Now Updating
Margaret Kinney v. HSBC Bank USA

Summarizing by Lars Fuller

In re Anibal Mesala Silva

Case Type:
Consumer
Case Status:
Affirmed
Citation:
BAP No. CC-20-1237-GTL (9th Circuit, Jul 06,2021) Not Published
Tag(s):
Ruling:
BAP for 9th Cir. affirmed ruling of bankruptcy court (CD Cal.). denying chapter 13 debtor's (1) motion for sanctions against tax collector and mortgage servicer; (2) motion to vacate order denying motion for sanctions; and sustained mortgage servicer's evidentiary objections. Payment from mortgage service to county tax collector for real property taxes did not violate automatic stay. Escrowed funds were not property of bankruptcy estate and servicer had authority to make payment under loan agreement.
Procedural context:
Bankruptcy court (CD Cal.) denied chapter 13 debtor's (1) motion for sanctions against tax collector and mortgage servicer; (2) motion to vacate order denying motion for sanctions; and sustained mortgage servicer's evidentiary objections. Debtor appealed to BAP for 9th Cir.
Facts:
Debtor filed his chapter 13 petition and plan proposing to pay real property taxing authority's claim of $2,093.57 as a Class 1 priority claim. Debtor included mortgage servicer as a Class 2 secured creditor and proposed to cure its arrearage claim of $5,200 while making regular postpetition payments outside of the plan. Although his regular postpetition mortgage payments were $1,729.36, which included amounts for taxes and insurance, Debtor proposed non-standard plan provisions to allow postpetition payments of principal and interest in the amount of $1,310 per month and a requirement that Debtor separately pay insurance and taxes. Mortgage servicer's proof of claim evidenced arrears of $5,320.58, comprised of $3,917.04 for principal and interest, $56 for prepetition fees, and $1,752.01 for a projected escrow shortage. MidFirst attached an escrow account analysis which showed a pursuant to the terms of the loan documents. balance of $1,238.69 on the petition date. Taxing authority filed a proof of claim of $2,093.57 for prepetition property taxes. Debtor objected to taxing authority's claim and argued that his assessed property tax for fiscal year 2018 was $4,187.14, payable in two installments of $2,093.57. Debtor contended that the first installment was paid prepetition and, because the second was not due until April 2019,
Judge(s):
Gan, Taylor, Lafferty

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