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In re Walker

United States District Court, E.D. Louisiana

February 6, 2015

IN RE: TIFFANY WALKER

For Bank of America, National Association, 14-1574, Bank of America, National Association, 14-1575, Bank of America, National Association, 14-1576, Consol Appellants (2:14-cv-01505): Joseph Paul Rumage, Jr., LEAD ATTORNEY, Law Office of Herschel C. Adcock, Jr., Baton Rouge, LA; Craig Goldblatt, Nancy L. Manzer, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Washington), Washington, DC; Karlene Aiken, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Boston), Boston, MA.

For Tiffany Stevens Walker, 14-1574, Tiffany Stevens Walker, 14-1575, Tiffany Stevens Walker, 14-1576, Consol Appellees (2:14-cv-01505): Trenton A. Grand, LEAD ATTORNEY, Jonathan Randall DeTrinis, Grand Law Firm, Baton Rouge, LA.

For S. J. Beaulieu, Jr., Consolidated member case 14-1574, S. J. Beaulieu, Jr., Consolidated member case 14-1575, S. J. Beaulieu, Jr., Consolidated member case 14-1576, Trustees (2:14-cv-01505): Andrew H. Wiebelt, II, LEAD ATTORNEY, Andrew H. Wiebelt, II, Attorney at Law, Metairie, LA.

U.S. Trustee, Consolidated member case 14-1574, Trustee (2:14-cv-01505), Pro se, New Orleans, LA.

U.S. Trustee, Consolidated member case 14-1575, Trustee (2:14-cv-01505), Pro se, New Orleans, LA.

U.S. Trustee, Consolidated member case 14-1576, Trustee (2:14-cv-01505), Pro se, New Orleans, LA.

For Bank of America NA, Appellant (2:14-cv-01574): Joseph Paul Rumage, Jr., LEAD ATTORNEY, Law Office of Herschel C. Adcock, Jr., Baton Rouge, LA; Craig Goldblatt, Nancy L. Manzer, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Washington), Washington, DC; Karlene Aiken, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Boston), Boston, MA.

For Tiffany Stevens Walker, Appellee (2:14-cv-01574): Trenton A. Grand, LEAD ATTORNEY, Grand Law Firm, Baton Rouge, LA.

For S. J. Beaulieu, Jr., Trustee (2:14-cv-01574): Andrew H. Wiebelt, II, LEAD ATTORNEY, Andrew H. Wiebelt, II, Attorney at Law, Metairie, LA.

U.S. Trustee, Trustee (2:14-cv-01574), Pro se, New Orleans, LA.

For Bank of America NA, Appellant (2:14-cv-01575): Joseph Paul Rumage, Jr., LEAD ATTORNEY, Law Office of Herschel C. Adcock, Jr., Baton Rouge, LA; Craig Goldblatt, Nancy L. Manzer, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Washington), Washington, DC; Karlene Aiken, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Boston), Boston, MA.

For Tiffany Stevens Walker, Appellee (2:14-cv-01575): Trenton A. Grand, LEAD ATTORNEY, Grand Law Firm, Baton Rouge, LA.

For S. J. Beaulieu, Jr., Trustee (2:14-cv-01575): Andrew H. Wiebelt, II, LEAD ATTORNEY, Andrew H. Wiebelt, II, Attorney at Law, Metairie, LA.

U.S. Trustee, Trustee (2:14-cv-01575), Pro se, New Orleans, LA.

For Bank of America NA, Appellant (2:14-cv-01576): Joseph Paul Rumage, Jr., LEAD ATTORNEY, Law Office of Herschel C. Adcock, Jr., Baton Rouge, LA; Craig Goldblatt, Nancy L. Manzer, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Washington), Washington, DC; Karlene Aiken, PRO HAC VICE, Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Boston), Boston, MA.

For Tiffany Stevens Walker, Appellee (2:14-cv-01576): Trenton A. Grand, LEAD ATTORNEY, Grand Law Firm, Baton Rouge, LA.

