BRUCE A. HARWOOD, Chief Bankruptcy Judge.
The Court has before it the Motion to Determine Secured Status and Void Wholly Unsecured Lien Under 11 U.S.C. §§ 1322(b)(2) and 506(a) (Doc. No. 23) (the "Motion") filed by David Harry Robinson, Sr. and Kathleen Frances Robinson, the debtors in the above-captioned chapter 13 proceeding (the "Debtors"), through which they seek to void the second mortgage lien held by Merrimack Valley Federal Credit Union (the "Bank") against their primary residence. More specifically, pursuant to the Motion, the Debtors seek to determine the secured status of the Bank's claim under 11 U.S.C. § 506(a)
Upon consideration of the appraisals submitted and testimony given, the Court concludes that the Debtors' property is worth more than $278,264.84, the amount of the Bank's first mortgage, triggering the anti-modification provision of § 1322(b)(2) with respect to the Bank's second mortgage. Accordingly, since the Court determines that the value of the Debtors' property exceeds the debt owed on the first mortgage, the Bank's junior lien remains unaffected, riding through the bankruptcy proceeding, and the Debtors' Motion must, therefore, be denied.
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and Local Rule 77.4(a) of the United States District Court for the District of New Hampshire. This is a core proceeding in accordance with 28 U.S.C. § 157(b).
The Debtors' real estate, which is their primary residence, is located at 683 Browns Ridge Road, Wolfeboro, New Hampshire (the "Property"). The Property is located in the northern part of the Town of Wolfeboro, within close proximity to Route 16. The Debtors' street forms part of the border between Wolfeboro and neighboring Ossipee. The Property was built in 2000 and sits on 7.89 acres. It is a one and three-quarter story cape with an attached two-car garage, front farmer's porch, and screened-in back porch. The Property also has a three room in-law apartment located above the garage, which is accessed from the interior of the residence. The lot is a legal, non-conforming parcel with three hundred feet of frontage and one thousand feet of depth. The Property is on a ridge, with a mountain view across a valley from the back of the lot. There is also an electric line easement running through the rear of the Property.
According to both the Debtors' and the Bank's appraisers, the condition of the Property and the quality of construction of the dwelling are average, and the lot's long, narrow shape affects its utility and diminishes the value of the otherwise large, multi-acre lot. Agreement between the appraisers ends on these points, however, as they differ vastly regarding some of the other most basic attributes of the Property, including the number of rooms and the size of the gross living area. The Debtors' appraiser contends the Property has seven rooms, consisting of three bedrooms and two and one-half baths, with 2,441 square feet of gross living area. The Bank's appraiser submits that the Property has ten rooms, including four bedrooms and three and one-half baths, with 3,187 square feet of gross living area.
The Property is subject to first and second mortgages held by the Bank. On or about December 14, 2005, the Debtors executed and delivered to the Bank a note in the original principal amount of $255,000.00 and a mortgage on the Property, which was recorded in the Carroll County Registry of Deeds at Book 2491, Page 587 ("First Mortgage"). On or about May 17, 2008, the Debtors executed and delivered to the Bank a second note in the original principal amount of $30,000.00 and a mortgage on the Property, which was recorded in the Carroll County Registry of Deeds at Book 2716, Page 330 ("Second Mortgage").
The Debtors sought relief under chapter 13 of the Bankruptcy Code on August 5, 2014 (the "Petition Date"). On their Schedule D, the Debtors valued the property at $265,000.00. The Debtors had previously filed another chapter 13 case on April 1, 2010, Bankruptcy Case No. 10-11475-JMD (the "Prior Bankruptcy"). In that case, the Debtors valued the Property at $390,000.00 in their schedules, and made fifty-one of sixty monthly payments under a confirmed chapter 13 plan that addressed the arrearages of both the First and Second Mortgages. The Court dismissed the Prior Bankruptcy pursuant to an order dated July 23, 2014 (Doc. No. 44), upon the Debtors' Ex Parte Motion for Voluntary Dismissal (Doc. No. 43). The Debtors refiled for bankruptcy protection less than two weeks later.
