William R. Sawyer, United States Bankruptcy Judge.
This Chapter 13 case came before the Court for an evidentiary hearing on the objection to confirmation of plan filed by 21
In 2007, Debtor Jason Allen Hubbard purchased a mobile home, financing the purchase price and related costs in the amount of $47,399.00. The indebtedness is secured by a security interest in the mobile home and a mortgage on the land upon which the mobile home sits, in Chambers County, Alabama. The loan went into default and, on April 13, 2016, the Bank conducted a foreclosure sale on the land, at which time it purchased the property. On May 13, 2016, the Bank brought suit against the Debtor in the Circuit Court of Chambers County, Alabama, seeking to eject the Debtor from the property.
The Debtor filed a petition in bankruptcy pursuant to Chapter 13 of the Bankruptcy Code on October 19, 2016. The Debtor did not file a Chapter 13 Plan within 14 days of the date of the petition as required by Bankruptcy Rule 3015. On November 9, 2016, the Clerk sent a Notice of Dismissal, providing that the case would be dismissed in 21 days unless a Plan was filed. (Docs. 6, & 10). On November 28, 2016, the Debtor filed a Plan. (Doc. 12). On November 29, 2016, the Debtor filed an Amended Plan. (Doc. 13). Neither Plan contains a Certificate of Service showing that it had been served on parties in interest as required by Local Rule 3015-1. Both the Bank and the Trustee have filed objections to the Plan. (Docs. 17 & 22).
The Debtor proposes to "cure and maintain" the indebtedness to the Bank under his Plan. (Doc. 13). The Bank objects contending that the Debtor's right to "cure and maintain" terminated at the time of the foreclosure sale. The Debtor responds, contending that there is no valid foreclosure sale and, therefore, he still has a right to "cure and maintain" under the Code. In
The Court does not accept the Debtor's testimony concerning his nonreceipt of notices from the Bank. The Bank offered evidence of mailings made September 28, 2015, March 8, 2016, and April 19, 2016, (Bank Exhibits 6, 8, & 13), all of which pertain to default and foreclosure. The notices were all properly addressed and the Court accepts the proffer of the testimony of the Bank representative that they were duly mailed at the time they were prepared. Indeed, the Debtor did not dispute that the notices were prepared and mailed as represented by the Bank. The Debtor testified that he has a mailbox at his residence and that he receives mail addressed to him. Nevertheless, the Debtor contends he did not receive the notices. Having examined the documents, having heard the testimony of the Debtor and his wife and having considered their demeanor, the Court rejects the Debtor's contention that he did not receive the notices sent by the Bank and their lawyers.
This Court has jurisdiction to hear this proceeding pursuant to 28 U.S.C. § 1334. This is a core proceeding. 28 U.S.C. § 157(b)(2)(L). This is not a final order.
Chapter 13 of the Bankruptcy Code permits an individual to file a plan to pay his debts, or a portion of his debts over time, and keep his property.
Prior to 1994, the Code did not state when a debtor lost his right to cure and maintain. In 1994, Congress amended the Code, adding § 1322(c)(1), which provides as follows:
11 U.S.C. § 1322 (c)(1) (emphasis added).
Thus, it is clear enough under the Code as it now stands that a debtor may not cure a mortgage delinquency after the property is "sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law."
In this case, the Bank has offered evidence that it properly conducted its foreclosure sale on April 13, 2016. (Bank Ex. 12). As the Debtor did not file his petition in this case until October 19, 2016, six months after the foreclosure sale, he may not "cure and maintain" the mortgage delinquency provided that the sale was conducted in accordance with applicable nonbankruptcy law. If the foreclosure sale conducted by the Bank in this case, was
The procedural posture at Chapter 13 confirmation determines who carries the burden of proof. The debtor bears the burden of proof on the question of whether his plan should be confirmed.
When a creditor files an objection to confirmation of a Chapter 13 Plan, it bears the burden as to any issues raised in its objection.
However, the Debtor argues that the foreclosure was not conducted in accordance with Alabama law as notice of the sale was not personally served on the Debtor. The Debtor cites no law supporting this contention and the Court is aware of none.
The Bank objects to the Debtor's Plan, contending that he may not cure and maintain the mortgage as the property was sold, in accordance with applicable nonbankruptcy law, at a foreclosure sale prior to the bankruptcy filing. The Debtor contends that the sale was not valid as notice of the sale was not personally served on him. As the Debtor has not cited any authority for
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