Jones v. Wells Fargo Home Mortgage

366 B.R. 584 (2007)

Facts

P filed a voluntary petition under Chapter 13 on August 26, 2003. P was obligated to D on a debt secured by his residence. Prior to Chapter 13, D had filed a foreclosure action in State Court. After Chapter 13 was filed, D stayed the prosecution of the foreclosure action but did not dismiss its suit. D filed a proof of claim setting forth the amounts owed as of the petition date. The proof of claim contained a schedule reflecting the following amounts due: 


1. 8 payments for   18,796.19 

2. Late charges   823.04 

3. Foreclosure fees   750.00

4. Court costs     1283.87

5. Inspection fees   60.00

6. Escrow shortage   111.59

7. Broker's price opinion 435.00


Total    $22,259.69


Attached was a copy of an adjustable-rate note dated April 4, 2001, evidencing D's debt. P's reorganization provided for payments to the Chapter 13 Trustee of $ 2,105.35 per month for thirty-six months followed by a final payment of $ 625.97. D was to be repaid on the prepetition arrearage in the proof of claim. P also agreed to make the monthly installment payments arising post-petition under the Note directly to Wells Fargo. P's plan was confirmed. P suffered a heart attack and failed to make three payments to the Trustee and missed four mortgage payments to D P's plan was extended three months, and his obligation to immediately make the three missed payments was excused. P agreed to pay $9,348.22, including $ 650.00 in attorney's fees and costs incurred by D, to cure the post-petition default on his mortgage. These amounts were to be paid directly to D. Thereafter, P made payments to both the Trustee and D. The Trustee forwarded payments to D. In August of 2005, P filed a motion to refinance the debt. P had a commitment from Option One in the amount of $275,000.00. D did not oppose the motion. On December 7, 2005, this Court approved the request for authority to refinance. P requested a payoff. D faxed a payoff statement of $ 231,463.97. The payoff was itemized:


1. Principal due $ 210,920.72

2. Interest due from July 1, 2005 - January 10, 2006,  13,801.58

3. Sheriff's Commissions   6,741.67

$231,463.97

P questioned the amounts and was unable to obtain an accounting or any other substantiation for the payoff. P was forced to remit the sums demanded or lose his loan commitment. The refinancing left insufficient funds, after the satisfaction of refinancing costs and D's payoff, to satisfy any of P's remaining obligations under the plan. After the closing, P requested an accounting and D acknowledged that it had collected sums in excess of the amounts necessary to satisfy the loan. D gave no explanation but said a check would be issued in 15 days. P instituted this adversary proceeding and thereafter, D forwarded $ 7,598.64 in reimbursement for excess funds collected. D offered into evidence an accounting from the date of the loan's inception to payoff. P disputes the accrual and payment of post-petition inspection fees, attorney's fees, and statutory expenses as well as prepetition Sheriff's commissions. P objects to the calculation of interest and that none of the disputed charges were previously disclosed to P, the Court, or the Trustee. As for the Sheriff's commissions, P avers that D represented in its proof of claim that the costs and commissions of the foreclosure were only $ 1,283.87. D claims that any charges assessed post-petition were authorized under the terms of the Note and other security documents evidencing the loan. It further maintains that because P voluntarily paid the sums owed under the Note, he may not recover any amounts improperly charged.