At the time of the Debtors' current bankruptcy filing, they owed $278,264.84 on the First Mortgage and $21,716.59 on the Second Mortgage, as reflected in two proofs of claim filed by the Bank, POC Nos. 1-2 and 2-1, respectively.
In addition to the disagreement between the parties and their experts regarding the Property's room composition and gross living area, and partly as a result of those divergent factors, the parties also disagree considerably as to the underlying value of the Property. The Debtors contend the Property was worth $276,300.00 as of August 29, 2014, pursuant to an appraisal performed by Peter E. Stanhope ("Stanhope" or the "Debtors' Expert") dated September 15, 2014 ("Debtors' Appraisal"). The Bank contends the Property was worth $377,000.00 as of February 13, 2015, pursuant to an appraisal performed by George F. Brooks, III ("Brooks" or the "Bank's Expert") dated February 20, 2015 ("Bank's Appraisal"). Presently, the Property is tax assessed by the Town of Wolfeboro at $367,700.00 and was assessed at $370,000.00 in 2010. The Debtors did not provide any evidence that they ever sought an abatement of their property taxes based on the Town's valuation.
In order to void the Second Mortgage lien, the Debtors seek a finding pursuant to
In terms of timing regarding the amount of the Bank's claim for valuation purposes, the amount of the claim is fixed as of the Petition Date per § 502(b), which provides that "[t]he court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition." 11 U.S.C. § 502(b). As the Court concluded in
With respect to the date of valuation of the collateral, § 506(a) provides a court with discretion to value the property looking to the "purpose of the valuation," and how the property is to be used. 11 U.S.C. § 506(a). These determinations are to be made "in conjunction with" any hearing relating to the use of the property or a plan that will affect a "creditor's interest" in the property.
Furthermore, the Debtors have the burden to prove that they are entitled to strip off a lien from their principal residence.
At the evidentiary hearing on the Motion, each party presented valuation evidence through the testimony and appraisal report of their respective licensed appraiser. The appraisers used the same methodology for valuing the Property, the sales comparison approach, both concluding that the cost and income approaches were inappropriate measures regarding the Property.
Both appraisers also had equivalent qualifications and significant experience in appraising residential real estate, as well as knowledge of the market and the Property. While both witnesses were well-qualified, in the Court's view, each also disregarded or did not adequately consider material components associated either with the Property or the comparable sales used in determining the value of the Property. The question, therefore, is which appraisal came closest to the true value of the Debtors' principal residence despite each of their significant shortcomings.
The parties are $100,700.00 apart in their valuations, the Debtors' Expert valuing the Property at $276,300.00 and the Bank's Expert valuing it at $377,000.00. Given that the value of the Property must be $278,264.84 or less in order for the Court to find in favor of the Debtors, an extremely narrow margin of $1,964.84 (0.17%) already exists between the Debtors' asserted Property value and the amount owed on the First Mortgage. Similar to the Fournier matter, the Court essentially would need to completely discount the testimony of the Bank's Expert under these circumstances.
The Debtors' Expert testified that the value of the Property was $276,300.00 as of August 29, 2014, based on a comparable sales analysis. He examined three properties as being comparable to the subject. Comparable Sale 1, an eight room, three bedroom, two and one-half bath property on 1.89 acres, is located at 429 North Line Road, Wolfeboro. That sale had closed as of November 1, 2013 and was the oldest sale he considered. Comparable Sale 2, a nine room, four bedroom, two bath property on 2.57 acres, is located at 501 Beach Pond Road, Wolfeboro and closed on June 20, 2014. Comparable Sale 3, a nine room, four bedroom, three and one-half bath property on 4.34 acres, is located at 6 Chandler Road, Tuftonboro. Its sale also closed on June 20, 2014.
Stanhope made various adjustments to his comparable sales as set forth in the following table:
In determining his comparable sales, Stanhope testified that location was a primary factor, choosing two properties in Wolfeboro and one in Tuftonboro, New Hampshire.
