HomeMy WebLinkAbout2007-2148 Civil
RESURGENT CAPITAL SERVICES, : IN THE COURT OF COMMON PLEAS OF
LP, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
JAMIE L. BOLLINGER AND :
JOHN/JANE DOE, :
DEFENDANTS : 07-2148 CIVIL TERM
IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT
BEFORE BAYLEY, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., January 30, 2008:--
On April 16, 2007, plaintiff, Resurgent Capital Services, LP, filed an action to
eject defendants, Jamie L. Bollinger and John/Jane Doe, from 110 Cold Springs Road,
Dickinson Township, Cumberland County, Pennsylvania. Resurgent avers in its
complaint that it purchased 110 Cold Springs Road at a Cumberland County sheriff’s
sale on March 7, 2007, on a writ of execution issued in this court against Jamie L.
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Bollinger and Nikki S. Bollinger. An answer to the complaint was filed by Jamie L.
Bollinger and Nikki S. Bollinger, in which they admitted that their property at 110 Cold
Springs Road was sold by the Sheriff on March 7, 2007, and that the Sheriff delivered a
deed to the plaintiff on March 27, 2007. In new matter, the Bollingers aver:
10. In September 2001, the Bollingers filed for protection under
the United States Bankruptcy Code.
11. The Bollingers named the Plaintiff’s predecessor in title,
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The action in mortgage foreclosure was filed on March 3, 2006.
07-2148 CIVIL TERM
CitiFinancial, Inc., a creditor in that bankruptcy, and served them with
notice of the filing.
12. The Bollingers’ bankruptcy petition requested that the
Plaintiff’s mortgage lien be stripped off, and its claim relegated to
unsecured status.
13. Plaintiff never objected to the proposed treatment under the
bankruptcy plan.
14. The Bollingers’ Plan was confirmed by the bankruptcy court,
and then completed by the Bollingers.
15. The bankruptcy court issued a Discharge enjoining any
creditor from seeking to collect a debt on September 22, 2005.
16. After the Bollingers’ Plan was completed, their case closed,
and the discharge injunction issued, the Plaintiff nonetheless sought to
proceed under a foreclosure action.
* * *
20. When it became apparent that Plaintiff intended to proceed
despite the bankruptcy court’s order, a motion to re-open the case and
reinstate the automatic stay was filed with the bankruptcy court in
December 2006.
23. The bankruptcy court granted the motion to re-open the case
on December 6, 2006, a copy of the electronic notice of filing is attached
hereto as Exhibit “C” and incorporated herein by reference.
24. At this point, the Bollingers’ case remains open and pending
before the bankruptcy court, if in an unusual procedural posture, and the
Plaintiff has failed to obtain relief from the automatic stay.
The docket entry in the bankruptcy court referred to as Exhibit C in paragraph 23
provides: “Motion to Reopen Case granted. Court to sign order enjoining sheriff’s sale
for ninety (90) days.” The Bollingers make legal conclusions in the following averments
in their new matter.
26. Plaintiff’s Complaint should be dismissed because the
obligations, both in personam and in rem, of the Bollingers have been
discharged in bankruptcy.
27. Plaintiff’s Complaint should be dismissed by virtue of the
doctrine of estoppel, where it is unfair and unjust for a creditor to proceed
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07-2148 CIVIL TERM
upon documents it knows to be disputed and in litigation before another
court.
28. Plaintiff’s Complaint should be dismissed by virtue of the
doctrine of res judicata, where the documents underlying Plaintiff’s action
have already be [sic] adjudicated by the court of law having appropriate
jurisdiction over them.
Plaintiff filed a response to the new matter attaching the docket entries of the
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Bollingers’ bankruptcy proceeding in the Middle District of Pennsylvania. The docket
entries show that the Bollingers filed a voluntary petition under Chapter 13 of the
Bankruptcy Law on September 26, 2001. A discharge of debtors was entered on
September 22, 2005. A motion by the Bollingers to reopen the case was filed on
December 5, 2006, and on December 6, 2006, the motion was granted and the court
enjoined the sheriff’s sale for ninety days. That is the last entry on the docket. The
Cumberland County Sheriff’s sale of 110 Cold Springs Road took place after the ninety
day injunction entered by the bankruptcy court on December 6, 2006, expired.
