19). See generally Wellness Intern. Network Ltd. v. Sharif, ___ U.S. ___, 134 S.Ct. 2901, 189 L.Ed.2d 854 (2014) (certiorari granted to consider question whether the bankruptcy court may enter a final order in a non-core matter with the parties' consent).
Date Recorded Assignor 5/31/07 MERS as nominee for America's Countrywide Home Loans Wholesale Lender 4/14/10 Countrywide Home Loans, Inc. BAC Home Loans Servicing, LP 4/23/12 BAC Home Loans Servicing, LP Bank of America, N.A. 7/22/13 Countrywide Home Loans, Inc. Bank of America, N.A. Assignee
If the 1st Deed transfer is merely "voidable," the issue is more complicated. The Commonwealth Court of Pennsylvania has stated:
See Vine v. State Employees' Retirement Bd., 956 A.2d 1088, 1094 (Pa.Cmwlth.Ct.2008) (citations omitted), rev'd on other grounds, 607 Pa. 648, 9 A.3d 1150 (2010).
There are no Pennsylvania court decisions that provide guidance as to the effect of the avoidance of a transfer due to the grantor's failure to comply with 20 Pa.C.S. § 3356 on a third party that engaged in a transaction with the transferee prior to the avoidance. Analogous areas of the law suggest that the out-come may depend on whether the third party (in this adversary proceeding, that would be Bank of America) was a bona fide purchaser for value without notice of the defect in their title. See In re Fowler, 425 B.R. 157, 196 (Bankr.E.D.Pa.2010) (citing cases involving the rights of subsequent purchasers as against the holders of prior, unrecorded interests); see also 11 U.S.C. § 550(e)(1) (after avoidance of a transfer, a good faith transferee may retain its lien in certain circumstances).
The point here is that if the Debtor made out a prima facie case that the 1st Deed Transfer was avoidable, Bank of America might have had to rely on an affirmative defense to protect its mortgage position, thus making it inappropriate to dismiss the Debtor's claim under Rule 12(b)(6). However, it is unnecessary to decide whether a violation of 20 Pa.C.S. 3356 gives rise to any type of avoidance power (or is remediable only by surcharging the offending estate fiduciary) or whether a good faith transferee can defeat an avoidance claim. As explained below, the Debtor has no legally cognizable claim for the avoidance of the 1st Deed Transfer and the 1st Mortgage.
The Institute takes no position on the questions of:
Accepting the questionable proposition that the recordation of a mortgage assignment constitutes a republication of the recordation of the allegedly slanderous mortgage, it is patently clear from the facts in the Complaint that the Debtor's slander of title claims with respect to the 1st Mortgage transaction and the first three (3) mortgage assignments are barred by the statute of limitations. The limitations periods with respect to the 1st Mortgage, and 2007 and 2010 assignments expired before the Debtor purchased the Property on July 11, 2011. Even if the limitations periods were tolled until the Debtor purchased the Property, they expired on July 11, 2012, almost two (2) years before the Debtor filed this bankruptcy case or this adversary proceeding.
The statute of limitations defense as to the last assignment recorded on July 22, 2013 is more complicated. The assignment occurred less than one (1) year before the filing of the Debtor's bankruptcy case on April 21, 2014, but more than one (1) year before the commencement of the adversary proceeding on November 30, 2014. Under 11 U.S.C. § 108(a), the limitations period for a debtor's claim that has not expired as of the commencement of the case is extended to the later of the limitations period under applicable nonbankruptcy law or two (2) years after the order for relief. If § 108(a) applies, the Debtor's claim is timely filed with respect to the last assignment. However, there is a division of authority whether a chapter 13 debtor may invoke the benefits of 11 U.S.C. § 108(a). Compare In re Johnson, 2009 WL 2259088, at *2-3 (Bankr.S.D.Ill. July 29, 2009), with In re McConnell, 390 B.R. 170, 180 (Bankr.W.D.Pa. 2008); In re Gaskins, 98 B.R. 328, 330 (Bankr.E.D.Tenn.1989). I do not decide that issue because I dismiss this claim on other grounds.
Fed. R. Bankr.P. 3012 provides:
In filing the adversary proceeding, Bank of America was provided with more formal process and procedural safeguards than a mere motion. It would exalt form over substance to dismiss this action and compel the Debtor file a motion under Rule 3012.
