Wilma Pennington-Thurman v. Bank of America N.A.

Filing

OPINION FILED - THE COURT: Arthur B. Federman, Thomas L. Saladino and Anita L. Shodeen AUTHORING JUDGE:Anita L. Shodeen (PUBLISHED) [4087643] [13-6023]

United States Bankruptcy Appellate Panel
For the Eighth Circuit
___________________________
No. 13-6023
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In re: Wilma M. Pennington-Thurman
lllllllllllllllllllllDebtor
-----------------------------Wilma M. Pennington-Thurman
lllllllllllllllllllllDebtor - Appellant
v.
Bank of America N.A.
lllllllllllllllllllllObjector - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 16, 2013
Filed: October 21, 2013
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Before FEDERMAN, Chief Judge, SALADINO and SHODEEN, Bankruptcy
Judges.
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SHODEEN, Bankruptcy Judge.

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The Debtor, Wilma Pennington-Thurman, appeals the May 16, 2013 order
entered by the Bankruptcy Court1 denying her Motion to Reopen her case to pursue
an alleged violation of the discharge inunction. For the reasons that follow, we
AFFIRM.

BACKGROUND

A Chapter 13 bankruptcy petition was filed pro-se by Wilma PenningtonThurman (the “Debtor”) on July 10, 2009. On schedule A she listed an ownership
interest in her residence located at 8722 Partridge Ave., St. Louis, MO 63147 (the
“Property”) and claimed it exempt as her homestead. Her case was converted to a
Chapter 7 bankruptcy on October 8, 2009 and updated schedules were filed. The
statement of financial affairs identified causes of action she had commenced
against Bank of America, N.A. (“BOA”) after filing her chapter 13 petition but
before the conversion date.2 These cases alleged improprieties by BOA in a
foreclosure action against the Property. A discharge was entered in the Debtor’s
case on January 27, 2010. The chapter 7 trustee filed an Application to Approve
Compromise and Settlement related to the pending litigation. The Bankruptcy
Court overruled the Debtor’s objection to the proposed compromise and approved
the trustee’s Application. The Debtor’s case was fully administered and closed by
final decree on December 29, 2011.

After the bankruptcy case was closed, BOA initiated foreclosure proceedings
against the Property. On April 3, 2013, the Debtor filed A Motion to Reopen (the
1

The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
2
Amended schedule B did not reflect these potential claims as assets.
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“Motion”) her bankruptcy case for the purpose of filing an adversary proceeding
against BOA for violation of the discharge injunction. Her Motion states that
BOA sent forty-one notices, two Transfers of Service Provider, nine Recent
Inquiries, and placed six notices on her front door. She asserts that each of these
documents, and their combined effect, constitute attempts to collect a discharged
debt. BOA resisted the Debtor’s Motion, arguing that the notices were not
attempts to collect a debt against the Debtor, personally. Rather they were related
to enforcement of its mortgage against the real estate, an action that is not subject
to the discharge injunction. The Bankruptcy Court denied the Motion finding that
the notices were not attempts to collect a debt as a personal liability of the Debtor
and did not violate the discharge injunction. The Debtor timely appealed the
Bankruptcy Court’s order.

STANDARD OF REVIEW
A bankruptcy court’s findings of facts are reviewed for clear error and its
conclusions of law are reviewed de novo. First Nat’l Bank v. Pontow, 111 F.3d
604, 609 (8th Cir. 1997) (quoting Miller v. Farmers Home Admin. (In re Miller),
16 F.3d 240, 242 (8th Cir. 1994)). A decision denying a motion to reopen is
reviewed for an abuse of discretion. Apex Oil Co. v. Sparks (In re Apex Oil Co.),
406 F.3d 538, 541 (8th Cir. 2005). Under this standard, our review focuses upon
whether there was a failure to apply the proper legal standard or whether the
findings of fact are clearly erroneous. Official Comm. Of Unsecured Creditors v.
Farmland Indus. (In re Farmland Indus.), 397 F.3d 647, 650–51 (8th Cir. 2005).
A bankruptcy court’s ruling will not be reversed unless there is a “‘definite and
firm conviction that the bankruptcy court committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors.’” Apex Oil Co.,
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406 F.3d at 541 (quoting Dworsky v. Canal St. Ltd. P’ship (In re Canal St. Ltd.
P’ship), 269 B.R. 375, 379 (B.A.P. 8th Cir. 2001)).

