Morgan-Austin et al v. Patelco Credit Union

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 08-40399 TG
Chapter 13
GANICE MORGAN-AUSTIN, DARREN
AUSTIN,
Debtors.
___________________________/
GANICE MORGAN-AUSTIN, DARREN
AUSTIN, 	A.P. No. 09-4070 AT
Plaintiff,
vs.
PATELCO CREDIT UNION,
Defendant.
___________________________/
MEMORANDUM OF DECISION
The above-captioned chapter 13 debtors (the “Debtors”) filed the
above-captioned 	adversary 	proceeding, 	seeking 	to 	enjoin 	the
foreclosure 	sale 	of 	their 	residence 	(the 	“Residence”) 	by 	Patelco
Credit Union (“Patelco”), the holder of a first deed of trust on the
Residence. 	On 	February 	9, 	2009, 	the 	Court 	heard 	and 	granted 	a
temporary restraining order, setting a hearing on the application for
Signed: February 14, 2009
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
February 17, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
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a 	preliminary 	injunction 	for 	February 	19, 	2009 	at 	3:00 	p.m. 	with
additional briefs to be filed by February 13, 2009. 	After reviewing
the evidence and argument submitted, including the reply briefs, the
Court 	concludes 	that 	a 	preliminary 	injunction 	should 	be 	issued
conditioned on satisfactory future payments being made. 	The reasons
for the Court’s conclusion are set forth below. 	Given the nature of
the 	expedited 	relief 	sought, 	none 	of 	the 	findings 	of 	fact 	or
conclusions 	of 	law 	are 	final 	rulings 	and 	are 	controlling 	only 	for
purposes of this proceeding.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
The Debtors filed a chapter 13 bankruptcy case on July 11, 2007,
Case No. 07-42148. 	Patelco obtained relief from the automatic stay
in this case on November 28, 2007. 	Patelco filed an objection to the
Debtors’ 	plan. 	On 	December 	15, 	2007, 	an 	agreed 	order 	was 	filed
resolving the objection. 	On December 17, 2007, an order was entered
confirming 	the 	Debtors’ 	plan. 	On 	December 	17, 	2007, 	a 	declaration
was filed by Patelco, stating that the Debtors were in breach of the
agreed 	order. 	On 	January 	29, 	2008, 	the 	Debtors 	filed 	a 	motion 	to
dismiss the bankruptcy case. 	The order was granted, and the case was
dismissed on January 11, 2008.
On January 29, 2008, the Debtors filed the above-captioned case.
On the same day, they filed a chapter 13 plan (the “Plan”). 	The Plan
proposed 	to 	pay 	the 	chapter 	13 	trustee 	$1,000 	per 	month 	for 	six
months and $3,796 per month for fifty-four months. 	The Plan provided
that 	the 	Debtors 	would 	make 	the 	post-petition 	payments 	to 	Patelco
directly. 	The 	bankruptcy 	schedules, 	which 	were 	filed 	with 	the
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petition, 	valued 	the 	Residence 	at 	$990,000 	with 	secured 	claims
equaling its value. 	The balance of Patelco’s claim was scheduled as
$733,000.
Because the Debtors had two cases pending within one year, the
automatic 	stay 	was 	due 	to 	expire 	30 	days 	from 	the 	petition 	date
unless extended by the Court. 	The Debtors filed a motion to extend
the automatic stay on February 8, 2008. 	Patelco filed an opposition
to the motion, and a hearing on the motion was scheduled for February
28, 2008. 	At the hearing, Patelco contended that the filing of the
current 	case 	violated 	11 	U.S.C. 	§ 	109(g) 	and 	had 	to 	be 	dismissed.
The Court agreed that the Debtors were required to establish changed
circumstances to maintain the case. 	The Debtors contended that Mrs.
Morgan-Austin, 	a 	real 	estate 	agent, 	had 	obtained 	additional
employment 	and 	that 	this 	constituted 	sufficient 	changed
circumstances.
At the conclusion of the hearing, as a condition of continuing
the automatic stay, the Court ordered the Debtors to provide evidence
to Patelco by March 7, 2008 of Mrs. Morgan-Austin’s new employment.
If 	she 	failed 	to 	do 	so, 	the 	motion 	to 	extend 	the 	stay 	would 	be
denied. 	The Court further ordered that, if evidence were provided by
the specified date, the continuation of the automatic stay would be
further conditioned on the Debtors making the post-petition payments
when due or within the applicable grace period with a ten day notice
to 	cure 	in 	the 	event 	of 	a 	default. 	In 	addition, 	the 	Debtors 	were
required to pay $10,000 to Patelco by April 28, 2008. 	There was no
grace period or ten day cure period with respect to this payment.
