A.

The legal principles regarding the parties' respective burdens in connection with an objection to a proof of claim are well established:

In re Henry, 546 B.R. 633, 634-35 (Bankr. E.D. Pa. 2016) (quotations and citations omitted) (emphasis in original).

B.

In Claim No. 5, the Claimant asserted that the prepetition arrears on this residential mortgage loan are $21,982.64. The Mortgage Attachment to the Proof of Claim (which also includes a loan history) breaks down the claimed arrears as follows:

The Mortgage Attachment also states that the monthly mortgage payment for principal and interest is $485.48 (an amount not disputed by the Debtor). Thus, the Claimant has asserted that the mortgage loan was twenty-one (21) months delinquent as of the commencement of the bankruptcy case ($10,105.08 in arrears of principal and interest divided by $484.48).

The Mortgage Attachment also indicates that the prepetition monthly payment (including escrow) was $649.00. Thus, the Debtor's regular, prepetition mortgage payment included $163.52 for escrow (i.e., taxes and insurance) ($649.00 minus $484.480).

The Debtor asserts in her post-hearing brief that the regular, prepetition monthly mortgage payment actually was higher, $670.04 per month. If so, the escrow component of the prepetition monthly payments was $185.56, which is $22.04 higher. However, the Debtor offered no evidence in support of her allegation that the prepetition regular monthly mortgage payment was $670.04. Consequently, I will accept the Claimant's assertion (in the form of the Mortgage Attachment to its Proof of Claim filed under oath) that the prepetition mortgage payment was $649.00.

C.

In her Objection, the Debtor disputes the accuracy of the amounts claimed for the escrow deficiency. The Debtor argues

I disagree.

There is no reason why the delinquency for missed principal and interest payments and escrow payments cannot be considered separately, so long as the amount of the regular monthly mortgage payment attributable to each is known. See https://www.britannica.com/topic/distributive-law (under the distributive law of mathematics a(b+c) = ab +ac).

Further, the Debtor's suggestion that the prepetition arrears for principal and interest and escrow is limited to the amount of the missed prepetition mortgage payments is incorrect. It is possible that even if all of the prepetition mortgage payments are made, the amounts paid in for escrow fall short of the escrow disbursements. If, under the loan documents, the lender has the right to demand an immediate payment of such a shortfall, this would give rise to a prepetition claim for arrears.

Here, the most plausible interpretation of the Proof of Claim is that the entire escrow deficiency as of the commencement of the case was $5,042.84. This amount would have been reduced by $3,433.92 (21 times $163.52, representing the escrow component of the prepetition regular monthly mortgage payment) had all of the prepetition mortgage payments been made. But, they were not all made; twenty-one (21) payments were missed, which exacerbated the escrow delinquency. There is no double-counting, as the Debtor implies, because the Proof of Claim does not ask for both 21 times the full amount of the prepetition mortgage payment plus the escrow deficiency. The Proof of Claim demands payment of only 21 times the principal and interest component of the prepetition mortgage payment before adding the escrow deficiency. This methodology seems proper.

That said, when a proof of claim employs this methodology, a debtor may still object on the ground that the asserted escrow disbursements are not recoverable under the loan documents or that the calculation of the total amount of the escrow shortfall is inaccurate. But, the Debtor has made no such argument. Nor has the Debtor presented any evidence that the loan history does not support the existence of the asserted $5,042.84 escrow deficiency. In these circumstances, the Debtor has not met her initial burden of production in challenging the prima facie validity of this component of the Proof of Claim. Therefore, the $5,042.84 escrow deficiency component will be allowed.

D.

In her Objection, the Debtor also disputes the accuracy of the $6,748.72 in "prepetition fees" component of the arrearage claim.

The Debtor interprets this component of the Proof of Claim as consisting entirely of legal expenses incurred in prepetition mortgage foreclosure proceedings that resulted in the entry of a default judgment against the Debtor in U.S. Bank N.A. v. Lindsay, No. 15-05-02492 (C.P. Phila.). She argues that this component of the claim should be limited to $328.48, representing the filing fee for the state court mortgage foreclosure action. Citing In re Gordon-Brown, 340 B.R. 751 (Bankr. E.D. Pa. 2006) and 11 U.S.C. §506(b), she contends that the balance of the $6,748.72, which she assumes to be legal fees, should be disallowed.

11 U.S.C. §506(b) provides:

The Debtor contends that the value of the subject mortgaged property is less than the Claimant's claim and therefore, under §506(b), the claim for prepetition legal fees is not allowable.

Initially, I observe that I do not understand why, in making this §506(b) argument, the Debtor has drawn a distinction between prepetition legal costs and prepetition legal fees (arguing that the former is allowable and the latter is not). But, I will accept the Debtor's concession with respect to the legal costs (the foreclosure filing fee).