With respect to lot size, the comparables used by Stanhope all had much smaller lot sizes than the Property. More specifically, the lot sizes and deviation from the Property are as follows: Comparable Sale 1 (1.89 acres, 76% smaller); Comparable Sale 2 (2.57 acres, 67% smaller); and Comparable Sale 3 (4.34 acres, 45% smaller). Stanhope made upward adjustments of $6,000.00, $5,000.00, and $3,000.00, respectively, for the smaller lots. Stanhope testified that the Property's lot size, although large at 7.89 acres, did not have as much utility as a lot with a one-to-one ratio of frontage and depth, given its long and narrow "bowling alley" configuration of 300 feet of frontage and a depth of 1,000 feet. Accordingly, Stanhope testified that use of comparable sales with smaller lot sizes was appropriate, because they were of comparable utility to the Property's lot.
Stanhope also stated in his report that the Property consisted of seven rooms and 2,441 square feet of gross living area, determining not to include the finished in-law quarters — which consisted of three rooms and approximately 840 square feet — in either the room count or the gross living area.
Based on his exclusion of the in-law apartment, Stanhope used comparable sales consisting of properties ranging in size from 2,233 square feet to 2,578 square feet. Presumably because he excluded the in-law apartment and calculated the Property's living area as being only 2,441 square feet, he made a downward adjustment of $3,400.00 with respect to Comparable Sale 3 (with 2,578 square feet of living area). Furthermore, he made an upward adjustment of $5,200.00 for Comparable Sale 1, the smallest property analyzed (at 2,233 square feet). While Stanhope did not make any living area adjustments to Comparable Sale 2, he did make an upward adjustment of $2,000.00 based on the room count. Stanhope also made a downward adjustment of $3,000.00 to Comparable Sale 3 for the room count. Excluding Comparable Sale 2, which had no living area adjustment (even though the property appears to be 75 square feet bigger than the 2,441 square foot starting number he was using), Stanhope uses a $25.00 per square foot multiplier for gross living area discrepancies between the comparable sales and the Property.
In its Objection, the Bank challenged the use of these comparable sales given the considerably smaller lot sizes and the use of a location outside of Wolfeboro for Comparable Sale 3, but did not comment on the discrepancy in gross living area.
The Bank's Expert testified that the value of the Property was $377,000.00 as of February 13, 2015,
Comparable Sale 1, a nine room, four bedroom, three and one-half bath property on 1.3 acres, is located at 4 Wiggin Road, Wolfeboro, and sold on September 26, 2014. Comparable Sale 2, a nine room, five bedroom, three and one-half bath property on 1.95 acres, is located at 81 Sewall Road, Wolfeboro, which sold on September 5, 2014. Comparable Sale 3, a ten room, three bedroom, two and one-half bath property on 2.08 acres, is located at 21 Armstrong Road, Wolfeboro, which sold on January 7, 2015. Comparable 4, a seven room, three bedroom, two and one-half bath property located on 5 acres, is located on 63 Upper Trask Mountain Road, Wolfeboro, which sold on September 30, 2014. The closest site to the Property out of both the Debtors' and Bank's comparable sales is the Bank's Comparable Sale 4, which is only 1.16 miles away. The Bank's Comparable Sales 1, 2, and 3 were all in excess of eight miles from the Property (8.19, 8.53, and 8.13 miles away, respectively).
Brooks made the following adjustments to his comparable sales as set forth in the following table:
Unlike Stanhope, Brooks made no adjustment for differences in age between the Property and any comparable sales. Additionally, only with respect to Comparable Sale 4 did Brooks make any adjustment for location and view. With respect to the gross living areas of the comparable sales examined by Brooks, they ranged from 2,432 square feet to 3,152 square feet and in each instance upward adjustments were made.
Brooks also chose comparable sales that were situated on lots that are significantly smaller than the Property. The lot sizes he used and the deviation in size from the subject Property are as follows: Comparable Sale 1 (1.30 acres, 84% smaller), Comparable Sale 2 (1.95 acres, 75% smaller), Comparable Sale 3 (2.08 acres, 74% smaller), and Comparable Sale 4 (5.00 acres, 37% smaller). Unlike Stanhope, however, Brooks made no upward adjustments for the lot size discrepancies. Brooks did testify, however, that the use of the comparable sales on considerably smaller lots was appropriate because, given the depth issue with the Property, the smaller lots he examined had similar utility to the Property despite their size discrepancy.