Plaintiff filed a motion for summary judgment in ejectment which was briefed and
3 Washington v. Baxter,
argued on January 23, 2008. In 719 A.2d 733 (Pa. 1998), the
Supreme Court of Pennsylvania set forth the standard for deciding a motion for
summary judgment. A court:
. . . must view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party. Pennsylvania State
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#: 1:01 - bk - 05205 - MDF.
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The Bollingers also responded to plaintiff’s complaint with a counterclaim for
damages. Resurgent Capital has not sought summary judgment on the counterclaim.
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07-2148 CIVIL TERM
University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304
(1992). In order to withstand a motion for summary judgment, a non-
moving party “must adduce sufficient evidence on an issue essential to
his case and on which he bears the burden of proof such that a jury could
return a verdict in his favor. Failure to adduce this evidence establishes
that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Ertrel v. Patriot-News Co., 544
Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996).
Pa. Rule of Civil Procedure 3132 provides:
before delivery
Upon petition of any party in interest of the
of the sheriff’s deed to real property
personal property or , the court
may, upon proper cause shown, set aside the sale and order a resale or
enter any other order which may be just and proper under the
circumstances. (Emphasis added.)
The Bollingers never filed a petition to set aside the sheriff’s sale of their
property. A former property owner cannot collaterally attack the validity of a sheriff sale
Federal National
in the purchaser’s ejectment action against the former owner,
Mortgage Association v. Citiano,
834 A.2d 645 (Pa. Super. 2003), unless the sheriff’s
Meritor
sale was void for want of jurisdiction of either the subject matter or the person.
Mortgage Corp. – East v. Henderson,
421 Pa. Super. 339 (1992). The Bollingers
maintain that there was no in rem jurisdiction over the property at 110 Cold Springs
Road, that was in their estate in bankruptcy, for the Cumberland County Sheriff to sell it
because, as they argue in their brief:
The automatic stay operates as a stay, applicable to the Plaintiff, of any
act to obtain possession of property of the estate (11 U.S.C. § 362(a)(3))
or to enforce any lien against property of the estate (11 U.S.C. § 362
(a)(4)). And, with certain exceptions (none of which are applicable at
bar), the stay of an act against property of the estate under Section
362(a) continues until such property is no longer property of the estate.
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07-2148 CIVIL TERM
11 U.S.C. § 362(c)(1).
In re Ward, In re Siciliano,
The Bollingers cite 837 F.2d 124 (3d Cir. 1988), and
13 F.3d 748 (3d Cir. 1994), for the proposition that legal proceedings, including those
in state courts such as an action in mortgage foreclosure and ejectment conducted in
violation of an automatic bankruptcy stay are void or, at a minimum, voidable.
The United States Code, pertaining to estates in bankruptcy, provides at 11
U.S.C.A. § 541(a):
a petition filed under section 301, 302, or 303 of this title . . .
. . .
operates as a stay
, applicable to all entities, of—
(1)
the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced
before the commencement of the case under this title, or to recover a
claim against the debtor that arose before the commencement of the case
under this title;
(2)
the enforcement, against the debtor or against property of the estate,
of a judgment obtained before the commencement of the case under this
title;
(3)
any act to obtain possession of property of the estate or of property
from the estate or to exercise control over property of the estate;
(4)
any act to create, perfect, or enforce any lien against property of the
estate;
(c)
Except as provided in subsections (d), (e), (f), and (h) of this
section—
(1) the stay of an act against property of the estate under subsection
(a) of this section continues until such property is no longer property
of the estate
; (Emphasis added.)
Knapper v. Bankers Trust Co., as Trustee for Amresco Residential
In
Securities Corp.,
407 F.3d 573 (3d Cir. 2005), the United States Court of Appeals
cited an observer as to the role attributed to Chapter 13’s impact on a residential
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07-2148 CIVIL TERM
mortgage:
Chapter 13 is entitled “Adjustment of Debts of an Individual with
Regular Income.” A Chapter 13 bankruptcy is best envisioned as a
repayment plan organized through the bankruptcy court. In contrast to
Chapter 7, which requires a debtor to give up her non-exempt assets in
return for a discharge of debts, a Chapter 13 debtor proposes a
repayment plan to the court…..