DISCUSSION
A bankruptcy case may be reopened to “administer assets, to accord relief to
the debtor, or for other cause.” 11 U.S.C. § 350(b) (2012); Fed. R. Bank. Pro.
5010. Several factors may be applied to determine whether cause exists to reopen
a bankruptcy case. In re Wilson, 492 B.R. 691, 695 (Bankr. S.D.N.Y. 2013). Of
importance in this case is the factor which considers “whether it is clear at the
outset that no relief would be forthcoming to the debtor by granting the motion to
reopen” and is dispositive of the Debtor’s arguments. Id. (citing In re Otto, 311
B.R. 43, 47 (Bankr. E.D. Pa. 2004)).
“A discharge…operates as an injunction against the commencement or
continuation of an action, the employment of process, or an act, to collect, recover
or offset any such debt as a personal liability of the debtor, whether or not
discharge of such debt is waived.” 11 U.S.C. §524(a)(2). Although personal
liability to pay a debt does not continue, a discharge does not operate to extinguish
a creditor’s in rem rights to foreclose against property in which it holds a lien.
Johnson v. Home State Bank, 501 U.S. 78, 82–83 (1991); Long v. Bullard, 117
U.S. 617, 620–21 (1886).

The mortgage against the Debtor’s home remains

enforceable. See Bank One Wis. v. Annen (In re Annen), 246 B.R. 337, 340–41
(B.A.P. 8th Cir. 2000).

The notices received by the Debtor contain a declaration that they were
provided “for information purposes” related to the status of foreclosure or options
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to cure the default. The communications also recognized that a bankruptcy case
had been filed, a discharge entered, and stated that the notice was not an attempt to
collect against the Debtor, personally. According to Missouri cure notice laws, if a
borrower defaults by not making payment, a lender is required to give notice to the
borrower of his or her right to cure in order to accelerate, take possession, or
enforce a security interest. MO. REV. STAT. § 408.555.1 (2012). Before BOA
could foreclose upon the Property, it was required to give notice to the Debtor of
her right to cure, and this information can properly be included in the notices. See
11 U.S.C. §524(j)(3) (the discharge does not operate as an injunction if the
creditor’s act “is limited to seeking or obtaining periodic payments associated with
a valid security interest in lieu of pursuit of in rem relief to enforce the lien”);
Jones v. Bac Home Loans Servicing, LP (In re Jones), Bankr. No. 08-05439-AJM7, Adv. No. 09-50281, 2009 WL 5842122, at *3 (Bankr. S.D. Ind. Nov. 25, 2009)
(creditor’s communication was excepted from the discharge injunction by the
section 524(j)(3) exception).

The Bankruptcy Court determined that the notices and letters sent by BOA
were not attempts to collect against the Debtor personally and did not violate the
discharge injunction. Other courts have reached this same conclusion. See, e.g.,
Mele v. Bank. Of Am. Home Loans (In re Mele), 486 B.R. 546 (Bankr. N.D. Ga.
2013); Pearson v. Bank of Am., No. 3:12-cv-00013, 2012 U.S. Dist. LEXIS 94850
(W.D. Va. July 10, 2012); In re Jones, 2009 WL at *3.

We have previously addressed the issue of whether a motion to reopen is
properly denied if the purpose is to bring a claim that has no merit, holding that:

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Ordinarily, when a request is made to reopen a case for
the purpose of filing a dischargeability complaint, the
court should reopen routinely and reach the merits of
the underlying dispute only in the context of the
adversary proceeding, not as part of the motion to
reopen. However, where, as here, the proposed
dischargeability complaint is completely lacking in
merit, it is not inappropriate for the court to examine
the issues, nor is it an abuse of discretion to deny the
motion to reopen.
Arleaux v. Arleaux, 210 B.R. 148, 149 (B.A.P. 8th Cir. 1997). Under this standard,
and based upon the record, the Bankruptcy Court did not abuse its discretion in
denying the relief requested by the Debtor.

BOA argues that the Debtor has raised other causes of action involving
state-law wrongful-foreclosure theories and violations of the Fair Debt Collection
Practices Act (“FDCPA”) which were not preserved for appeal. Issues raised for
the first time on appeal are not considered and cannot form the basis for reversal by
an appellate court. Drewes v. Schonteich, 31 F.3d 674, 678 n.6 (8th Cir. 1994);
Wendover Fin. Servs. v. Hervey (In re Hervey), 252 B.R. 763, 767 (B.A.P. 8th Cir.
2000). Three exceptions exist to this general rule. In re Hervey, 252 B.R. at 767.
The first arises in “exceptional cases where the obvious result would be a plain
miscarriage of justice or inconsistent with substantial justice.” Id. at 768 (quoting
Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir. 1983)). The second exception occurs
when the resolution of the legal issues is “beyond any doubt.” Id. The third
exception is applied when the new issue is purely legal in nature and additional
evidence is not necessary and would not affect the outcome. Id. (quoting Krigel v.
Sterling Nat’l Bank (In re Ward), 230 B.R. 115, 119 (B.A.P. 8th Cir. 1999)). None

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of the permitted exceptions are appropriate in this case.

Accordingly, these

arguments are not addressed here.
Because the Bankruptcy Court correctly concluded that the Debtor’s
allegations were without merit, we find that it did not abuse its discretion in
denying the Motion to Reopen her bankruptcy case. Accordingly, the decision of
the bankruptcy court is affirmed.
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