UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
IN RE:
DENISE
ANN MOORE CASE NO. 00-20828
DEBTOR
OPINION
AND ORDER
This matter is before the court upon motion by the
debtor herein to enforce a reaffirmation agreement, and the motion by creditor,
Citimortgage, formerly known as Fidelity National Foreclosure Solutions, to
clarify and interpret the reaffirmation agreement between the parties, permit
resumption of a pending foreclosure proceeding in state court, or,
alternatively, to declare the reaffirmation agreement void. The parties filed supplemental briefs after
the court=s hearing on the motions on April 10, 2001.
After the debtor filed the present bankruptcy case,
the debtor and creditor entered into a timely reaffirmation agreement which is
contained in the record herein. That
agreement was executed by the debtor on June 19, 2000 and by the creditor,
Citimortgage, on June 14, 2000. At the
time this bankruptcy case was filed, the debtor was apparently substantially in
arrears in payments under the original terms of the note and mortgage. After the execution of the reaffirmation
agreement, the debtor tendered and the creditor accepted three monthly payments
in the amount of $693 each. Three
subsequent payments were apparently tendered and rejected by the creditor and
demand was made for the debtor to cure the arrearage on the mortgage which
appears to be $15,505.40.
The question here involves the interpretation of the
reaffirmation agreement. That agreement
appears to have been drafted by the creditor and any ambiguities therein should
be interpreted against the creditor.
Case law makes plain that a reaffirmation agreement
may vary or modify the terms of the original note and mortgage or may simply
adopt those terms. In re Moore,
50 BR 301 (Bankr. S.D. Ohio 1985). In
re Hotujac, 102 BR 733 (Bankr. W.D. Missouri 1989).
The reaffirmation agreement in question here restates
the unpaid principal amount in the amount of $71,003.04 and the debtor promises
to make payments in the amount of $693, which apparently, was the original
payment amount in the note and mortgage.
The third paragraph of the reaffirmation agreement clearly adopts all of
the covenants, terms and conditions of the original note and mortgage. The fifth paragraph of the reaffirmation
agreement appears to be the source of the plaintiff=s contention that the reaffirmation agreement was effectively
an extension of the loan for the period of time necessary to pay the uncured
arrearage. That paragraph reads as
follows:
AFurther, the undersigned agree(s) that upon an uncured
default of any one installment for a period or more than thirty (30) days, the
entire balance herein reaffirmed shall be immediately due and payable.@
Arguably, this paragraph could be construed to reflect
a new agreement. However, upon a
reading of the instrument as a whole, it is plain to the court that the parties
agreed to reaffirm the old obligation with all of its original terms and the
language of the fifth paragraph appears to the court to be only a statement of
terms of default. To the extent that
such terms of default differ from the original mortgage, the terms of the
reaffirmation agreement would control. It does not, however, cure or waive the
already existing default at the time of the reaffirmation.
Accordingly, the reaffirmation agreement appears to
have been breached by the debtor by her failure to comply with the terms of the
original note and mortgage by curing the arrearage therein.
It is, accordingly, ORDERED AS FOLLOWS:
1)
That the creditor,
Citimortgage, should be permitted to proceed with the foreclosure proceeding
which it has filed in state court; and
2)
It is further ordered
that the motion by the debtor herein to enforce the reaffirmation agreement, to
the extent that it seeks a different interpretation of the reaffirmation
agreement, be, and the same hereby is, OVERRULED.
Dated this day of April,
2001.
BY
THE COURT
JUDGE
COPIES TO:
James Patrick Dady, Esq.
L. Craig Kendrick, Esq.
Trustee
Debtor