Opinion
Case No. 00-36749 Adv. No. 12-3117
03-24-2014
In re: REBECCA L. FOLDEN, Debtor REBECCA L. FOLDEN, Plaintiff v. GREEN TREE SERVICING, LLC ET AL., Defendants
Andrew Zeigler, served electronically (Counsel for the Plaintiff) Joel E. Sechler, served electronically (Counsel for the Defendant)
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
________________
Guy R. Humphrey
United States Bankruptcy Judge
Judge Humphrey
Chapter 13
Decision Granting Defendants' Joint Motion for
Judgment on the Pleadings, Without Prejudice
I. Procedural Background
On December 22, 2000 the debtor, Rebecca L. Folden, filed a petition for relief under Chapter 13 of the Bankruptcy Code. Among other things, Folden's confirmed Chapter 13 plan sought to cure pre-petition arrearages owed on a mortgage loan secured by her residence (estate docs. 8, 21 & 25). Folden completed her Chapter 13 plan payments and the Chapter 13 Trustee filed a motion to order GMAC Mortgage Corporation ("GMAC") to "adjust [the] real estate mortgage" to reflect that the loan was current through March 2005 (estate doc. 90). This motion was a standard Chapter 13 filing in this court prior to Federal Rule of Bankruptcy Procedure Rule 3002.1 becoming effective. An order granting that motion was entered without objection on March 18, 2005 (estate doc. 92). Folden received her Chapter 13 discharge on April 8, 2005 and the case was administratively closed on June 16, 2005.
Three years later, on May 16, 2008, Folden moved to re-open her case to pursue a contempt motion against GMAC, alleging GMAC failed to comply with the court's March 18, 2005 order by refusing to accept mortgage payments after the Chapter 13 discharge, culminating in a state court foreclosure action that was filed in December 2006 (estate doc. 101). The court granted the motion to re-open on June 12, 2008 (estate doc. 102); however, Folden did not file the contempt motion or any other filing and the Clerk re-closed the case February 24, 2009. A second foreclosure was apparently filed in July 2009 (doc. 39, ¶ 12). Nineteen months later, on September 14, 2010, Folden again moved to re-open her Chapter 13 case (estate doc. 106). In that motion, Folden alleged that GMAC agreed to dismiss the 2006 foreclosure and did so in June 2009, but subsequently filed another foreclosure action in July 2009. The motion to re-open was granted on November 30, 2010 (estate doc. 107). Another 15 months passed without a filing, and on March 5, 2012, the court issued an order requiring Folden to file a status report or take some other appropriate action (estate doc. 110) or the case would be re-closed. This order apparently led to the present adversary proceeding being filed on April 13, 2012 (doc. 1).
The original complaint initiating this adversary proceeding alleged that GMAC violated 11 U.S.C. § 524(i) by failing to properly credit payments paid to GMAC during the Chapter 13, and also included various state law causes of action (doc. 1). GMAC filed an answer on May 10, 2012 (doc. 3). However, on May 22, 2012, GMAC filed a notice of bankruptcy and suggested this adversary proceeding was stayed by the Chapter 11 filing in the Bankruptcy Court for the Southern District of New York, Residential Capital LLC, Case No. 12-12020 (doc. 6). This court, after initially staying this adversary proceeding (doc. 12), determined the automatic stay did not stay this proceeding pursuant to a limited omnibus relief from stay order entered in the Residential Capital case and re-activated it (doc. 16).
On March 25, 2013 the court granted Folden's motion for leave to file an amended complaint (doc. 26). Folden filed an amended complaint on April 25, 2013 (doc. 28). On May 22, 2013, GMAC again filed a notice of bankruptcy and suggestion of stay (doc. 30). Green Tree filed an answer on June 6, 2013 (doc. 34). Following a pretrial conference, an agreed order was entered to allow Folden to further amend her complaint (doc. 37). By this point in time the mortgage loan in question had been sold through a § 363 sale in the Residential Capital bankruptcy case to Federal National Mortgage Association ("Fannie Mae") and was to be serviced by Green Tree ("Green Tree"). On August 27, 2013 Folden filed a second amended complaint (doc. 39), this time with both Fannie Mae and Green Tree named as defendants (Fannie Mae and Green Tree will be collectively referred to as the "Mortgagee"). The complaint seeks damages under §§ 524 and 105 for violation of the discharge injunction issued in Folden's Chapter 13 case in 2005.
