In re Rogers (25-80005)
Opinion and Order Sustaining Objection to Postpetition Fees Under Rule 3002.1(e), Denying Motion for Sanctions Under Rule 3002.1(i), and Denying Claim Under N.C. Gen. Stat. § 45-94. The Court sustained Debtor's objection to post-petition mortgage fees under Rule 3002.1(e) and denied all other requested relief. Debtor filed Chapter 13 and did not personally sign the mortgage note; the non-filing spouse did, and she made mortgage payments directly. The servicer (SIRVA) filed a proof of claim listing the loan as current but claimed a $400.00 presumptive post-petition fee for filing the claim. Separately, SIRVA sent state-law notices to the non-filing spouse listing additional bankruptcy-related attorney fees totaling approximately $951.00, purportedly “assessed” to the loan under N.C. Gen. Stat. § 45-91. Debtor argued the differing fee disclosures violated Rule 3002.1 and reflected improper “dual-booking” as addressed in In re Peach and In re Owens. SIRVA asserted it listed only the $400.00 in its bankruptcy notice because the other fees would not be collected, and that N.C. Gen. Stat. § 45-91 requires it to “assess” all fees incurred, even if not intended to be charged. Thus, SIRVA claimed it was required to send the $951.00 notice to the non-filing spouse even though it did not intend to recover that fee. The Court held that N.C. Gen. Stat. § 45-91 makes the assessment of a fee a pre-condition of collecting that fee but does not mandate the assessment itself. SIRVA was not required to send the conflicting state-law notice since it stated it had no intention of recovering it and sending the conflicting notices violated Rule 3002.1. Therefore, the Court disallowed the $400.00 fee in the notice under Rule 3002.1 and prohibited SIRVA from seeking to recover any portion of the state-law notice fees against Debtor or his residence.