Stanhope challenged the comparable sales used by Brooks, disagreeing with his decision not to make location adjustments, several of his view adjustments, and quality adjustments. He testified that the properties Brooks included had attributes that were far superior to the Property and which were not properly accounted for. In particular, Stanhope testified that the weight that Brooks placed on the quality of the Property's view was unfounded, stating that the view was compromised by a power line easement and deciduous growth in the summer months. Brooks was unable to challenge this assertion because he only visited the property during a time when there was significant snow cover, limiting his ability to fully view the rear of the Property other than by taking photographs from each side of the house. Also, Stanhope discounted Comparable Sales 1 and 2 because they were described as being in very close proximity to Lake Winnipesaukee and, therefore, were properly part of Wolfeboro's Lake submarket, which generated higher sale values than what Stanhope viewed as the more rural northern Wolfeboro market in which the subject Property sits.
As the Court noted earlier, both experts testified credibly, but there were certain challenges to the assumptions used by both of them and the quality of the comparable sales chosen. Accordingly, the Court does not give equal weight to the values of the comparable sales of the parties and both need further adjustments made by the Court.
Of the comparable sales utilized by Stanhope, the Court disregards the use of a location outside of Wolfeboro and determines that of the remaining two properties, Comparable Sale 2 is the most similar to the Property and provides the Court with the Debtors' best indicator of value, subject to further adjustments. Comparable Sale 2 is a cape that is the same age as the Property. Although Stanhope made numerous adjustments based on its location, view, lot size, room count, condition, and its various amenities (such as a finished basement, patio/deck, and fireplace), the Court shall take those adjustments as a starting point as this is still the most similar option to the Property among Stanhope's comparable sales.
Furthermore, of the comparable sales utilized in the Bank's assessment of value, the Court concludes that Brooks' Comparable Sale 3 provides the Court with the Bank's best assessment of value because the Court finds that the other comparable sales used by the Bank are less similar to the Property than Sale 3. Although there were numerous adjustments made by Brooks based on its lot size, room count, and its various amenities (such as a larger garage, superior porch, and fireplace), the Court again uses the adjustments made as a starting point as this is still the most similar option to the Property among Brooks' comparable sales.
The relevant characteristics of these two comparable properties are as follows:
Both comparable sales, however, require further adjustment to value given the material issues previously noted by the Court. The Court, therefore, will combine the characteristics of these two comparables to make a hybrid comparable property using the Debtors' and Bank's experts own adjustment values. Where each expert made different adjustments to the same feature, the Court will average the values to determine the proper adjustment value. Additionally, where one expert did not consider a factor as being applicable, the Court will make an assessment whether some adjustment should have been made given the testimony provided.
Additionally, given the gross living area discrepancies, the gross living area calculation will be further adjusted in order to obtain an accurate assessment of value. Both appraisers used different per square foot multipliers when adjusting the gross living area. Stanhope applied different multipliers to adjust for the differences in gross living area for his three properties without testifying as to the rationale for the discrepancy. With respect to Comparable Sale 2, he chose not to apply any multiplier at all, even though the property was 75 square feet larger than the 2,441 square foot number he used. Brooks used a $40.00 per square foot multiplier to adjust for the difference in size between the Property and Comparable Sale 3. These multipliers used by the appraisers are far apart and have no utility in determining an approximate, accurate value for the Property. Accordingly, the Court will instead average the sale price per square foot for each of the comparable properties as they are closer in value, which results in a multiplier of $130.02.
Upon application of the adjustments discussed and resolution of disputed features of the Property, the Court concludes that the adjusted sales price of the Property, once the hybrid comparable is taken into account, is as follows:
Accordingly, the Court's adjusted value of $365,373.74 exceeds the $278,264.84 balance due on the First Mortgage.
The Court concludes that the Property is worth in excess of the $278,264.84 value of the Bank's First Mortgage on the Petition Date. Accordingly, the Debtors' Motion must be denied because the anti-modification provision of § 1322(b)(2) applies with respect to the Bank's Second Mortgage and the Debtors cannot avoid the Bank's Second Mortgage residential lien. This opinion constitutes the Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this opinion.