Bankruptcy Code § 363 provides for the sale of property of bankruptcy estates through a debtor's bankruptcy case.
The Mortgagee appears to argue Green Tree is the only entity potentially subject to liability because the actions allegedly being taken were by Green Tree. However, as servicer of the loan, it appears that Green Tree is an agent for Fannie Mae. Any future motion by Folden should allege sufficient facts and law to address the basis for any potential liability or culpability of any respondent named in the motion.
On October 18, 2013 the Mortgagee moved for judgment on the pleadings (doc. 50) pursuant to Federal Rule of Civil Procedure 12(c), applicable through Federal Rule of Bankruptcy Procedure 7012(b). Folden filed a response on November 22, 2013 (doc. 54) and the Mortgagee filed a reply on December 16, 2013 (doc. 57), at which time the court took the matter under advisement.
II. Legal Analysis
A. Standard of Review
Federal Rule of Civil Procedure 12(c), applicable by Bankruptcy Rule 7012, states that "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." The standard of review under Rule 12(c) is the same as a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion must be granted only if the moving party is nevertheless clearly entitled to judgment." Id. (quoting JP Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007).
The factual allegations must put the defendant upon notice as to the claims being alleged and provide a sufficient factual predicate to make the allegations plausible, and not merely possible. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009)). Federal courts are not obligated to accept as true legal conclusions couched as factual allegations. Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). While detailed factual allegations are not necessary, the allegations must be sufficiently detailed to create more than speculation of a cause of action. Id. A claim is plausible if the factual allegations are sufficient to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." HDC, LLC v. Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012) (citations and internal quotation marks omitted).
B. Subject Matter Jurisdiction
As explained below, as relates to the present motion, this court has jurisdiction pursuant to 28 U.S.C. § 1334 and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (O). The bare allegations concern a violation of two bankruptcy court orders. Although the court is dismissing the complaint for failure to raise a claim, the vague allegations in this complaint also may raise jurisdictional concerns if any future filed motion lacks specificity.
As background, this Chapter 13 case pre-dates the effective date of § 524(i), which provides that:
The willful failure of a creditor to credit payments received under a plan confirmed under this title, unless the order confirming the plan is revoked, the plan is in default, or the creditor has not received payments required to be made under the plan in the manner required by the plan (including crediting the amounts required under the plan), shall constitute a violation of an injunction under subsection (a)(2) if the act of the creditor to collect and failure to credit payments in the manner required by the plan caused material injury to the debtor.11 U.S.C. § 524(i). Therefore, although this case essentially addresses an allegation of a failure to allocate Chapter 13 plan payments, § 524(i) does not apply to this litigation because the petition was filed prior to effective date of § 524(i), which was added as part of the larger changes included within the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). Tidewater Fin. Co. v. Curry (In re Curry), 347 B.R. 596, 600 n. 3 (B.A.P. 6th Cir. 2006) (citing Bankruptcy Abuse Prevention Act and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 1501(b)(1), 119 Stat. 23, 216 (unless otherwise provided, BAPCPA does not apply to cases commenced prior to the effective date of October 17, 2005).
Prior to the enactment of § 524(i), the Sixth Circuit held that there is no private right of action for a discharge violation. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 422-23 (6th Cir. 2000). However, debtors may pursue a contempt proceeding for violations of the discharge order. Id. at 423 n. 1. This litigation is such a contempt action based on the discharge order and, more specifically, the order deeming the mortgage current, which may be raised pursuant to § 105.
Thus, even if the Mortgagee is correct that this court should follow the case law that concludes, for pre-BAPCPA cases, a discharge order does not address long term secured debts being cured and reinstated in a Chapter 13 plan, the contempt action would still apply to the specific order deeming the mortgage current. Therefore, the contempt action may not be dismissed on the basis that the mortgage loan is inapplicable to the discharge order.
