In re Demers, 511 B.R. 233 (Bankr. D. R.I. 2014) | In sum, (1) the notice was defective in that it did not mention the right to court action, (2) proper notice was a **condition precedent** to the right to accelerate and foreclose . . .

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In re Demers, 511 B.R. 233 (Bankr. D. R.I. 2014) | In sum, (1) the notice was defective in that it did not mention the right to court action, (2) proper notice was a **condition precedent** to the right to accelerate and foreclose . . .

In re Demers, 511 B.R. 233 (Bankr. D. R.I. 2014) | In sum, (1) the notice was defective in that it did not mention the right to court action, (2) proper notice was a **condition precedent** to the right to accelerate and foreclose . . .

UNITED STATES BANKRUPTCY COURT
DISTRICT OF RHODE ISLAND

In re: Donnalee M. Demers BK No: 13-11539
Debtor Chapter 13
______________________________________________________________________________
MEMORANDUM AND ORDER

Donnalee Demers (“Ms. Demers”) filed a Chapter 13 petition on June 7, 2013, and
shortly thereafter proposed a five year plan to address the claims of her creditors. The Court
confirmed a modified plan in August 2013 (the “Plan”).1 Under the Plan Ms. Demers will pay in
full a pre-petition mortgage arrearage owed to America’s Servicing Company (“ASC”).2 ASC
filed a proof of claim listing an arrearage owed on its mortgage of $14,181.61. Ms. Demers
objected to the amount of ASC’s claim, contending that ASC included in the arrearage
calculation $1,979.40 it is not entitled to be paid, consisting of counsel fees of $1,170.00,
advertising costs of $534.40, and title costs of $275.00 (together the “Disputed Charges”), all of
which relate to a foreclosure proceeding ASC commenced prior to the filing of Ms. Demers’
Chapter 13 petition. See Limited Objection to Allowance of Claim #4 (Doc. #28). Ms. Demers
asserts that ASC is not entitled to payment of the Disputed Charges because it “failed to provide
a proper notice of default prior to acceleration and the commencement of foreclosure” as
required by the loan agreement. ASC counters that it complied with all contractual provisions of
the loan agreement, and even if it did not strictly comply it is contractually entitled to recover the
Disputed Charges from Ms. Demers. After consideration of the parties’ arguments, I conclude
that ASC failed to satisfy a condition precedent to its rights to accelerate the debt and pursue its
foreclosure remedy. Accordingly, it is not entitled to recover the Disputed Charges as part of its
claim.

[…]

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2 Responses to “In re Demers, 511 B.R. 233 (Bankr. D. R.I. 2014) | In sum, (1) the notice was defective in that it did not mention the right to court action, (2) proper notice was a **condition precedent** to the right to accelerate and foreclose . . .”

  1. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    There it is again, conditions precedent.

    See your local rules for the equivalent of Federal Rule of Civil Procedure 9(c).

  2. GuyFawkes says:

    Can’t fix conditions precedent. LOL

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