United States District Court, M.D. Pennsylvania
IN RE: BARBARA ANN LENGYEL, Debtor.
CHASE HOME FINANCE LLC, CITI RESIDENTIAL LENDING, INC., Defendants. BARBARA ANN LENGYEL Plaintiff, Bankr. No. 5:07-BK-52691 Adv. No. 5:13-ap-0100
A. RICHARD CAPUTO, District Judge.
Presently before the Court is the Motion to Dismiss Plaintiff Barbara Ann Lengyel's ("Lengyel") Amended Complaint (Doc. 15) filed by Defendant Citi Residential Lending, Inc. ("Citi"). Because the face of the Amended Complaint demonstrates that Lengyel failed to timely file her claims against Citi, the motion to dismiss will be granted.
A. Factual Background
The facts as set forth in the Amended Complaint are as follows:
On or about June 17, 2005, Lengyel executed an adjustable rate note (the "loan") and a mortgage in favor of Ameriquest Mortgage Company. ( Am. Compl. , ¶ 7.) Lengyel fell behind on the mortgage payments, and on September 10, 2007, a mortgage foreclosure action was filed. ( Id . at ¶ 8.)
On October 17, 2007, Lengyel filed a Chapter 13 Bankruptcy petition. ( Id . at ¶ 9.) She proposed a Chapter 13 plan pursuant to which the Chapter 13 trustee would pay all amounts that came due on the loan through November 2007. ( Id .) These payments would have cured the arrears on the loan. ( Id .) The plan also provided that Lengyel would maintain regular payments beginning with the payment that came due in December 2007. ( Id .) Lengyel also filed a motion that was granted by the Court which required her employer to withhold from her pay the payments she was obligated to make on the loan and to the Chapter 13 trustee. ( Id . at ¶ 10.)
On the date the bankruptcy petition was filed, Citi serviced the loan. Citi had notice of the bankruptcy petition by no later than November 1, 2007, the date it caused to be filed Proof of Claim 2 (the "Proof of Claim"). ( Id . at ¶ 11.)
Although Lengyel's mortgage payments were eventually made by a wage attachment order, she was aware that there would be some delay until this order was entered and implemented by her employer. ( Id . at ¶ 12.) As such, Lengyel made two partial payments directly to Citi to ensure that her mortage remained current. ( Id .)
The first post-petition payment that she made was for $468.31 and was received by Citi on November 5, 2007. ( Id . at ¶ 13.) This payment was appropriately credited by Citi. ( Id .)
The second post-petition payment made by Lengyel was for $1, 067.60, and it was received by Citi on or about November 13, 2007. ( Id . at ¶¶ 14-15.) Nevertheless, "for years" the servicer of the mortgage denied that this second post-petition payment was ever made (the "missing payment"). ( Id . at ¶ 16.) The failure to give Lengyel credit for this payment contributed to the Defendants' belief that the mortgage was not current. ( Id . at ¶ 17.) Thus, Citi denied that it received the second payment. ( Id . at ¶ 18.) And, after the mortgage was transferred to Chase Home Finance, LLC ("Chase"), Chase also denied that the second payment had ever been made. ( Id .)
Lengyel's proposed bankruptcy plan was confirmed on January 9, 2008. ( Id . at ¶ 20.) The next day, Citi indicated by facsimile through its counsel to Lengyel that she was sixty days or more delinquent on the post-petition mortgage payments. ( Id . at ¶ 21.) That facsimile also requested Lengyel's concurrence with a motion for relief from the automatic stay. ( Id .) In fact, however, Lengyel was only ten days behind on her mortgage when that communication was sent. ( Id . at ¶ 23.)
Lengyel's counsel contacted Citi's attorney and explained that the payments should have been made pursuant to the wage attachment order. ( Id . at ¶ 24.) Lengyel's counsel further explained that under the terms of the mortgage as modified by the confirmed bankruptcy plan, it would have been impossible for Lengyel to have been sixty days delinquent on the mortgage. ( Id .)
Citi's counsel also sent a facsimile on April 17, 2008. ( Id . at ¶ 26.) That facsimile falsely stated that the mortgage was due for February 2008, when, in fact, the loan was current. ( Id . at ¶ 27.) Similarly, on June 10, 2008, Citi's counsel sent a facsimile indicating that the loan remained outstanding for the months of April through June 2008. ( Id . at ¶¶ 29-30.) Again, however, the loan was current as of that date. ( Id . at ¶ 30.) The June 10, 2008 facsimile also indicated that $362.46 in late charges were owed. ( Id . at ¶ 31.)
On June 11, 2008, Lengyel's counsel contacted Citi's bankruptcy counsel and obtained a post-petition payment history. ( Id . at ¶ 32.) The history failed to include the missing payment. ( Id .) The history also did not include two payments that had been received from Lengyel's employer on March 28, 2008 and April 7, 2008. ( Id .) Lengyel's counsel subsequently obtained documentation from Lengyel's employer that the checks sent to Citi in March and April 2008 had been cashed. ( Id . at ¶ 33.) After being provided with such documentation, Citi applied those payments to Lengyel's account. ( Id .)
"No later than March 6, 2009, the loan was transferred to Chase." ( Id . at ¶ 34.) On March 6, 2009, a notice of the transfer of the claim was filed in Lengyel's bankcruptcy case, and, as a result, Chase became the holder of the interest identified on the Proof of Claim Form, at the latest, on March 6, 2009. ( Id . at ¶¶ 35-36.)
On June 16, 2009, Chase retroactively increased the mortgage payment, which it indicated would take effect on May 1, 2009. ( Id . at ¶ 37.) The confirmed bankruptcy plan, however, required Chase to send any notice of payment change to Lengyel and her counsel within ten days of any change to the payment. ( Id . at ¶ 39.)
On July 2, 2009, Chase's counsel sent a facsimile to Lengyel falsely stating that the loan was delinquent from November 2008 through June 2009. ( Id . at ¶ 41.) That facsimile also sought Lengyel's concurrence with a motion for relief from the automatic stay. ( Id . at ¶ 42.)
On November 9, 2009, Chase's counsel sent a facsimile falsely stating that the loan was delinquent for over a year, from November 2008 through November 2009. ( Id . at ¶¶ 43-44.) The November 9, 2009 facsimile also proposed that Lengyel agree to a stipulation in lieu of motion for relief from the automatic stay. ( Id . at ¶ 45.) The stipulation would have required Lengyel to agree ...