For S. J. Beaulieu, Jr., Trustee (2:14-cv-01576): Andrew H. Wiebelt, II, LEAD ATTORNEY, Andrew H. Wiebelt, II, Attorney at Law, Metairie, LA.

U.S. Trustee, Trustee (2:14-cv-01576), Pro se, New Orleans, LA.

Page 188

ORDER AND REASONS

LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

Before the Court is a consolidated appeal[1] filed by Bank of America NA (" Bank of America" or " appellant" ) of two orders of the U.S. Bankruptcy Court in In re Walker, Bankr. Pet. No. 13-13039 (May 15, 2014).[2] The debtor in the bankruptcy proceedings, Tiffany Stevens Walker (" debtor" ), has filed an opposition.[3] For the following reasons, the orders[4] of the U.S. Bankruptcy Court are AFFIRMED.

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BACKGROUND

Debtor filed a petition seeking Chapter 13 bankruptcy protection on November 1, 2013,[5] initially asserting in her proposed Chapter 13 plan that she was $35,000.00 behind on her mortgage payments to appellant.[6] Appellant objected to the plan on January 27, 2014, asserting that debtor was actually $49,831.98 in arrears.[7] Debtor apparently disagreed, as she filed a proof of claim on appellant's behalf on March 14, 2014, asserting a total amount of arrearage of $20,000.00.[8] Debtor also amended her Chapter 13 plan three times, and each amended plan provided for $20,000.00 in arrears owed to appellant.[9] Appellant did not file its own proof of claim before the March 17, 2014 bar date,[10] and it did not object to the proof of claim that debtor filed on its behalf.

On April 1, 2014, appellant filed an objection to debtor's amended plan, this time asserting that debtor was actually $50,589.96 in arrears.[11] On the same date, appellant filed a motion for leave to file an after-bar-date amended proof of claim,[12] which was opposed by debtor and the trustee.[13] At a hearing on May 14, 2014, the bankruptcy court denied appellant's motion for leave to file an amended proof of claim after the bar date, overruled appellant's objections to debtor's plan, and confirmed the plan.[14] Appellant timely appealed the bankruptcy court's order denying the motion for leave to file an amended proof of claim[15] and the order confirming debtor's Chapter 13 plan.[16]

STANDARD OF REVIEW

When reviewing the bankruptcy court's determination of whether to allow or disallow a proof of claim and whether to confirm a debtor's Chapter 13 plan, both of which are " core" bankruptcy proceedings,[17] " the district court is bound to review the bankruptcy court's decision under the same standards that [an appellate court applies] to an ordinary district court opinion." Coston v. Bank of Malvern (In re Coston), 991 F.2d 257, 261 n.3 (5th Cir. 1993) (citing Griffith v. Oles (In re Hipp, Inc.), 895 F.2d 1503, 1517 (5th Cir. 1990)). When reviewing the bankruptcy court's findings of fact, the district court applies the clearly erroneous standard. AT& T Universal Card Servs. v. Mercer (In re Mercer), 246 F.3d 391, 402 (5th Cir. 2001) (en banc). " If a finding is not supported by substantial evidence, it will be found to be clearly erroneous." Westcap

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Enters. v. City Colleges of Chi. (In re Westcap Enters.), 230 F.3d 717, 725 (5th Cir. 2000) (internal quotation marks omitted). A bankruptcy court's factual findings will be reversed only if, after considering all of the evidence, the appellate court is " left with the definite and firm conviction that a mistake has been committed." In re Luhr Bros., Inc., 325 F.3d 681, 684 (5th Cir. 2003) (internal quotation marks omitted); Norris v. First Nat'l Bank in Luling (In re Norris), 70 F.3d 27, 29 (5th Cir. 1995). " Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." In re Luhr Bros., 325 F.3d at 684.

