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In re Genrette

United States District Court, D. Delaware

December 20, 2018

IN RE ANDREA GENRETTE, Debtor.
v.
BANK OF NEW YORK MELLON TRUST COMPANY, NA, Appellee. ANDREA GENRETTE, Appellant,

          MEMORANDUM ORDER

          THE HONORABLE MARYELLEN NOREIKA UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Presently 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.

         II. BACKGROUND

         The 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.

         On August 19, 2015, Appellant commenced a Chapter 13 case (Bankr. D.I. I).[1]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").

         Determination 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. 60).

         On 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).

         On 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).

         On April 24, 2018, the Bankruptcy Court held a hearing on pending matters and took them under advisement.

         On 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.)

         On May 8, 2018, Appellant filed a motion to reinstate the automatic stay. (Bankr. D.I. 87).

         On June 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 ...

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