Barbara Jewel Myers

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re No. 03-47038 TG
Chapter 13
BARBARA JEWEL MYERS, REF: ASW-118
Debtor.
_____________________________/
MEMORANDUM OF DECISION RE MOTION FOR RELIEF
The motion of Select Portfolio Servicing fka Fairbanks Capital
Corp. (“Fairbanks”) for relief from the automatic stay came before
the court for a continued hearing on March 18, 2005 at 11:00 a.m..
The debtor and the Fairbanks both appeared through counsel.
At issue was the moving party’s right to attorneys’ fees and
late charges and how long the debtor should be given to cure post-
petition arrearages on her mortgage. The debtor contended that
Fairbanks had not adequately informed her of the increase in her
mortgage payment due to the debtor’s failure to obtain insurance
for the collateral property as a result of which Fairbanks was
forced to obtain its own insurance. The debtor contended that,
due to the lack of notice, she should not have to pay attorneys’
fees and late charges. Fairbanks did not object to the debtor’s
Signed: April 19, 2005
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
April 19, 2005
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 03-47038 Doc# 27 Filed: 04/19/05 Entered: 04/19/05 15:27:47 Page 1 of 4

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being given a reasonable time to cure any other arrearages, not to
exceed six months.
At the conclusion of the hearing, the Court ordered counsel
for the parties to file post-hearing briefs. The Court indicated
that it would then rule without further hearing. Fairbanks filed
a declaration to which was attached various documents. Several of
the attached documents consist of notices of the intent to obtain
force placed insurance. The debtor responded, and Fairbanks filed
a reply.
The Court has considered the documents and papers submitted
after the hearing. The annual notices of Fairbanks of their
intent to obtain force place insurance are not particularly
helpful. Although they estimate the annual cost of the insurance
and inform the debtor that this will result in a “substantial
increase” to the mortgage payment, they do not specify the amount
of the increase.
However, among the attachments is an Annual Escrow Account
Disclosure Statement dated March 5, 2003, which indicates that a
force place insurance cost of $40 has been accruing each month.
This bankruptcy case was filed on December 5, 2003. Therefore,
the debtor was put on notice by the time she filed her bankruptcy
petition that, in addition to her monthly mortgage payment, her
failure to obtain insurance resulted in her owing Fairbanks $40 a
month each month in addition to her regular mortgage payment. She
failed to pay Fairbanks this amount. In addition, as noted by
Fairbanks, each month the debtor paid Fairbanks only $504.17
Case: 03-47038 Doc# 27 Filed: 04/19/05 Entered: 04/19/05 15:27:47 Page 2 of 4

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whereas her monthly mortgage payment without regard to the cost of
the insurance was $504.69.
Based on the foregoing, the Court concludes that the debtor
was on adequate notice of the cost of the force placed insurance
and that Fairbanks was entitled to impose late charges. Because
the debtor was delinquent post-petition, Fairbanks was also
entitled to charge attorneys’ fees assuming it was oversecured.
Fairbanks may add the attorneys’ fees to its proof of claim. The
debtor may object to the fees if she believes that Fairbanks is
not oversecured or if the attorneys’ fees appear unreasonable in
amount. The debtor will be given six months to cure the post-
petition arrears, with an equal payment due each month on the
first day of the month, late on the 15th, Fairbanks to provide a
ten day letter in the event of nonpayment within the grace period.
Counsel for Fairbanks is directed to submit a proposed form
of order in accordance with this memorandum.
END OF DOCUMENT
Case: 03-47038 Doc# 27 Filed: 04/19/05 Entered: 04/19/05 15:27:47 Page 3 of 4

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COURT SERVICE LIST
Alan Steven Wolf
The Wolf Firm, A Law Corporation
245 Fischer Ave., Ste. #A-0
Costa Mesa, CA 92626
Steven Jacobs
Law Offices of Steven Jacobs
14895 E. 14th St., #350
San Leandro, CA 94578
Case: 03-47038 Doc# 27 Filed: 04/19/05 Entered: 04/19/05 15:27:47 Page 4 of 4