United States District Court, D. Delaware
IN RE ANDREA GENRETTE, Debtor.
BANK OF NEW YORK MELLON TRUST COMPANY, Appellee. ANDREA GENRETTE, Appellant,
Maryellen Noreika, United States District Judge
before the Court is an appeal from a Bankruptcy Court order
dated November 27, 2018 (B.D.I. 118) (“Order Denying Loan
Modification”), entered in the Chapter 13 case of
pro se appellant Andrea Genrette
(“Appellant”), denying Appellant’s entry
into a Loan Modification Agreement with appellee Bank of New
York Mellon Trust Company, N.A. (“Bank of New
York”). For the reasons set forth herein, the Court
will affirm the Order Denying Loan Modification.
Chapter 13 Case
June 21, 2004, Appellant and George McClone
(“McClone”) obtained a mortgage loan from
Mercantile Mortgage Company. (See D.I. 13, Note
attached as Exhibit B). To secure the loan, Genrette and
McClone gave a mortgage to MERS as nominee for Mercantile
(“Mortgage”) as to property located at 4 Westbury
Drive, New Castle, Delaware (“Property”).
(See id., Mortgage attached as Exhibit C). On
October 1, 2010, Genrette entered into a Non-Hamp Loan
Modification Agreement. (See id., Loan Modification
Agreement attached as Exhibit D). MERS as nominee for
Mercantile assigned the mortgage to Bank of New York on
October 1, 2015. (See id., Assignment of Mortgage
attached as Exhibit E).
August 19, 2015, Appellant commenced a Chapter 13 case
(Bankr. D.I. 1). On October 26, 2015, the Bankruptcy Court
entered an order confirming Appellant’s Chapter 13
plan. (See Bankr. D.I. 30, 34). On September 13,
2016, Bank of New York filed a proof of claim (“Proof
of Claim”) claiming pre-petition arrears of $5, 761.01.
(D.I. 13, Proof of Claim attached as Exhibit F). Appellant
did not object to Bank of New York’s Proof of Claim for
over a year and half, and only did so after Bank of New York
sought relief from the stay. On March 22, 2018, Appellant
filed an Objection to Proof of Claim claiming it was filed
late and objecting to the amount and validity of the claim.
(Bankr. D.I. 77). On August 2, 2018, the Bankruptcy Court
overruled Appellant’s Objection to Proof of Claim as
moot because relief from the stay had been granted. The
Bankruptcy Court also noted that the Court saw no prejudice
to Appellant from any alleged delay in the filing of Bank of
New York’s Proof of Claim. (Bankr. D.I. 96).
Lift Stay Order
29, 2017, Bank of New York filed a Motion for Relief from
Stay (Bankr. D.I. 52) (“Stay Relief Motion”)
based on Appellant’s failure to make the required
post-petition payments under the Chapter 13 plan, including
12 post-petition payments for the months of July 2016 through
June 2017. (Id. ¶ 1).
avoid litigation, determination of the Stay Relief Motion was
stayed by agreement of the parties per a signed stipulation
(Bankr. D.I. 59) (“Stipulation”). Under the terms
of the Stipulation, Appellant acknowledged Bank of New
York’s calculation of post-petition arrearages and
costs and agreed to file, within 30 days, a modified Chapter
13 plan to provide a cure for the post-petition delinquency
of payment of arrearages and costs, then totaling $14, 197.58
(id. ¶¶ 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. ¶ 13). Under the Stipulation,
events of default included: Appellant’s failure to file
the modified Chapter 13 plan, failure to pay the
post-petition arrearages, and failure to make any of the
monthly payments. (Id. ¶ 14). Upon occurrence
of an event of default, 10 days’ notice to Appellant,
and Appellant’s failure to cure, the Stipulation
provided that the Stay Relief Motion would be granted without
further hearing. (Id. ¶ 15). On October 3,
2017, the Bankruptcy Court approved the Stipulation (Bankr.
D.I. 60) (“Stipulated Order”).
January 11, 2018, Bank of New York filed a notice of
non-compliance. (Bankr. D.I. 65). The 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 non-compliance also stated that Appellant was in
default for a total amount of $3, 707.08, which included
three regular mortgage payments required on November 2017,
December 2017, and January 2018. (Id. at 2).
January 16, 2018, Appellant filed the 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 notice of default under the Stipulated Order. (Bankr.
D.I. 71). The notice of default acknowledged that Appellant
had filed, albeit late, a modified Chapter 13 plan, but the
post-petition arrears for November 2017 through February 2018
remained unpaid. Appellant filed an objection to the notice
of default alleging that Bank of New York was not entitled to
stay relief because there was an improper allocation of
post-petition payments, erroneous fees were charged during
the bankruptcy, and the amount owed was incorrect. (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. (See
Bankr. D.I. 98, 4/24/18 Hr’g Tr.). On April 25, 2018,
Bank of New York filed a supplemental letter brief with the
Bankruptcy Court, which included correspondence from Ocwen,
the loan servicer, to Appellant with an account
reconciliation in response to questions raised by Appellant.
(Bankr. D.I. 84). On April 30, 2018, Appellant filed a
response to the supplemental letter brief claiming that Ocwen
collected payments and other charges before the loan was
assigned to it. (Bankr. D.I. 85). On May 8, 2018, Appellant
filed a motion to reinstate the automatic stay. (Bankr. D.I.
7, 2018, the Bankruptcy Court entered the Lift Stay Order,
which (i) denied Appellant’s motion to reinstate the
automatic stay, and (ii) granted Bank of New York relief from
the automatic stay on the basis that Appellant failed to make
the required post-petition payments under the ...