United States Bankruptcy Appellate Panel of the First Circuit
WILLIAM EVERETT BELSER, Debtor. WILLIAM EVERETT BELSER, Appellant,
NATIONSTAR MORTGAGE, LLC, d/b/a Champion Mortgage Company, Appellee
Appeal from the United States Bankruptcy Court for the District of New Hampshire. Bankruptcy Case No. 14-10547-BAH. (Hon. Bruce A. Harwood, U.S. Bankruptcy Judge).
Raymond J. DiLucci, Esq. on brief for Appellant.
Shawn M. Masterson, Esq., and Joseph M. Dolben, Esq., on brief for Appellee.
Before Hillman, Feeney, and Finkle, United States Bankruptcy Appellate Panel Judges.
Feeney, U.S. Bankruptcy Appellate Panel Judge.
William Everett Belser (the " Debtor" ) appeals from the bankruptcy court's order overruling his objection to the proof of claim filed by Nationstar Mortgage, LLC (" Nationstar" ) on the grounds of untimeliness. For the reasons set forth below, we AFFIRM.
On March 19, 2014, the Debtor filed a chapter 13 petition. On his schedules, the Debtor listed Nationstar as a secured creditor holding a reverse mortgage on his property in the amount of $93,000.00. The bankruptcy court set July 14, 2014, as the deadline to file proofs of claim.
On April 4, 2014, the Debtor filed a chapter 13 plan. With respect to Nationstar, the plan provided as follows: " This is a Reverse Mortgage and the pre-petition arrearage was caused by unpaid real estate taxes and such arrearage will be paid through the Plan." The " Estimated Total Pre-petition Arrearage" was listed as $10,000.00. Nationstar filed an objection to the plan which contained five numbered paragraphs as follows:
1. Lender is a secured creditor of Debtor and is secured by a first position reverse mortgage on Debtor's property located at 25 New Chester Mount[ain] Road, Bristol, N.H. 03222 (the " Property" ).
2. As of May 28, 2014, Lender's total secured claim is $185,999.10 with a pre-petition
arrearage in the amount of $21,690.80.
3. On or about April 4, 2014, Debtor filed a proposed Chapter 13 Plan (the " Plan" ).
4. The Plan provides for payment of the pre-petition arrearage owed to Lender in the amount of $10,000.00.
5. The Plan does not provide for adequate treatment of Lender's secured claim and is not feasible.
Thereafter, the claims bar date expired on July 14, 2014. Nationstar did not file a formal proof of claim by the claims bar date.
On July 25, 2014, the Debtor filed a proof of claim on behalf of Nationstar asserting a secured claim in the amount of $93,000.00, with a pre-petition arrearage of $10,000.00 (" Claim No. 4" ). Six weeks later, on September 9, 2014, Nationstar filed its own proof of claim asserting a secured claim in the amount of $158,490.18, with a pre-petition arrearage of $21,690.80 (" Claim No. 6" ). Nationstar did not indicate that Claim No. 6 amended a previously filed claim, nor did it reference either Claim No. 4 or Nationstar's objection to the plan. The Debtor objected to Claim No. 6 on the grounds that it was untimely and should be disallowed. The bankruptcy court scheduled the matter for a hearing on October 29, 2014.
In the meantime, on September 25, 2014, the Debtor filed an amended chapter 13 plan which included the same provision set forth in the original plan providing for payment of a pre-petition arrearage of $10,000.00 to Nationstar. Nationstar objected on the same grounds previously asserted in its objection to the original plan.
Nationstar also filed a response to the Debtor's objection to Claim No. 6. Nationstar asserted that, as it filed an objection to the Debtor's plan prior to the expiration of the claims bar date, and the objection contained both the total amount due and the pre-petition arrearage, the objection acted " as a timely filed informal proof of claim and the POC [Claim No. 6] may be treated as an amendment thereto. See In re Harper, 138 B.R. 229 ([Bankr.] N.D. Ind[.] 1991)."
On October 29, 2014, the bankruptcy court held a hearing on the Debtor's objection to Claim No. 6. At the hearing, the Debtor argued that Claim No. 6 was untimely as it was filed after the expiration of the claims bar date and should be disallowed. In response, Nationstar raised two arguments: (1) its objection to the Debtor's original plan should be treated as an informal proof of claim as it was in writing, it was filed before the claims bar date, it alerted the Debtor that there was a substantial pre-petition arrearage above his $10,000.00 estimated amount, and it would be equitable to allow the claim based on the objection; and (2) Claim No. 6 simply amended Claim No. 4. The Debtor countered that Nationstar's objection to his plan did not constitute an informal proof of claim as it did not demonstrate how Nationstar calculated the ...