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1Because this provision was improperly included in the
Adequate Protection Order, the Court will omit any discussion of
the Debtors’ defaults based on their failure to keep their plan
payments current. 	However, the Court notes that hearings are
currently scheduled for March 20, 2009 on the chapter 13 trustee’s
motion to dismiss the case on this ground and on the Debtors’
objection to the claim of Wells Fargo Bank, N.A., a junior secured
creditor on the Residence.
4
The Debtors were ordered to comply with all of the other terms of the
loan and security agreement.
Patelco 	asked 	the 	Court 	to 	allow 	this 	$10,000 	payment 	to 	be
applied to the pre-petition default in view of the prior case. 	The
Court refused to make this provision a condition of the order. 	There
was no discussion of conditioning the continuation of the automatic
stay 	on 	the 	Debtors 	remaining 	current 	to 	the 	chapter 	13 	trustee.
There 	was 	also 	no 	discussion 	of 	the 	amount 	of 	attorneys’ 	fees 	to
which Patelco would be entitled in the event of a breach.
An 	adequate 	protection 	order 	was 	submitted 	to 	the 	Court 	on 	or
about April 16, 2008 (the “Adequate Protection Order”). 	The Debtors
did not object to the form of the Adequate Protection Order despite
the fact that it was inconsistent with the Court’s oral order in at
least 	three 	respects: 	(1) 	the 	proposed 	Adequate 	Protection 	Order
provided 	that 	the 	$10,000 	payment 	would 	be 	applied 	to 	the 	pre-
petition 	default; 	(2) 	the 	Adequate 	Protection 	Order 	provided 	that
continuation 	of 	the 	stay 	would 	be 	conditioned 	on 	the 	Debtors
remaining 	current 	to 	the 	chapter 	13 	trustee; 1 	and 	(3) 	the 	Adequate
Protection 	Order 	provided 	that, 	in 	the 	event 	of 	a 	breach 	of 	the
Order, the sum to cure the breach would include the sum of $485 or,
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if Patelco obtained relief due to the breach, $85 would be added to
the secured claim.
In 	the 	absence 	of 	an 	objection 	to 	the 	form 	of 	the 	Order, 	the
Court 	signed 	it 	without 	noting 	the 	discrepancies. 	An 	Amended
Adequate Protection Order was later submitted to the Court. 	It did
not correct the discrepancies nor did the Debtors object to its form
at 	this 	time 	either. 	The 	Amended 	Adequate 	Protection 	Order 	was
signed 	and 	entered 	on 	May 	22, 	2008 	(hereinafter 	the 	“Adequate
Protection Order”).
The 	Plan 	was 	confirmed 	on 	April 	22, 	2008. 	Patelco 	apparently
received 	adequate 	evidence 	of 	Mrs. 	Austin-Morgan’s 	additional
employment and payment of $10,000 by an acceptable date. 	However, on
May 23, 2008, Patelco filed a declaration re breach of the Adequate
Protection 	Order 	(the 	“May 	23 	Declaration 	Re 	Breach”). 	The 	May 	23
Declaration Re Breach stated that the Debtors were in default of the
Adequate 	Protection 	Order: 	(1) 	by 	failing 	to 	make 	one 	of 	the 	bi-
monthly payments for March 2008 and all of the monthly payments for
April 2008 and May 2008, and (2) by failing to make the plan payments
to 	the 	chapter 	13 	trustee 	for 	April 	and 	May 	2008. 	Including 	late
fees, the cure amount was stated to be $9,468.50. 	The Debtors were
given ten days’ notice to cure these defaults.
The 	Debtors 	filed 	an 	opposition 	to 	the 	May 	23 	Declaration 	Re
Breach. 	In the opposition, they asserted that they had mailed their
chapter 	13 	payments 	to 	Tennessee 	as 	instructed 	by 	the 	chapter 	13
trustee. 	They noted that payments were withdrawn from their account
by 	Patelco 	on 	a 	bi-monthly 	basis 	in 	the 	amount 	of 	$1,787. 	They
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asserted 	that 	they 	could 	not 	determine 	the 	correct 	nature 	of 	the
default 	on 	the 	post-petition 	payments 	to 	Patelco 	as 	the 	amounts
stated 	by 	Patelco 	were 	not 	consistent 	with 	their 	records. 	They
surmised 	that 	Patelco 	might 	have 	increased 	the 	amount 	of 	their
monthly 	payments 	without 	giving 	them 	notice 	as 	required 	by 	the
promissory note (the “Note). 	They asserted that they had sufficient
funds 	to 	cure 	any 	defaults 	once 	the 	correct 	amount 	had 	been
ascertained. 	No hearing was ever scheduled to resolve this dispute.