The district court reviews the bankruptcy court's conclusions of law and mixed questions of fact and law de novo. Universal Seismic Assocs., Inc. v. Harris County (In re Universal Seismic Assocs., Inc.), 288 F.3d 205, 207 (5th Cir. 2002); In re Mercer, 246 F.3d at 402; Century Indem. Co. v. Nat'l Gypsum Settlement Trust (In re National Gypsum Co.), 208 F.3d 498, 504 (5th Cir. 2000). " 'When reviewing mixed questions of law and fact, [we] reverse only if the findings are based on a misunderstanding of the law or a clearly erroneous view of the facts.'" Nationwide Mut. Ins. Co. v. Dunning, 252 F.3d 712, 716 (5th Cir. 2001) (quoting Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 966 (5th Cir. 2001)).

Decisions that are within the bankruptcy court's discretion or decisions based upon equitable grounds are reviewed for abuse of discretion. See In re Coastal Plains, 179 F.3d 197, 205 (5th Cir. 1999); Kolstad, 928 F.2d at 173. However, " '[t]he abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" Coastal Plains, 179 F.3d at 205 (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

DISCUSSION

I. Denial of Leave To File an Amended Proof of Claim After the Bar Date

The parties agree, and the Fifth Circuit has established, that a bankruptcy court has the discretion to allow a creditor to amend a debtor-filed proof of claim after the bar date pursuant to its equitable powers.[18] See Kolstad, 928 F.2d at 175; see also 11 U.S.C. § 105(a) (" The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." ). [19] The question before the Court is whether the bankruptcy court abused its discretion. See Kolstad, 928 F.2d at 175.

In Kolstad, the Fifth Circuit reviewed the bankruptcy court's decision (affirmed by the district court) to allow the IRS an opportunity to file an amendment to the debtor's timely filed proof of claim after the bar date had passed. See Kolstad, 928 F.2d at 172. The Fifth Circuit noted that courts often consider five factors when determining whether to allow such an amendment: (1) whether the debtors and creditors relied upon the earlier proof of claim or whether they had reason to know that later proofs of claim would

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follow; (2) whether the other creditors would receive a windfall to which they are not entitled if the court disallowed the amendment; (3) whether the creditor intentionally or negligently delayed in filing the proof of claim stating the amount owed; (4) the justification, if any, for the creditor's failure to request an extension of time for the submission of further proofs pending an audit; and (5) whether any other equitable consideration should be taken into account. Id. at 175 n.7. " [T]hese considerations are overlapping and seem to subsume two general questions: (1) whether [the creditor] is attempting to stray beyond the perimeters of the original proof of claim and effectively file a 'new' claim that could not have been foreseen from the earlier claim or events such as an ongoing or recently commenced audit; and (2) the degree and incidence of prejudice, if any, caused by [the creditor]'s delay." Id.

Appellant argues that its proposed amended proof of claim was " not a new claim" but " merely a correction of the amount listed on the proof of claim Debtor filed on Bank of America's behalf," [20] that " the amendment would not be unfair to other creditors," [21] and that " permitting the amendment of the claim clearly would have caused no surprise to any party." [22] However, in its briefing before this Court, appellant does not offer any justification for its failure to timely file an amended proof of claim or its failure to seek leave for additional time within which to do so.[23]

In its motion before the bankruptcy court, appellant stated only that it " requires that all Proof of Claims go through an internal approval process by its office to assure accuracy of the claim before Counsel for Creditor can file [the] same into the claims register." [24] The bankruptcy court found that this explanation was unsatisfactory,[25] and it concluded that it would not " let the internal procedures of Bank of America govern when proofs of claim are filed or when they're to be amended." [26] In the absence of any substantial justification by appellant for its failure to timely amend the debtor-filed proof of claim, this Court does not find that the bankruptcy court abused its discretion in denying leave to file an untimely amendment.