As for the allowability of the prepetition legal fees, on two (2) independent grounds, I reject the Debtor's contention that all prepetition legal fees should be disallowed.

First, there is nothing in the record that establishes that the underlying claim is undersecured. In support of this contention, the Debtor cites, in her post-hearing brief, her bankruptcy Schedule D, and asks that the court take judicial notice of the information therein. (Schedule D states that the mortgage claim is $113,418.20 and that value of the collateral is $89,000.00).

Although the sworn Schedule D is hearsay, in the absence of an objection it could have been admitted into evidence at the hearing on the Objection. However, the Debtor did not seek to introduce Schedule D into evidence at the hearing. It is improper to seek to introduce additional evidence through a post-hearing memorandum and therefore, it is not part of the evidentiary record for deciding the merits of the Objection. See, e.g., In re Atlantic Med. Management Servs., Inc., 387 B.R. 654, 657 n. 1 (Bankr. E.D. Pa. 2008) (striking exhibits attached to post-hearing brief).

Nor is the information in Schedule D the type of factual matter that is subject to judicial notice. The fact that the Debtor stated in a document filed ain this court that her property had a certain value, if relevant, may be a proper subject of judicial notice. But the truth of the underlying assertion itself is not a proper subject of judicial notice. See In re Mahmud, 2008 WL 8099115, at *6 (Bankr. E.D. Pa. Dec. 4, 2008) (citing and quoting Barry Russell, Bankruptcy Evidence Manual §201-5 (2008 ed.)).

Second, the Debtor misreads Gordon-Brown. That decision does point out that, after the Supreme Court's decision in Rake v. Wade, 508 U.S. 464 (1993) but prior to the enactment of 11 U.S.C. §1322(e) in 1994, the allowance of prepetition counsel fees as part of a claim for prepetition mortgage arrears may be subject to the limitations of 11 U.S.C. §506(b). However, §1322(e), enacted post-Rake, states and makes clear that "the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law." The specific holding in Gordon-Brown is that "state law ... governs the allowance of attorney's fees for prepetition services in a proof of claim for mortgage arrears for mortgage transactions after October 22, 1994." 340 B.R. at 757.

Here, both the Note and Mortgage (attached to the Proof of Claim) are dated June 3, 2008 and provide for the borrower to pay costs and expenses, including reasonable attorney's fees, after a default and acceleration of the underlying debt. The Debtor does not question that these contractual provisions are enforceable under Pennsylvania law. Accord In re W. Chestnut Realty of Haverford, Inc., 186 B.R. 612, 618 (Bankr. E.D. Pa. 1995) ("Pennsylvania law clearly validates contractual shifting of attorney's fees"). Therefore, to the extent that the "prepetition fees" component of the Proof of Claim is based on the Claimant's prepetition legal expenses, I reject the Debtor's argument that they must be disallowed categorically.

Like the escrow issue, the outcome of the Debtor's objection regarding the "prepetition fees" turns largely on the shifting burdens of production and proof in proof of claim litigation. Analysis of the merits of the objection is hampered by the paucity of the record. Without any testimony explaining the loan history, or other evidence or argument to the contrary, I will accept the Debtor's assumption that these charges are entirely for legal expenses. Further, the Claimant has not come forward with any evidentiary support for the claimed legal expenses in the form of time records or testimony. See generally Gordon-Brown, 340 B.R. at 757-58 (reaffirming use of lodestar methodology in allowing prepetition legal fees as part of a claim for prepetition mortgage arrears).

In these circumstances, I will employ same "holistic" approach used in Gordon-Brown. In that case, which also involved a default judgment and a record establishing an entitlement to the allowance of prepetition legal fees in an uncertain amount, I allowed counsel fees of $700.00 based on the likelihood that a routine, uncontested foreclosure would take 3.5 hours of attorney time at $200.00 per hour. Id. at 759.

In this case, however, there are reasons to allow a higher fee. First, Gordon-Brown was decided more than ten (10) years ago. At a minimum, the hourly rate employed should be raised. For present purposes, I will use an hourly rate of $250.00. Second, the docket entries of the Claimant's foreclosure case (which the Debtor has asked me to consider and which are the proper subject ofjudicial notice, see, e.g., In re Soto, 221 B.R. 343, 347 (Bankr. E.D.Pa. 1998)), show that the state court case was not a routine, uncontested foreclosure. The dockets reflect that at least one (1) and perhaps more than one (1) conciliation conferences were held pursuant to the state court's alternative dispute resolution procedures. Undoubtedly, counsel for the Claimant expended additional time participating in the conciliation process.

Based on this record, I will allow $1,750.00 in prepetition legal fees (7 hours at $250.00/hour). With the conceded foreclosure filing fee of $328.48, this results in the allowance of $2,078.48 for "prepetition fees."

E.

Based on the foregoing, prepetition arrears of $17,312.76 are allowed, calculated as follows: