Secured Credit lies and sayes it did not receive plan- HELP

[AlbanyMan]

I amended my plan post confirmation. I served all creditors with the full plan and Motion to modify. I completed my affidavit of service and instead of also stating the plan was served with the motion, I said "all crediters were served with full copies of the motions with all exhibits" as I was considering the plan a motion to value and deem unsecured creditors paid in full.

The very next day I also decided to mail the secured creditor via certified mail of all the papers. I have the signed receipt but forgot to amend my affidavit of service.

At the confirmation hearing the Court asked directly "and no one objected to this?" I said no, the court than asked and "everybody was served?" yes. The Trustee recommended confirmation and did not raise issue with affidavit of service. The order confirming my plan states "after due notice and no objections the motion to confirm amended plan is Granted."

I started an adversary proceeding against the creditor back in 7/09. The creditor filed an Answer and there was no defense of not receiving the plan, that answer was deemed moot and after the attornies were substituted the new firm filed an answer in 9/09, again no defense of not receiving the plan. I amended my complaint with court approval. The amended complaint was deemed the operative complaint so all other answers were moot.

This time instead of an answer, there is a 12(6) motion to dismiss. Again no defense raised along these lines. The Defendant sited specific provisions of the plan and sited reasons my confirmed plan does not affect its lien, none of these reasons were for lack of service. The Defendant goes on to discuss the Instant Modification. The Defendant stated "Pursuant to the modification, it was to receive payments outside the plan directly from Plaintiff. Thus no objection was made by Wells Fargo and Plaintiffs motion to modify the Chapter 13 Plan was granted".

Apparently the complaint did not state I was seeking releif under 1327. After several discussion in court about the 1327 issue (no verbal objections or defense of not receiving the plan was raised at any hearing) the court directed me to point out how the plan layes a claim under 1327. Once the court found the complaint did state an "Espinosa" 1327 claim, he asked the defendant to provide a memorandum on why the should not be held to the plan and retro activity of Espinosa. On receipt of the Defendants "Suplimental Memorandum of Law" for the very first time the issue of not getting the plan is alleged.

I know the defense should have raised this along time ago but did not. Since I am Pro Se I do not file on PACER. Apparently when I file with the Court, at the request of the creditor, there is an electronic notice of docket activity. Since code and recent case law sayes only actual notice of the plan is required - does the PACER cover Actual Notice? Any case law?

Does anyone know the standard of overcoming this defense. I think its important the court realize service was proper. I am going to ask that the answers I provided to the court at confirmation would be considered an amendment of the Affidavit of Service.

What burns my but is only now, after all the arguments they made, describing with specifics plan provissions and why they do not apply, such as code protects mortgages, etc and failing to file an adversary hearing to value their lien.

There have been no explanations for failing to appeal the confirmation and now the time under all circumstances have lapsed to do so.

HELP any Suggestions? Can anyone point me to case law where the court denied this defense where the record showed they had the plan, admitted why they did not object to the confirmation and argue direct provissions of a plan they had no notice of? Please any help would be so appreacitive.

[tigergem]

If you subscribe to PACER you can see where all of the notices were sent by the court in addition to your own. Just verify that the address they were sending notices to was correct. Notice, can be “actual” or “constructive.” Constructive notice means that a bankruptcy case filing notice (ANY NOTICE AT ALL) was sent by the clerk to an actual address occupied by a creditor. You do not have to prove that someone opened the letter.

[AlbanyMan]

Great! so if they got a motion under 3015(g) and allegedly they did not get the plan with that motion, even if it were true, but it is not, as long as the ECF/Pacer had the correct addresses, then they would 100 percent had received electronic "actual notice" (since the plan was filed seperately) and constructive notice that a plan exisits upon receipt of the Motion without the alleged plan attached. Am I right?

[tigergem]

Right, and I think you will need to submit a sworn affidavit to that effect, and any exhibits (evidence) you have that prove your statements, in your answer to their allegations. That is what I would do.

[AlbanyMan]

Thank you for your reply. Keeping my fingers crossed.

[justbroke]

I don't believe that saying, not under oath, in a hearing that you served the plan on the creditor, constitutes "filing" an affidavit of service nor evidence of actual service. (Operative word is "filing".) But that's a matter of law and any precedence. I say this because service of the plan is different from service of the Notice of Bankruptcy.

What you can do, is check PACER and see if your Case Manager served the Plan on the creditors! My Case Manager did this for me, saving me $60+ in postage across 3 amendments! This is what my docket looks like for a Chapter 13 Plan served via the BNC...

Chapter 13 Plan with Service Upon All Creditors via BNC Filed by Debtor XXXXXXX XXXXXXX XXXXXXX (related document(s)[5]). (YYYYY, YYYYY) (X = my name, Y = name of case manager)

I can prove service because the BNC performed the service of the document. If you have similar entries in your docket, then you have proof that it was served upon the creditor. Otherwise, you may ask the court permission to file a late-filed certificate of service. However, expect legal maneuvering from the creditor's attorney.

What are you trying to do anyhow? A creditor's lien always passes through the bankruptcy unless otherwise satisfied or voided.

[AlbanyMan]

if you email me privately I will explain in more detail.