Appellant argues that the bankruptcy court's denial of its motion for leave to amend " will result in limiting the amount of [a secured creditor's claim] to whatever amount the Debtor alleged" if such secured creditor chooses not to file a proof of claim.[27] Such argument ignores the fact that appellant had ample opportunity to protect its rights.

Debtor claimed a lower amount of arrearages in her first proposed plan on November 1, 2013,[28] and appellant had more than four-and-a-half months between the initial bankruptcy filings and the bar

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date in which to confer with debtor's counsel[29] and/or file its own proof of claim. Appellant's status as a secured creditor does not absolve it of its responsibility to diligently protect its claim and abide by the bankruptcy court's deadlines. The Court does not interpret Kolstad to permit a secured creditor to ignore deadlines at will and without justification.

II. Confirmation of the Bankruptcy Plan

Appellant also argues that the bankruptcy court erred in confirming the debtor's plan in light of the dispute over the amount of arrearages.[30] Appellant argues that the plan does not comply with the bankruptcy code because the plan: (1) does not fully cure debtor's default (but rather only accounts for $20,000.00 in arrearages) in violation of 11 U.S.C. § 1322(b)(5); [31] (2) modifies appellant's secured claim on debtor's primary residence in violation of 11 U.S.C. § 1322(b)(2); [32] and (3) ultimately may result in the discharge of a portion of otherwise nondischargeable debt in violation of 11 U.S.C. § 1328(a)(1).[33]

Appellant's argument turns on the proper amount of arrearages--if the bankruptcy court's finding[34] of a $20,000.00 total arrearage is clearly erroneous, then the plan does not comply with the above sections and it was not confirmable pursuant to 11 U.S.C. § 1325.[35] However, if the finding that debtor was $20,000.00 in arrears is not clearly erroneous, then the plan complies with the bankruptcy code and it was properly confirmed.

Page 193

Appellant filed two objections to confirmation, first asserting that debtor was in default with $49,831.98 in arrears,[36] and later asserting that the arrearage was $50,589.96.[37] Appellant attached the mortgage and note to each of the objections,[38] but it did not include with its objections any documentation related to past-due or missed payments.[39]

Having rejected appellant's request to untimely file an amended proof of claim, the bankruptcy court was not presented with any evidence to support appellant's asserted amount of arrearages other than appellant's bare assertions. On the other hand, " [a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." Fed. R. Bankr. P. 3001(f); see 11 U.S.C. § 502(a) (" A claim or interest, proof of which is filed under section 501 of this title,[40] is deemed allowed, unless a party in interest . . . objects." ).[41] The mortgage and note, which were the only documents attached to appellant's objections, say nothing about the total amount and timing of any past-due or missed payments, and such evidence does not rebut debtor's assertion in the sworn proof of claim that she filed on appellant's behalf that she was $20,000.00 in arrears. Accordingly, the bankruptcy court did not clearly err in confirming the plan over appellant's objections.

Appellant contends that it was punished for failing to file a proof claim.[42] However, appellant's failure to file a proof of claim is separate from its failure to provide the necessary documentation in support of its

Page 194

objections to the plan. Had appellant attached that information to its objections, the lack of a proof of claim would have been irrelevant because its supporting documentation would have been in the record. The fact that appellant was less than diligent in supporting its objection does not provide a basis for finding clear error on the part of the bankruptcy court which made a permissible ruling based on the evidence it had before it.

CONCLUSION

For the foregoing reasons,

IT IS ORDERED that the bankruptcy court's rulings are AFFIRMED. Judgment shall be entered in favor of appellee, Tiffany Stevens Walker, DISMISSING the consolidated appeal filed by appellant, Bank of America NA.

JUDGMENT

Considering the record, the order and reasons entered on this date, and the law, for the reasons assigned,

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of appellee, Tiffany Stevens Walker, AFFIRMING the orders of the U.S. Bankruptcy Court entered on May 15, 2014, and DISMISSING the appeal filed on behalf of appellant, Bank of America NA, with costs.


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