Heritage Pacific Financial, LLC v. Montano (In re Montano)

Summarized by Lars Fuller , BakerHostetler
12 years 4 months ago

Citation:

Heritage Pacific Financial, LLC v. Montano (In re Montano), NC-12-1579-PaDJu (9th Cir. BAP Nov. 1, 2013)

Tag(s):

Ruling:

Ninth Circuit BAP affirmed rulings of Bankruptcy court for the Northern District of California granting summary judgment dismissing lender's 11 USC 523(a)(2) complaint. BAP affirmed that lender's deficiency claim was barred by California anti-deficiency statute (CCCP 726) based on facts. BAP also affirmed that there was no abuse in discretion in bankruptcy court granting debtor-defendant's motion for attorney fees and cost under 11 USC 523(d), after initially denying motion, and after granting debtor-defendant's motion for reconsideration.

Procedural context:

Lender plaintiff appealed decision of U.S. Bankruptcy Court for the Northern District of California granting summary judgment, and after initially denying the motion, on reconsideration, granting defendant's request for an award of attorney fees and costs.

Facts:

Debtor-defendant, who spoke limited English, and who could not read or write English, obtained a first and second mortgage from a mortgage broker. The mortgage broker falsified debtor's loan application, including income. Debtor signed loan application, lived in property as his residence, and then defaulted. Holder of first mortgage foreclosed. Lender purchased unsecured second note following foreclosure, and commenced deficiency action in state court. Debtor filed bankruptcy under Chapter 7. Lender commenced 523(a)(2) action to except debt from discharge. Debtor moved for summary judgment.

Judge(s):

Pappas, Dunn, and Jury

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