United States District Court, D. Delaware
IN RE ANDREA GENRETTE, Debtor.
BANK OF NEW YORK MELLON TRUST COMPANY, NA, Appellee. ANDREA GENRETTE, Appellant,
HONORABLE MARYELLEN NOREIKA UNITED STATES DISTRICT JUDGE.
before the Court is Appellant's Motion for Emergency
Temporary Injunction (D.I. 31) ("Emergency
Motion"). The Court has considered the answering brief
filed by appellee, the Bank of New York Mellon Trust Company,
National Association as Trustee for Residential Asset
Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through
Certificates Series 2004-RS8 by and through its attorney in
fact Ocwen Loan Servicing, LLC ("Bank of New York")
(D.I. 33), along with Appellant's reply in further
support of the Emergency Motion (D.I. 34). For the reasons
set forth below, the Emergency Motion is denied.
facts relevant to the request for relief are stipulated by
the parties. (Bankr. D.I. 60). Appellant is the owner of real
property located at 4 Westbury Drive, New Castle, Delaware
19720 (the "Property"). Appellant has a mortgage on
the Property owed to Bank of New York.
August 19, 2015, Appellant commenced a Chapter 13 case
(Bankr. D.I. I).Appellant's post-petition payments to
Bank of New York fell into arrears, as Appellant failed to
make full payment of the mortgage for the months of October
1, 2016 through August 1, 2017. Bank of New York filed a
motion for relief from stay on June 29, 2017 (Bankr. D.I. 52)
("Stay Relief Motion").
of the Stay Relief Motion was stayed per an agreed stipulated
order (Bankr. D.I. 59) ("Stipulated Order"). Under
the Stipulated Order, the parties acknowledged the
obligations and Appellant agreed to file within 30 days a
modified Chapter 13 plan to provide a cure for the
post-petition delinquency to payment of arrearages and costs
in the amount of $14, 197.58 (id. at ¶¶
10-12) and additionally to continue to make regular monthly
payments in the amount of $1, 242.52 as due beginning with
the September 1, 2017 payment. (Id. at ¶ 13).
Under the Stipulated Order, events of default included:
failure to file a modified Chapter 13 plan, failure to pay
the post-petition arrearages, and failure to make any of the
monthly payments. (Id. at ¶ 14). Upon
occurrence of an event of default, 10 days' notice to
Appellant, and Appellant's failure to cure, the Stay
Relief Motion would be granted without further hearing.
(Id. at ¶ 15). On October 3, 2017, the
Bankruptcy Court approved the Stipulated Order. (Bankr. D.I.
January 11, 2018, Bank of New York filed its first notice of
default. (Bankr. D.I. 65). The first notice indicates, and
the docket reflects, that Appellant failed to file a modified
Chapter 13 plan as required by the Stipulated Order. The
notice of default also stated that Appellant was in default
for a total amount of $3, 707.08, which included three
regular mortgage payments. (Id. at 2). On January
16, 2018, Appellant filed a proposed modified Chapter 13
plan, which was approved by the Bankruptcy Court. (Bankr.
D.I. 66, 72).
February 1, 2018, Bank of New York filed a second notice of
default (Bankr. D.I. 71). The second notice acknowledged that
Appellant had filed, albeit late, a modified Chapter 13 plan
to include post-petition arrears, but stated Appellant
remained four months behind on regular monthly mortgage
payments in the amount of $1, 242.52. Appellant filed an
objection to the second notice of default. (Bankr. D.I. 74).
Appellant also filed an objection to Bank of New York's
proof of claim. (Bankr. D.I. 77).
April 24, 2018, the Bankruptcy Court held a hearing on
pending matters and took them under advisement.
April 25, 2018, Bank of New York filed a letter with the
Bankruptcy Court advising that Appellant was approved for a
three-month trial loan modification, which required Appellant
to make timely monthly payments for May 1, 1018 through July
1, 2018. (Bankr. D.I. 84). "After successful completion
of the Trial Period Plan, the account will be reviewed for a
permanent modification." (Id.)
8, 2018, Appellant filed a motion to reinstate the automatic
stay. (Bankr. D.I. 87).
7, 2018, the Bankruptcy Court entered the Lift Stay Order,
which (i) denied Appellant's motion to reinstate the
automatic stay and (ii) granted the Bank of New York's
Motion for Relief from Stay, on the basis that Appellant
failed to make the required mortgage payments following
execution of the Stipulation. (Bankr. D.I. 90 ¶ 2). The
Bankruptcy Court further determined:
In subsequent proceedings, including a hearing held on April
24, 2018, [Appellant] has raised challenges to, among other
things, [Bank of New York's] pre-bankruptcy conduct, the
amounts due to [Bank of New York] and the contents of [Bank
of New York's] proof of claim. The terms of the
Stipulation are clear, and the record supports a finding that
a payment default has occurred. The issues raised by
[Appellant], particularly those relating to events that