However, Patelco did not attempt to proceed with its foreclosure at
that time.
On 	November 	19, 	2008, 	Patelco 	filed 	a 	second 	declaration 	re
breach of the Adequate Protection Order (“November 19 Declaration Re
Breach”). 	The 	November 	19 	Declaration 	Re 	Breach 	stated 	that 	the
Debtors were in default for one of the bi-monthly payments for August
2008 	payment 	and 	for 	all 	of 	the 	payments 	for 	September 	through
November 2008 for a total of $12,508.30. 	Patelco also asserted that
the 	Debtors 	were 	in 	breach 	of 	the 	Adequate 	Protection 	Order 	as 	a
result of being delinquent on their plan payments due to the chapter
13 trustee for August through November 2008. 	Patelco issued a notice
of 	sale 	(the 	“Notice 	of 	Sale”) 	on 	January 	14, 	2009, 	scheduling 	a
foreclosure sale of the Residence for February 11, 2009. 	The Debtors
filed this adversary proceeding against Patelco on February 3, 2009.
DISCUSSION
The complaint seeks damages, an accounting, an injunction, and
declaratory 	relief. 	The 	complaint 	and 	the 	application 	for 	a
temporary restraining order and preliminary injunction assert three
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claims 	for 	relief. 	First, 	they 	contend 	that 	the 	Notice 	of 	Sale
violated 	Cal. 	Civ. 	Code 	Cal. 	Civ. 	Code 	§ 	2924.8. 	Second, 	they
contend 	that 	Patelco 	breached 	its 	contract 	with 	the 	Debtor 	by
increasing their monthly payment more frequently than permitted and
without giving them prior notice. 	Third, they contend that Patelco’s
November 	19 	Declarations 	Re 	Breach 	overstated 	the 	cure 	amount, 	so
that the Debtors were not given an adequate opportunity to cure any
default. 	As a result, they contend Patelco is not entitled to relief
from the automatic stay. 	Instead, the Debtors should be given proper
notice of the cure amount and a reasonable opportunity to cure. 	The
Court will address each of these claims in turn.
A. 	VALIDITY OF NOTICE OF SALE
Because 	of 	the 	national 	epidemic 	of 	foreclosures 	on 	home
mortgages, in July 2008, the California legislature enacted emergency
legislation, 	requiring 	lenders 	to 	attempt 	to 	negotiate 	workout
agreements 	on 	loan 	defaults 	before 	commencing 	or 	continuing
foreclosure 	proceedings. 	See 	Cal. 	Civ. 	Code 	§§ 	2923.5, 	2923.6,
2924.8, and 2929.3. 	The legislation was effective immediately. 	The
legislation did not require lenders such as Patelco, who had already
recorded 	notices 	of 	default, 	to 	re-record 	those 	notices 	after
attempting to negotiate. 	However, it did require such lenders, who
had not yet recorded notices of sale, to attempt to negotiate before
recording a notice of sale. 	There is no dispute that Patelco made no
attempt to negotiate with the Debtors before recording Notice of Sale
on January 14, 2009.
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Patelco 	contends 	that 	the 	legislation 	exempted 	them 	from 	any
obligation to negotiate with the Debtors before recording a Notice of
Sale 	because 	the 	Debtors 	were 	at 	that 	time 	still 	debtors 	in 	a
bankruptcy case. 	The specific provision upon which they rely is Cal.
Civ. Code § 2923.5(h)(3) which states as follows:
(h) 	Subdivisions 	(a), 	(c), 	and 	(g) 	shall 	not
apply if any of the following occurs:
......
......
(3) 	The borrower has filed for bankruptcy, and
the proceedings have not been finalized.
It is undisputed that the Debtors’ bankruptcy case was still pending
at the time Patelco recorded the Notice of Sale. 	The Debtors contend
that the exemption did not apply because the bankruptcy case had been
finalized 	as 	to 	Patelco. 	Patelco 	had 	obtained 	relief 	from 	the
automatic 	stay 	and 	had 	never 	filed 	a 	proof 	of 	claim 	in 	the 	case.
Patelco 	contends 	that 	the 	phrase 	is 	clear 	and 	exempts 	it 	from
compliance unless the bankruptcy case has been dismissed.
