Disallowance of the Post-petition Attorney Fees under FRBP 3002.1 did Not Modify Servicer’s Rights in violation of § 1322(b)(2)

Disallowance of the Post-petition Attorney Fees under FRBP 3002.1 did Not Modify Servicer’s Rights in violation of § 1322(b)(2)

Before the Court is the Debtor’s “Objection to the Post-Petition Mortgage Fees, Expenses, and Charges” asserted by PHH Mortgage Corporation (“PHH Mortgage”). The Court construes the Objection as a motion for determination of fees, expenses, or charges under Federal Rule of Bankruptcy Procedure 3002.1(e)

The Debtor filed this Chapter 13 case on August 23, 2016. PHH Mortgage timely filed a proof of claim on December 7, 2016, asserting a secured claim in the amount of $56,636.88 based on a first mortgage on the Debtor’s principal residence. In his Schedule D, the Debtor valued the claim at $58,000.00 and valued the residence at $55,000.00. On April 17, 2017, PHH Mortgage filed its Notice of Post-Petition Mortgage Fees, Expenses, and Charges (“Notice of Fees”). On May 15, 2017, the Debtor filed his Objection to the Post-Petition Mortgage Fees, Expenses, and Charges (“Motion for Determination”) asserted by PHH Mortgage, which is actually a motion for determination of fees, expenses, or charges under Rule 3002.1(e).

The Notice of Fees filed by PHH Mortgage disclosed that $250.00 for “Attorney Fees -Prep/analysis of 410A” and $350.00 for “Bankruptcy/Proof of claim fees” had been incurred on the Debtor’s mortgage account on “December 7, 2017. The Debtor’s Motion for Determination raises the following objections: (1) “[PHH Mortgage] has provided no documentation evidencing the fact that the charge is authorized under the Security Deed and Note or allowed under state law”; (2) “PHH Mortgage . . . did not attach any documents proving that the payment of this fee or charge is required by the underlying agreement and applicable non bankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the [C]ode”; and (3) “[u]pon information and belief, PHH Mortgage . . . did not issue a notice pursuant to state statute more than ten days prior to the date of filing.”

In its response to the motion, PHH Mortgage argues four points: (1) that the parties’ underlying agreement, specifically paragraph 14 of the Security Deed, permits PHH Mortgage to collect its post-petition charges from the Debtor; (2) that its attorneys’ fees are reasonable and that the Debtor’s “objection fails to show otherwise”; (3) that the fees are recoverable pursuant to 11 U.S.C. § 506(b); and (4) that “disallowing or reducing the fees would be tantamount to modifying [PHH Mortgage’s] claim which is secured by the Debtor’s principal residence.” The Court held a hearing on the motion on July 20, 2017. The Debtor appeared through counsel. PHH Mortgage did not appear at the hearing. At the conclusion of the hearing, the Court took the matter under advisement.

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