Dwayne Ijoe Mobley and Arlana Eileen Mobley

1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION
IN RE:
DWAYNE IJOE MOBLEY and
ARLANA EILEEN MOBLEY,
Debtors. 05-09404-8-JRL
Chapter 13
______________________________________________________________________________
ORDER
This matter is before the court on Hyundai Motor Finance Company’s motion to revoke the order
modifying the Chapter 13 plan and to reinstate the originalChapter 13 plan confirmed on January 24, 2006.
On October 30, 2006, the court conducted a hearing on this matter in New Bern, North Carolina.
On June 3, 2003, the debtors purchased a 2003 Hyundai Elantra. On November 3, 2003, the
debtors filed a Chapter 13 case, which was dismissed on October 13, 2005 for failure to comply with the
plan. On the same day of October 13, 2005, the debtors filed the subject Chapter 13 case. The petition
was served on Hyundai at the address in the debtor’s creditor matrix, which is P.O. Box 7247-0332,
Philadelphia, PA 19170-0332 (“Pennsylvania address”). Hyundai filed a proof of claim, which was dated
SO ORDERED.
SIGNED this 08 day of November, 2006.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
Case 05-09404-8-JRL Doc 21 Filed 11/08/06 Entered 11/08/06 14:20:54 Page 1 of 4

2
November 8, 2005 and received by the trustee’s office on December 12, 2005. In the proof of claim,
Hyundai stated its address at P.O. Box 20809, Fountain Valley, CA 92728-0809 (“the California
address”). At that time, proofs of claim in Chapter 13 cases were filed with the Chapter 13 trustee and did
not appear on the docket. The debtors’ counsel would not have been aware of the discrepancy in
addresses from the official record. Additionally, there was no internal procedure in the trustee’s office for
automatically informing debtors of their creditors’ updated information, and Hyundai never directly informed
the debtors of the preferred California address.
On January 24, 2006, the court confirmed a Chapter 13 plan. Under the plan, Hyundai was given
a secured claim of $9,725.00 to be paid within 57 months at 8.75% interest. Plan payments were to be
made in the amount of $50.00 for one month, $496.00 for 12 months, then $400.00 for 45 months.
On May 15, 2006, the debtors moved to modify the plan to surrender the Elantra. The debtors
proposed to modify their plan payments to $50.00 for one month, $496.00 for 5 months, $310.00 for 7
months, then $210.00 for 45 months. The debtors served the motion to modify on Hyundai at the
Pennsylvania address. No objection was filed, and the motion was granted.
Hyundai asserts that it was not given proper notice of the motion, as the debtor sent the motion to
the Pennsylvania address, which Hyundai asserts is a post office box that has been closed for three years.
Hyundai contends that the proper address for service was the California address, which was listed on
Hyundai’s proof of claim and certificate of title reflecting Hyundai’s lien.
Secondly, Hyundai contends that the debtors never surrendered the vehicle. Hyundai argues that,
when it arrived at the debtor’s residence to repossess the Elantra, the vehicle would not start due to a weak
battery. Hyundai argues that the debtors failed to assist it when it came for the vehicle. Hyundai further
Case 05-09404-8-JRL Doc 21 Filed 11/08/06 Entered 11/08/06 14:20:54 Page 2 of 4

3
contends that the debtors damaged the vehicle, as there were a number of dents on the exterior of the
vehicle and a crack in the windshield.
At the hearing, Ms. Mobley testified that she and her husband had turned in their tags to the North
Carolina Department of Motor Vehicles, had canceled their automobile insurance, and had not driven the
vehicle for five months. Ms. Mobley stated that, when Hyundai arrived for the vehicle, it would not start
because it had not been driven in months. Ms. Mobley said that she and her husband did not resist the
repossession. As for damage, Ms. Mobley said that the only noticeable damage to the vehicle was a dent
in the rear bumper.
The court denies Hyundai’s motionto revoke the order modifying the Chapter 13 plan. The petition
was sent to the Pennsylvania address, and Hyundai somehow learned of this case because it filed a proof
of claim. Hyundai’s attorney did not offer a sufficient, alternative explanation as to how Hyundai knew of
this case. While the proof of claim received by the trustee in December 2005 set forth Hyundai’s California
address that deviated from the address in the debtor’s creditor matrix, there was no internal procedure in
place at that time whereby the trustee notified debtors regarding changes in their creditors’ addresses. Thus,
neither the debtors nor their attorney would have known of the California address by way of the proof of
claim. Hyundai asserts that the debtors had notice of the California address because it appears on the title
to the vehicle; however, in North Carolina, the title is only released to the owner when the auto loan is fully
paid. The motion to modify the plan to surrender the Elantra was served on Hyundai at the Pennsylvania
address. Hyundai’s attorney did not offer a sufficient, alternative explanation as to how Hyundai knew to
repossess the vehicle if it did not know of the modification.
As for the damage to the Elantra, Hyundai provided no competent evidence to support its position
Case 05-09404-8-JRL Doc 21 Filed 11/08/06 Entered 11/08/06 14:20:54 Page 3 of 4

4
that the Elantra was significantly damaged. The female debtor denied the allegations and asserted that the
Elantra simply had a dent in the rear bumper. While Hyundai claims that the debtors failed to assist Hyundai
when it came to repossess the vehicle, the evidence supports that the debtors did not resist repossession.
Moreover, it is common practice for creditors to bring a tow truck to ensure successful repossession of a
vehicle and not to assume that an uninsured, untagged vehicle can be driven off of the owner’s premises.
Based on the foregoing, Hyundai’s motion to revoke the modified plan is denied. The debtors shall
surrender the Elantra to Hyundai, and Hyundai may repossess the vehicle.
“END OF DOCUMENT”
Case 05-09404-8-JRL Doc 21 Filed 11/08/06 Entered 11/08/06 14:20:54 Page 4 of 4