Therefore, this court has jurisdiction over this adversary proceeding to enforce its own orders under its civil contempt powers. Holley v. Kresch Oliver, PLLC (In re Holley), 473 B.R. 212, 214 (Bankr. E.D. Mich. 2012).
Having made this jurisdictional determination for the present time, it bears reminding the parties that subject matter jurisdiction must be raised by the court at any time it appears to be in question. Fed. R. Civ. P. 12(h)(3) (applicable by Fed. R. Bankr. P. 7012(b)). It is far from clear that this litigation, if it continues, will remain within this court's jurisdiction once the details of the allegations are clarified. The only sentences of the complaint directly addressing that issue are as follows: "Despite this Court's order, after this case was discharged, GMAC, without just cause, refused to accept further mortgage payments and has unjustly returned them to the Debtor." and "Green Tree further informed Debtor that she allegedly owes an inflated amount on her mortgage loan that is inconsistent with and violates the Court Order that required GMAC to Adjust the Real Estate Mortgage." (doc. 39, ¶¶ 10, 16). The next sentence describes a foreclosure action that began in December 2006, which was 21 months after the order deeming the mortgage current was entered (doc. 39, ¶ 11). A subsequent foreclosure was commenced in July 2009 (doc. 39, ¶ 12). These recitations provide scant detail as to what occurred between the completion of the Chapter 13 plan, the immediate time period thereafter, the December 2006 foreclosure, the July 2009 foreclosure, and events until the present day.
To the extent that Folden timely made all payments that were due after the order was entered deeming the mortgage current in 2005 - and such facts (as opposed to conclusions) are sufficiently alleged, and the facts as alleged show that GMAC refused those payments and the Mortgagee perpetuated that contempt by failing to deem the mortgage current, a contempt remedy may be available. However, even assuming the mortgagee made some miscalculation, that error, intentional or not, could concern the application of payments made post-discharge or other post-discharge events. In other words, once the mortgagee deems a mortgage current, the bankruptcy court loses jurisdiction over that mortgage loan and all disputes concerning the application or misapplication of payments to that loan. Thus, once the mortgage is deemed and treated current, this court lacks jurisdiction over a mortgagee's subsequent breach of the terms of the mortgage loan. Any such claim must be pursued under applicable non-bankruptcy law in a forum other than the bankruptcy court. Post-discharge disputes of long term mortgage loans cured and reinstated in a Chapter 13 generally are governed by state law and are addressed by state courts of general jurisdiction. Allegations of mortgagee conduct that were committed within some temporal proximity to the completion of the Chapter 13 plan are not sufficient to invoke this court's jurisdiction. Under the circumstances of this case, the court is particularly concerned when the orders in question were entered nine years ago and, in the interim, two foreclosure actions have been filed, and other payments may have been made, and other disputes may have arisen, and settlements may have been reached.
C. Contempt is to be Pursued as a Contested Matter
Although not raised by the Mortgagee, this adversary proceeding, which pursues relief under a contempt theory for a discharge violation, should have been filed as a contested matter. Fed. R. Bankr. P. 9020; Standard Indus., Inc. v. Aquila, Inc. (In re C.W. Mining Co.), 625 F.3d 1240, 1246-47 (10th Cir. 2010). See also Marshall v. PNC Bank, N.A., 491 B.R. 217, 234-35 (Bankr. S.D. Ohio 2012); and Frambes v. Nuvell Nat'l Auto Fin. (In re Frambes), 454 B.R. 437, 442-43 (Bankr. E.D. Ky. 2011). However, since an adversary proceeding generally provides as much or more due process than a contested matter, without some prejudice shown, the court normally might consider this error harmless and proceed to the merits. See Motichko v. Premium Asset Recovery Corp. (In re Motichko), 395 B.R. 25 (Bankr. N.D. Ohio 2008) (allowing, without discussion, contempt to be pursued through an adversary proceeding); Lohmeyer v. Alvin's Jewelers (In re Lohmeyer), 365 B.R. 746 (Bankr. N.D. Ohio 2007) (similar). See also In re Ballard, 502 B.R. 311, 323 n. 4 (Bankr. S.D. Ohio 2013) (stay violation action may proceed by contested matter). However, the complaint must be dismissed for another reason entirely. As is detailed below, the complaint lacks the necessary minimal factual specificity and therefore fails to state a valid claim for which this court can grant relief. See Twombly, 550 U.S. at 555.