There 	is 	some 	appeal 	to 	the 	Debtors’ 	argument. 	The 	exemption
may have been created in recognition of the difficulty created by the
automatic 	stay 	with 	respect 	communications 	between 	creditors 	and
debtors. 	Once 	the 	automatic 	stay 	has 	been 	vacated, 	the 	Debtors
contend, 	the 	exemption 	no 	longer 	serves 	any 	purpose. 	On 	the 	other
hand, 	Patelco 	argues 	instead 	that 	the 	exemption 	reflects 	the
legislature’s 	recognition 	that 	the 	bankruptcy 	process 	provides 	an
adequate opportunity for negotiation.
The 	Court 	has 	no 	way 	to 	determine 	the 	legislature’s 	intent 	in
this regard. 	It can only construe the statutory language as it would
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be 	commonly 	understood. 	Doing 	so, 	the 	Court 	finds 	Patelco’s
construction of the language more plausible. 	Therefore, the Court
concludes that Patelco did not violate Cal. Civ. Code § 2924.8 when
it recorded the Notice of Sale without first attempting to negotiate
with the Debtors.
B. 	IMPROPER INCREASES OF INTEREST RATE
The 	Debtors 	contend 	that 	Patelco 	breached 	their 	contract 	by
increasing the interest rate in a manner contrary to the terms of the
Note. 	The Note, which is dated January 16, 2004, calls for monthly
payments of $3,573.80 beginning on March 1, 2004 with interest at the
yearly 	rate 	of 	3.875%. 	Paragraph 	4 	of 	the 	Note 	provides 	that 	the
interest 	rate 	(and 	thus 	the 	monthly 	payments) 	will 	change 	on 	the
first 	day 	of 	February 	2007 	and 	every 	twelve 	months 	thereafter. 	It
provides further that the holder of the Note will deliver or mail to
the 	Debtors 	notice 	of 	any 	changes 	before 	the 	effective 	date 	of 	the
change, the notice to include the amount of the monthly payment.
The 	Debtors 	contend 	that 	no 	notice 	was 	given 	of 	a 	proposed
interest 	rate 	change 	on 	February 	1, 	2007. 	Instead, 	notice 	of 	a
change was provided on August 7, 2007, increasing their interest rate
to 	5.8750% 	per 	year 	and 	their 	bi-monthly 	payment 	to 	$2,211.56.
However, 	they 	contend 	that 	Patelco 	breached 	this 	provision 	of 	the
Note in February 2008, just after this bankruptcy case was filed, by
increasing 	the 	interest 	rate 	again, 	to 	6.125% 	per 	year 	without 	any
prior 	notice. 	This 	caused 	the 	monthly 	payment 	to 	increase 	to
$2,265.96. 	The bank statements for February 2008 through August 2008
reflect these increases.
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26 	2In January 2009, Patelco gave the Debtors notice that their
interest rate and thus their bi-monthly payment would decrease.
10
Patelco has provided no evidence that prior notice was given of
this 	increase. 	Instead, 	Patelco 	has 	apparently 	agreed 	to 	back 	out
all interest rate increases including the increase of which it gave
notice on August 7, 2007. 2 	Thus, this claim is apparently moot.
C. 	INACCURACY OF DECLARATION RE BREACH
The Debtors contend that the November 19 Declaration Re Breach
misstated 	the 	amount 	of 	the 	default 	and 	was 	thus 	invalid 	so 	that
Patelco 	does 	not 	have 	relief 	from 	the 	automatic 	stay. 	The 	Court
agrees. 	The 	problem 	appears 	to 	have 	been 	caused 	by 	Patelco’s
improper 	inclusion 	in 	the 	Adequate 	Protection 	Order 	of 	a 	provision
the 	Court 	expressly 	disallowed 	at 	the 	February 	28, 	2008 	hearing,
i.e., that the $10,000 payment by the Debtors could be applied to the
pre-petition defaults.
The 	November 	19 	Declaration 	Re 	Breach 	stated 	that 	the 	Debtors
were 	three 	and 	one-half 	months 	delinquent 	on 	their 	post-petition
mortgage 	payments: 	i.e., 	a 	one-half 	payment 	for 	August 	2008 	and 	a
full 	payment 	for 	September 	through 	November 	2008 	for 	a 	total
delinquency 	of 	$12,508.30. 	Attached 	to 	the 	declaration 	of 	Ester
Carino, 	Patelco’s 	custodian 	of 	records, 	is 	an 	accounting 	of 	the
payments received from the Debtors from February 11 to November 19,
2008 (“Patelco’s Accounting”). 	This period consists of ten months,
requiring twenty bi-monthly payments of $1,786.90 each for a total of
$35,738.00. 	Patelco’s 	Accounting 	reflects 	the 	receipt 	during 	this
period 	of 	fourteen 	payments 	of 	$1,786.90 	each 	for 	a 	total 	of
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3In its calculations, the Court has relied on Patelco’s
accounting of the payments made. 	In their reply brief, the Debtors
assert that this accounting does not given them credit for various
payments and overpayments made from May to August 2008. 	The bank
statements support this assertion. 	Patelco should clarify this
apparent discrepancy.
