Sarah T Wilson

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UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In re
SARAH T. WILSON, 	Chapter 13
Debtor 	Case No. 05-17557-RS
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ORDER
Whereas, the Debtor filed a Chapter 13 petition on August 22, 2005; and
Whereas, on April 19, 2006, the Court confirmed the Debtor’s Chapter 13 plan; and
Whereas, the order of confirmation provided:
As of December 30, 2005, the Debtor has paid the Chapter 13 Trustee the
amount of $4,328.00. 	The Debtor shall pay the Chapter 13 Trustee the
amount of $164.00 per month for 20 months commencing October 1, 2005. On
or before the 20 	month of the Debtor’s Plan, the Debtor shall sell orth
refinance her real estate located at 24 Tauton Avenue, Mattapan, MA to pay
the balance due on her Chapter 13 Plan. 	The total cost of the Debtor’s
Chapter 13 Plan is $32,273.86;
and
Whereas, on July 19, 2006, the Debtor filed an amended, post-confirmation Chapter
13 Plan, pursuant to which she proposed to refinance her mortgage and to make a balloon
payment of $26,510.37, coupled with a Motion for Approval of Post-Confirmation
Amended Plan; and
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Whereas, on October 11, 2006, the Court entered an order granting the Motion and
requiring the Chapter 13 Trustee to submit a proposed confirmation order; and
Whereas, the Court further ordered that “the balloon payment shall be adjusted to
fund the balance due on the total const of the plan;” and
Whereas, on October 23, 2006, the Debtor filed a plan modification; and
Whereas, on December 6, 2006, the Court confirmed the Debtor’s plan, as modified;
and
Whereas, at that time, the total cost of the Debtor’s plan was $35,166.37; and
Whereas, on April 14, 2008, after considerable activity in the Debtor’s case, including
the filing of a motion for relief from stay by Deutsche Bank Nation Trust Company,
Trustee, on behalf of The Certificateholders of Morgan Stanley ABS Capital I Inc. Trust
2004-NC3, Mortgage Pass Through Certificates, Series 2004-NC3 (“Deutsche Bank”), the
Court ordered the Debtor to file an amended plan and a motion to borrow within 30 days;
and
Whereas, on July 3, 2008, after obtaining two extensions of time, the Debtor filed a
Second Amended Post-Confirmation Chapter 13 Plan, a Motion for Approval of Amended
Plan, and a Motion for Leave to Obtain Credit; and
Whereas, in her Motion for Leave to Obtain Credit, the Debtor represented that she
was in the process of obtaining a reverse mortgage; and
Whereas, the Chapter 13 Trustee objected to confirmation of the Debtor’s Second
Amended Post-Confirmation Plan on the grounds that it “does not include payment of the
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full amount of secured arrears claim . . . and does not include the Trustee’s fee on the full
amount of the secured arrears claims [sic],” and she objected to the Motion for Leave to
Obtain Credit on the ground that it was premature as the Debtor did not have a
commitment letter; and
Whereas, Deutsche Bank also objected to confirmation on the ground that the Debtor
failed to provide for the total arrearage on her mortgage; and
Whereas, on September 9, 2008, the Debtor commenced an adversary proceeding
against Deutsche Bank and others, in which she sought, inter alia, a declaration that
Deutsche Bank is not the owner of the mortgage encumbering the Debtor’s property, and
a finding that the mortgage lien on the Debtor’s property is void; and
Whereas, on September 11, 2008, the Court denied the Debtor’s Motion for Leave
to Obtain Credit, sustained the Deutsche Bank’s Objection to Confirmation, and ordered
the Debtor to file an amended plan and a renewed borrowing motion within five days after
obtaining a commitment from a lender; and
Whereas, the Court took the Chapter 13 Trustee’s Objection to confirmation under
advisement,
Now, therefore, the Court hereby finds that the Trustee’s Objection to Confirmation
of the Debtor’s Second Amended Post-Confirmation Plan is moot. Although the identical
issue with respect to payment of the Trustee’s commission may arise in the future in the
context of a Third Amended Chapter 13 Plan, at this time there is no justiciable matter
before the Court, and it is improper for the Court to issue an advisory opinion.
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Accordingly, the Court overrules the Chapter 13 Trustee’s Objection without prejudice to
renewal.
By the Court,
Joan N. Feeney
United States Bankruptcy Judge
Dated: October 28, 2008
cc: David G. Baker, Esq., Amy Lee Lipman-White, Esq., Carolyn Bankowski, Esq.
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