The court is not addressing whether a § 524(i) filing should be filed as a motion or an adversary proceeding.
The Mortgagee also raises that this litigation is barred by the sale order issued as part of the § 363 sale in the Residential Capital bankruptcy. The Foldens respond that this litigation is statutorily exempted by § 363(o) and such exemption is recognized in the sale order. Section 363(o) states that:
Notwithstanding subsection (f), if a person purchases any interest in a consumer credit transaction that is subject to the Truth in Lending Act or any interest in a consumer credit contract (as defined by section 433.1 of title 16 of the Code of Federal Regulations (January 1, 2004), as amended from time to time), and if such interest is purchased through a sale under this section, then such person shall remain subject to all claims and defenses that are related to such consumer credit transaction or such consumer credit contract , to the same extent as such person would be subject to such claims and defenses of the consumer had such interest been purchased at a sale not under this section.First, the Mortgagee is correct that the complaint does not sufficiently plead that the mortgage loan is a "consumer credit transaction" subject to TILA, although it appears it is. Second, it also appears § 363(o) is applicable because the Residential Capital petition was filed after the effective date of BAPCPA. The contempt remedies, while limited under the law of contempt separately discussed, would be within the exception of § 363(o) to sales otherwise free and clear under § 363(f). This is consistent with the broad language of any claim or defense "related to such consumer credit transaction." An assignee, under limited circumstances, may be liable for contempt of an order addressed to the assignor. Therefore, the liability of the Mortgagee is addressed through the substantive federal law of contempt. However, as discussed, the allegations are insufficient to put the Mortgagee on notice as to how they are liable for contempt.
D. Folden fails to Articulate a Specific Basis for Contempt Against the Mortgagee
The Sixth Circuit has stated that in order to establish contempt of a court's order, "the petitioner must prove by clear and convincing evidence that the respondent violated the court's prior order." Grace v. Center for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996) (quoting Glover v. Johnson, 934 F.2d 703, 707 (6th Cir. 1991)); N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir. 1987). The order must be "definite and specific" (Cincinnati Bronze, 829 F.2d at 591) or "clear and unambiguous." Grace, 72 F.3d at 1241 (citing Project B.A.S.I.C v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991) (citing numerous cases)). "Unbroken lines of authority . . . caution us to read court decrees to mean rather precisely what they say," and ambiguities must be resolved in favor of persons charged with contempt. NBA Properties, Inc. v. Gold, 895 F.2d 30, 32 (1st Cir. 1990) (Breyer, J.).
A nonparty may be held in contempt of a court's order (including an injunction), if the party is "guilty of aiding or abetting or acting in concert with a named defendant or his privy in violating the injunction . . ." Marshak v. Treadwell, 595 F.3d 478, 486-87 (3rd Cir. 2009) (citing Savarese v. Agriss, 883 F.2d 1194, 1209 (3rd Cir. 1989)). See also Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 674 (3rd Cir. 1999) ("One with knowledge of a court order who abets another in violating the order is surely in contempt."); Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990) ("[T]hose who have knowledge of a valid court order and abet others in violating it are subject to the court's contempt powers."). As stated in Regal Knitwear Co. v. National Relations Board:
The Federal Rules of Civil Procedure provide that: "Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." This is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in "privity" with them, represented by them or subject to their control.324 U.S. 9, 13-14 (1945).
Federal Rule of Civil Procedure 65, incorporated into the Bankruptcy Rules through Rule 7065, provides that an injunction issued under Rule 65 "binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;Fed. R. Civ. P. 65(d)(2).
(B) the parties' officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)."