Chapter 13’s greatest significance for debtors is its use as a
weapon to avoid foreclosure on their homes…. Chapter 13 bankruptcies
do not result in destruction of the interests of traditional mortgage lenders.
Under Chapter 13, a debtor cannot discharge a mortgage debt and keep
her home. Rather, a Chapter 13 bankruptcy offers the debtor an
opportunity to cure a mortgage delinquency over time-in essence it is a
statutorily mandated payment plan-but one that requires the debtor to pay
precisely the amount she would have to pay to the lender outside of
bankruptcy. Under Chapter 13, the plan must provide the amount
necessary to cure the mortgage default, which includes the fees and costs
allowed by the mortgage agreement and by state law…. Even though a
debtor must, through reinstatement of her delinquent mortgage by a
Chapter 13 repayment plan or by plan payments that pay the entire
mortgage off over the life of the plan, pay her full obligation to the lender,
Chapter 13 remains the only viable way for most mortgage debtors to cure
defaults and save their homes.
Susan L. DeJarnatt, Once Is Not Enough: Preserving Consumers’
Rights to Bankruptcy Protection, 74 Ind. L.J. 455, 458-59, 495-96 (1999).
sub judice,
In the case there are no disputed facts. The Bollingers filed a
voluntary Chapter 13 bankruptcy proceeding in the Middle District Court of
Pennsylvania on September 26, 2001. The petition triggered an automatic stay under
11 U.S.C.A. § 541(a). On September 22, 2005, a discharge of debtors was entered. A
final decree was entered on September 29, 2005, with a certificate of mailing on
October 1, 2005. Over a year later, on December 5, 2006, the Bollingers filed a
“Motion to Reopen Chapter 13 Case.” That motion was not a petition that triggered an
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07-2148 CIVIL TERM
automatic stay under 11 U.S.C.A. § 541(a). To the contrary, on December 6, 2006, the
Bankruptcy Court entered a specific, limited stay enjoining the sheriff’s sale of 110 Cold
Springs Road for ninety days. The sheriff sale took place on March 7, 2007, after the
ninety day stay expired. Clearly, the sheriff sale of 110 Cold Springs Road was not in
violation of the automatic stay that was effective from when the bankruptcy petition was
filed on September 26, 2001, until the final decree was entered on September 29,
2005, at which time the property was no longer part of a bankrupt estate. The sheriff
sale of 110 Cold Springs Road on March 7, 2007, for which a deed was delivered on
March 27, 2007, is not void or voidable. This court had subject matter jurisdiction over
the property when it was sold by the sheriff.
There being no disputed issue of fact that Resurgent owns 110 Cold Springs
Road, it has a right to immediate possession, and defendant’s are in wrongful
possession of that property. Therefore, the following order is entered.
ORDER OF COURT
IT IS ORDERED
AND NOW, this day of January, 2008, that summary
judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L.
Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township,
Cumberland County, Pennsylvania.
By the Court,
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Edgar B. Bayley, J.
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Dale F. Shughart, Jr., Esquire
Steven K. Eisenberg, Esquire
261 Old York Road
Suite 410
Jenkintown, PA 19046
For Plaintiff
Matthew J. Eshelman, Esquire
P.O. Box 1080
Camp Hill, PA 17011-1080
For Defendants
:sal
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RESURGENT CAPITAL SERVICES, : IN THE COURT OF COMMON PLEAS OF
LP, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
JAMIE L. BOLLINGER AND :
JOHN/JANE DOE, :
DEFENDANTS : 07-2148 CIVIL TERM
IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT
BEFORE BAYLEY, J. AND EBERT, J.
ORDER OF COURT
IT IS ORDERED
AND NOW, this day of January, 2008, that summary
judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L.
Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township,
Cumberland County, Pennsylvania.
By the Court,
Edgar B. Bayley, J.
Dale F. Shughart, Jr., Esquire
Steven K. Eisenberg, Esquire
261 Old York Road
Suite 410
Jenkintown, PA 19046
For Plaintiff
Matthew J. Eshelman, Esquire
P.O. Box 1080
Camp Hill, PA 17011-1080
07-2148 CIVIL TERM
For Defendants :sal
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