4In its reply brief, Patelco again relies in part on the
Debtors’ default with respect to the case in general. 	Since there
should not have been a provision in the Adequate Protection Order
11
$25,016.60. 3 	However, Patelco’s Accounting does not reflect receipt
of the $10,000 payment made by the Debtors on May 1, 2008, which was
presumably 	improperly 	applied 	to 	the 	pre-petition 	debt. 	If 	the
$10,000 payment had been properly applied, the cure amount would have
been 	only 	$721.40. 	Presumably, 	the 	Debtors 	could 	have 	made 	this
small cure payment in a timely fashion.
As it was, the Debtors attempted to cure this improper amount by
tendering 	a 	check 	for 	$12,508.30. 	Unfortunately, 	due 	to 	a 	banking
error, the payment did not clear. 	Patelco refused to accept a later
tender 	of 	$10,735. 	Either 	amount 	would 	have 	been 	significantly 	in
excess 	of 	the 	amount 	properly 	due, 	even 	when 	the 	first 	bi-monthly
payment for December 2008 is taken into account.
Thus, 	the 	Court 	concludes 	that 	the 	November 	19 	Declaration 	Re
Breach 	was 	invalid 	and 	that 	Patelco 	does 	not 	have 	relief 	from 	the
automatic stay. 	Moreover, the Court will direct Patelco to submit an
Second 	Amended 	Adequate 	Protection 	Order 	containing 	only 	those
provisions which the Court approved at the February 28, 2008 hearing.
A 	tape 	of 	the 	hearing 	may 	be 	obtained 	from 	the 	Court 	at 	a 	nominal
expense 	to 	ensure 	that 	the 	order 	submitted 	accurately 	reflects 	the
Court’s ruling. 4
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requiring the Debtors to maintain payments to the chapter 13
trustee, these defaults will be addressed at the hearing on the
trustee’s motion to dismiss the case rather than as part of this
adversary proceeding. 	Moreover, it is not clear to the Court to
what extent Patelco’s improper application of the $10,000 may have
contributed to the Debtors’ defaults to the trustee.
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Since 	Patelco 	has 	refused 	the 	Debtors’ 	recent 	tenders 	of 	cure
payments, the Debtors are now in default of additional post-petition
payments. 	The 	Court 	directs 	the 	Debtors 	to 	be 	prepared 	to 	make 	a
reasonable 	proposal 	for 	cure 	of 	these 	payments 	at 	the 	hearing 	on
February 19, 2009.
CONCLUSION
For purposes of this application, the Court concludes that the
Notice of Sale was not invalid based Patelco’s failure to comply with
the provisions of Cal. Civ. Code § 2924.8. 	The Court 	concludes that
Patelco’s breach of contract claim based on improper rate increases
is 	moot. 	Finally, 	the 	Court 	concludes 	that 	the 	November 	19
Declaration 	Re 	Breach 	grossly 	overstated 	the 	cure 	amount 	so 	that
Patelco 	is 	not 	entitled 	to 	relief 	from 	the 	automatic 	stay 	and 	that
the 	Adequate 	Protection 	Order 	significantly 	misstated 	the 	Court’s
oral order and should be amended. 	The application will be granted on
conditions to be set at the February 19, 2009 hearing.
END OF DOCUMENT
Case: 09-04070 Doc# 13 Filed: 02/14/09 Entered: 02/17/09 14:38:39 Page 12 of
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COURT SERVICE LIST
Marc Voisenat
Law Offices of Marc Voisenat
1330 Broadway #1035
Oakland, CA 94612
Reilly D. Wilkinson
Scheer Law Group, LLP
155 N. Redwood Drive, Ste. 100
San Rafael, CA 94903
Daniel S. Vaughan
Law Offices of Daniel S. Vaughan
1485 Enea Ct. #1330
Concord, CA 94520
Martha G. Bronitsky
P.O. Box 5004
Hayward, CA 94540-5004
Case: 09-04070 Doc# 13 Filed: 02/14/09 Entered: 02/17/09 14:38:39 Page 13 of
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