Thus, contempt may be pursued in appropriate circumstances against those to whom a business has been transferred, whether as a means of evading judgment or for other reasons. Walling v. James v. Reuter, Inc., 321 U.S. 671 (1944); Computer Searching Service Corp. v. Ryan, 439 F.2d 6 (2nd Cir. 1971). See Swetland v Curry, 188 F.2d 841 (6th Cir. 1951) (the Sixth Circuit stated this proposition in the negative - "A person not a party to an injunction suit may not be found in contempt for violating injunction unless he is shown to be identified with or is aider and abettor of party originally enjoined."). The rationale for this principle is that, without such an exception, parties might "nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding." Regal Knitwear, 324 U.S. at 14; Max's Seafood Cafe, 176 F.3d at 674 ("The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others." (quoting Operation Rescue, 919 F.2d at 871)).
An entity can be held in contempt of an injunction if it purchased or acquired the business of a predecessor and continued the contemptuous conduct of its predecessor with knowledge that its predecessor was in violation of the injunction. Thus, an employer's successor, who purchased and continued the business with knowledge that its predecessor had committed an unfair labor practice in discharging an employee, and failed to reinstate the employee with back pay, even though the successor did not itself perpetrate the unfair labor practice, was held in contempt of the injunction. Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). See also South Cent. Bell Tel. Co. v. Constant, Inc., 304 F. Supp. 732 (E.D. La. 1969), aff'd 437 F.2d 1207 (5th Cir. 1971) (When the telephone company was apprised of the fact that its subscriber was, by use of the telephone company's equipment, violating the injunction imposed by the court by answering the subscriber's phone using the name complained of, the telephone company had a duty not to act in any way in concert with subscriber to effectuate or perpetuate the violation, and where the telephone company had means to prevent its equipment from being used to violate the injunction, its failure to do so would, at the very least, have amounted to passive participation in the violation.). Whether an entity may be held responsible on a successor liability theory turns on whether there is a "substantial continuity of identity" between the two entities. Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345, 1355 (Fed. Cir. 1998). This test has been applied to determine whether a non-party is subject to an injunction as a successor to the enjoined entity. Id.
The Supreme Court has stated that "whether one brings himself in contempt as a 'successor or assign' depends on an appraisal of his relations and behavior and not upon mere construction of terms of the order." Regal Knitwear Co., 324 U.S. at 15. Further, nonparties to an injunction or order are "differently situated" than parties to the original order. Additive Controls & Measurement Sys., 154 F.3d at 1353. Non-parties to an injunction are subject to contempt sanctions if they have knowledge of the injunction and that their conduct violates the injunction. Good faith is not a defense to contempt, but it is relevant to determine whether the non-party knowingly violated the order. Id.
Thus, the Mortgagee conceivably could be held in contempt for violating this court's order deeming the mortgage current if Folden establishes by clear and convincing evidence that: a) the order was "definite and specific" or "clear and unambiguous;" b) the Mortgagee had knowledge of the order; and c) the Mortgagee violated that order or has perpetuated the violation of that order as a successor or assignee.
The Mortgagee has argued New York law would apply to any successor theory because the sale has a New York choice of law provision. The court need not determine that issue at this stage, except to note the standard is substantively similar to the federal case law for contempt. See MBIA Ins. Corp. v. Countrywide Home Loans, 965 N.Y.S. 2d 284, 291 (N.Y. Sup. Ct. 2013) (discussion of New York law concerning successor liability).
The complaint does not state sufficient facts to support a claim that: a) GMAC or the Mortgagee violated the order deeming the mortgage current by refusing to accept payments when the loan was current and tried to collect obligations that were resolved through the Chapter 13 bankruptcy; and b) that the Mortgagee is perpetuating that violation now that it took over the loan under a "successor" or "assignee" theory. The allegations in the complaint about the loan being current when the Mortgagee stopped accepting payments and that the Mortgagee has perpetuated the contempt are mere conclusory statements unsupported by any meaningful allegations of fact - the type of bare, conclusory allegations that Iqbal and Twombly found insufficient to state a claim for relief to be granted.
