Debtor filed 10 Chapter 13 cases over several years; in 6 of the 10 cases, she said she would surrender her homestead. In 4 of the cases, she proposed to surrender her homestead as long as she and the secured creditor reached an agreement.
On December 20, 2016, Debtor and Creditor entered an Agreed Order Granting Motion to Compel (the “Agreed Order”), in which the Court ordered Debtor to surrender her homestead property to Creditor and cease her opposition in state court. Debtor failed to surrender the homestead property and comply with the terms of the Agreed Order. Creditor then filed a Motion seeking to enforce the Agreed Order . Debtor then sought to vacate the Agreed Order on the grounds that Debtor “never agreed to the entry of the ‘Agreed Order,’ [sic] and she never agreed to surrender her homestead residence.” The Court held an evidentiary hearing to determine whether Debtor agreed to surrender her homestead property and gave her former attorney, Lydia Quesada, authority to enter into the agreement.
Debtor testified that the last time she tendered a mortgage payment on her homestead property was in March of 2009, and she failed to make any payments since that time. Debtor testified that she never agreed to surrender her homestead property; however, when confronted at hearing and in her deposition with Debtor’s Acknowledgement of Intent to Surrender Property (the “Acknowledgment”), Debtor testified that it was her signature on the document. Debtor claimed that she signed the Acknowledgment without her glasses on, and she had a habit of signing legal documents without using her glasses
Debtor admitted that, once she received notice to surrender her homestead property, she did not call her attorneys because she was more concerned about the holiday season. Rather than call Ms. Quesada, her bankruptcy attorney at the time, she hired a foreclosure attorney, Mr. Kenneth Trent, to represent her in state court. As of the date of the hearing, Debtor admitted that she was still fighting the foreclosure case in state court.
Attorney Quesada testified that Debtor never complained or contacted the office regarding the surrender of the homestead property.
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