Opinion
BANKRUPTCY CASE NO: 08-10300-RAG
01-27-2012
IN RE Troy & Shermaine Pollard, Debtors.
SEEN AND CONSENTED TO: Mark A. Neal, Esquire Federal Bar No.: 10658 Attorney for the U.S. Trustee for Region Four: W. Clarkson McDow, Jr. SEEN AND CONSENTED TO: Evan M. Goldman, Esquire Federal Bar No.: 27311 Attorney for Capital One Auto Finance, a Division of Capital One, N.A.
______________________
U. S. BANKRUPTCY JUDGE
STIPULATION AND CONSENT ORDER RESOLVING
U.S. TRUSTEE'S OBJECTION TO CLAIM
OF CAPITAL ONE AUTO FINANCE
WHEREAS, the following facts appear from the record of this case:
1. On January 7, 2008, Troy and Shermaine Pollard ("Debtors") filed a joint voluntary petition under chapter 13;
2. On February 26, 2008, Capital One Auto Finance, Inc. (hereinafter "COAF"), a creditor, through its third party agent and claims processer Ascension Capital Group, Inc. ("Ascension"), filed a proof of claim (Claim #9-1) in the amount of $33,690.38, evidencing a claim secured by a lien on a vehicle.
Effective April 1, 2011, Capital One Auto Finance, Inc. legally changed its corporate name and designation to Capital One Auto Finance, a Division of Capital One, N.A.
3. Debtors objected to this claim on the basis inter alia that it failed to credit the Debtors for the reasonable value of the vehicle, which they had previously surrendered to COAF;
4. Without opposition thereto, and after a hearing on the merits, the Court on May 5, 2008, sustained the objection and disallowed the claim;
5. On September 19, 2008, Ascension, on COAF's behalf, filed an amended claim (#9-2) in the amount of $17,653.87, to which the Chapter 13 trustee objected on the basis that the original proof of claim had been disallowed in its entirety and the purported amended claim was filed beyond the bar date;
6. COAF did not file a response to the objection, and the Court sustained the Chapter 13 trustee's objection on November 7, 2008;
7. On April 11, 2011, Ascension, on behalf of COAF, filed "Amended Claim #9" (#9-3) in the amount of its original claim that had been disallowed in its entirety;
8. The U.S. Trustee objected to allowance of this amended claim on or about December 5, 2011, on several grounds, including that it is time-barred, precluded by res judicata, violates prior Court Orders in this case, and fails to accord due process of law, imposing unnecessary costs and burdens upon the Court, the Chapter 13 trustee, and the Debtors.
WHEREAS, the U.S. Trustee and COAF desire to resolve the dispute represented herein by the terms of this Stipulation and Consent Order Resolving The U.S. Trustee's Objection to Claim of Capital One Auto Finance (the "Stipulation and Consent Order").
NOW, THEREFORE, the U.S. Trustee and COAF (hereinafter collectively the "Parties") do agree, stipulate and consent as follows:
1. The foregoing recitals are true and correct;
2. The Parties consent to the entry of this Order, denying COAF's Claim (#9-3) with prejudice;
3. COAF shall file no further claims in this case;
4. Within ten (10) days after the entry of this Order, COAF shall pay, or cause Ascension to pay on behalf of COAF, to the Chapter 13 Trustee in this case, the sum of $1,000, which shall be credited to the plan base and reduce the balance due from the Debtors to complete their confirmed Chapter 13 plan;
5. COAF shall undertake a review of the processes and procedures employed by Ascension for receiving, reviewing and responding to objections to claims by parties, as well as all orders entered thereon, and shall direct Ascension to utilize procedures which provide for the receipt and review of claim objections and related orders;
6. COAF, in the event it utilizes or shall utilize claims processors or agents other than Ascension for the purpose of filing bankruptcy proofs of claim in consumer bankruptcy cases, shall institute the same directives set forth in Paragraph 5 hereof on such claims processors or agents.
Having reviewed the terms and conditions of this Stipulation and Consent Order and finding the terms and conditions contained herein to be reasonable, it is by the United States Bankruptcy Court for the District of Maryland,
ORDERED, that this Stipulation and Consent Order is hereby APPROVED.
SEEN AND CONSENTED TO:
______________________
Mark A. Neal, Esquire
Federal Bar No.: 10658
Attorney for the U.S. Trustee
for Region Four:
W. Clarkson McDow, Jr.
SEEN AND CONSENTED TO:
______________________
Evan M. Goldman, Esquire
Federal Bar No.: 27311
Attorney for Capital One Auto Finance,
a Division of Capital One, N.A.
I HEREBY CERTIFY that the terms of this copy of the consent order submitted to the Court are identical to those set forth in the original consent order; and that signatures represented by the /s/ on this copy reference the signatures of consenting parties on the original consent order.
______________________
Evan M. Goldman
Counsel for Capital One Auto Finance,
a Division of Capital One, N.A.
cc: Mark A. Neal, Asst. U.S. Trustee
Evan M. Goldman, Esquire
Ellen Cosby, Chapter 13 Trustee
Debtor
All Creditors