E. The Complaint Fails to Articulate a Specific Basis for Declaratory Relief, Actual Damages, or Punitive Damages
Sanctions imposed upon a party for a civil contempt violation can be for two purposes: to coerce the contemnor into compliance; and to compensate the aggrieved party for losses incurred as a result of the contempt. Thomasville Furniture Indus., Inc. v. The Elder Beerman Stores, Corp., 250 B.R. 609, 620 (Bankr. S.D. Ohio 1988) (citing Ross v. Meyers, 883 F.2d 486, 491 (6th Cir. 1999); In re Borowski, 2013 WL 3759794, at *1 (E.D. Tenn. July 15, 2013). Folden seeks declaratory relief that the mortgage loan is presently current, actual damages, punitive damages, costs and fees. First, finding a mortgage loan "current" after years of post-discharge events may be beyond this court's jurisdiction because it ultimately concerns years of payments, interest charges, escrow payments and other fees unrelated to the Chapter 13. Cf. Uber v. Nelnet, Inc. (In re Uber), 443 B.R. 500, 506-07 (Bankr. S.D. Ohio 2011) (bankruptcy courts lack subject matter jurisdiction to determine post-petition interest and costs related to a non-dischargeable student loan). The complaint does not provide sufficient information as how much has been paid to the prior or present holder of the note (or its servicer) post-discharge. The complaint does not list the estimated current balance on the loan or when, if it all, mortgage loan payments were made on the loan, which payments were missed during the past nine years, and whether any post-discharge payments were accepted by the holder of the note. Folden essentially argues that GMAC and now the Mortgagee have refused to accept payments in violation of the discharge order and the order deeming the mortgage current and that the current balance is inflated, but gives no figures or context. In short, the complaint has very little explanation of what conduct has been taken by Folden, GMAC or the Mortgagee over the past nine years and the specific harm, if any, Folden has suffered.
The Sixth Circuit recently explained that bankruptcy courts have limited authority to award punitive damages. Adell v. John Richards Homes Building Co., L.L.C. (In re John Richards Homes Building Co., L.L.C., 2013 WL 6097548, at *14 (6th Cir. Nov. 20, 2013) ("bankruptcy courts lack the authority to award serious noncompensatory punitive damages.").
While determinations as to strategy, prosecution and defense, and settlement negotiations related to this litigation are at the complete discretion of the parties, the parties may wish to consider focusing on determining the correct balance of the mortgage loan in an effort to resolve this litigation.
III. Conclusion
For all these reasons, the complaint is dismissed without prejudice to the filing of any contempt motion pursuant to Federal Rule of Bankruptcy Procedure 9020. In accordance with the law of the Sixth Circuit, the court dismisses this complaint without prejudice to ensure that the parties' rights and interests are appropriately decided upon the merits and not solely based on defects in the pleadings. An allegation that a mortgagee (or its servicer agent) knowingly failed to comply with a federal court order is a serious allegation. The primary purpose of Folden's underlying Chapter 13 case was to cure all arrearages and reinstate a secured mortgage loan so it could be continued to be paid post-discharge. Any future motion must articulate specific factual allegations supporting Folden's contention that the mortgagee violated the order deeming the mortgage current, relate those events to the present request for declaratory relief and damages, and allege facts that show the Mortgagee as a non-party to the discharge injunction and order deeming the mortgage current may be held in contempt for those violations. Copies to: Andrew Zeigler, served electronically (Counsel for the Plaintiff)
Joel E. Sechler, served electronically (Counsel for the Defendant)
Pursuant to Federal Rule of Bankruptcy Procedure 9014(c), the court will apply Federal Rules of Civil Procedure 5, 8, 10 & 12 (applicable by Bankruptcy Rules 7005, 7008, 7010 and 7012(b)), to any future filed contempt motion. The court finds it paramount that the significant gatekeeper issue of subject matter jurisdiction and related Rule 12 issues are addressed in any future filings. This court cannot determine the underlying issues in this dispute unless and until it is satisfied there are factual allegations of specific conduct constituting contempt of the 2005 order deeming the mortgage current. In addition, the gravity of contempt allegations and contempt relief warrant application of the pleading requirements of the Federal Rules of Civil Procedure.