IN RE ROSEN

DIANE SIGMUND, Bankruptcy Judge

Before the Court is Debtor's Motion for Reconsideration (the "Motion") of the Order Denying Relief from the Automatic Stay Conditioned Upon the Payment of Post-Petition Arrears in the Amount of $18,167.95; and for an Order Directing Proper Accounting for Chapter 13 Plan Payments (the "Order"). An evidentiary hearing was held, briefing by the parties has been received, and the matter is ripe for adjudication. BACKGROUND

I shall take judicial notice of the docket entries in this case. Fed.R.Evid. 201, incorporated in these proceedings by Fed.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n. 3 (3d Cir. 1991); Levine v. Egidi, 1993 WL 69146, at *2 (N.D. Ill. 1993); In re Paolino, 1991 WL 284107, at *12 n. 19 (Bankr. E.D. Pa. 1991); see generally In re Indian Palms Associates, Ltd., 61 F.3d 197 (3d Cir. 1995).

Since the title of the Motion is somewhat of a misnomer, I will begin by outlining the parties' labored path to the entry of the Order and the relief which I am considering herein. Debtor filed this Chapter 13 case on February 10, 2000. On May 25, 2001 Debtor's Chapter 13 plan was confirmed. It contemplates payment of the arrears on the mortgage on his residence (the "Property") held by Standard Federal Bank, FSB ("Bank").

There is no basis under Fed.R.Civ.P. 59(e) (incorporated in bankruptcy by Fed.R.Bank.P. 9023) to reconsider the agreed order. However, Debtor is free to seek reinstatement of the stay, and this contested matter has proceeded in that context.

While this was his fourth case, the repeated filings are attributed to his counsel in each of these cases who was not authorized to make these filings and has since been suspended from the practice of law. Only upon retention of his current counsel did Debtor start to deal with his financial problems in a bankruptcy case. His first acts were to secure orders vacating dismissal and stay annulment orders that had been unopposed due to the negligence of counsel.

Although the movant is nominally Bank, it sold the mortgage to ABN AMBRO Mortgage Group, Inc. ("ABN AMBRO") on April 30, 1998. The parties have treated these entities as interchangeable for the purpose of this contested matter, and I will do likewise.

On July 1, 2004 Bank filed a motion for relief from the automatic stay (the "Stay Motion") averring that Debtor had not made post-petition payments for the months of March 2003 though June 2004. The monthly payments for March 2003 through November 2003 were alleged to be $924.40 and the monthly payments from December 2003 through June 2004 to be $831.43 with late charges of $32.55 per month. A number of consensual continuances were granted to facilitate agreement on the amount of the post-petition arrears for which Debtor had secured funding from his grandfather to pay. The Stay Motion came before the Court on October 14, 2004 at which time the Court entered the Order which provided that stay relief was denied conditioned upon Debtor's payment of $18,167.95 to Bank. The ordered amount was provided by Bank's counsel without any explanation and accepted by Debtor's counsel in Debtor's absence.

This was the second such motion. The first filed on March 8, 2002 was denied.

I do not have any idea where this number came from since the acknowledged contract amount, including escrow, was $813.85. Whether it represents a transposition of the correct amount (i.e., a typo) or some other number fed to counsel by Bank, it is another misstatement in the Motion for Relief. Unfortunately, it gets worse.

It appears to be the amount sought in the Motion updated to include the payments which came due through October 2004.

Disagreeing with Bank's accounting, Debtor tendered a check in the amount of $16,889.42 on October 26, 2004, Exhibit D-1, which was not accepted by Bank. Response of Bank to Motion at 2 (unnumbered). Under the self executing Order, stay relief was obtained upon Debtor's failure to pay the ordered amount. This Motion was filed on October 28, 2004. It identified the difference between Bank's demand of $18,167.95 and Debtor's tender of $16,889.42 to be attributed to the nine monthly payments in the amount of $924.40 which Debtor believes should have been charged at $813.85. Upon review of the Motion and the evidence of Debtor's tender of all but approximately $1,300, I indicated that I would consider reinstating the stay upon payment of the proven amount of post-petition arrears. After several further continuances in furtherance of a consensual quantification of that sum, the imminence of Bank's scheduled sheriff sale of the Property on February 11, 2005 brought the parties back to Court. On January 18, 2005 I entered an interim order continuing the sale and requiring Bank to provide Debtor with an accounting of all postpetition plan payments. On February 16, 2005 Debtor tendered an additional $3,255.40 representing November through February's payments at the contract amount of $813.85 which, like the prior tender, was rejected. Ultimately, the parties were unsuccessful in agreeing on the amount of the post-petition claim, and the contested matter came before me for hearing on March 22, 2005.

Responding to Debtor's frustrations with the lack of financial information provided by Bank, the Interim Order also provided that if by the date of the next hearing, i.e., Feb. 15, 2005, the accounting was not supplied or not complete Bank shall provide a witness at the next hearing who would be competent to testify as to its claims.

After a two hour hearing at which Debtor and Lorri Beltz ("Ms. Beltz"), ABN AMBRO'S risk analysis processor, testified, I could understand Debtor's frustration in trying to reach an agreement with Bank as to his post-petition indebtedness and why he had no confidence that his Chapter 13 trustee payments were being properly applied so that his mortgage would be reinstated at the completion of his Chapter 13 case. Debtor's position was very simple. His mortgage payment was $813.85 consisting of principal, interest and escrow of $174.50. He said he had never been advised of a change in the escrow, and the payment and interest were fixed for the amount of the loan. When he tendered $16,889.42 to Bank in October 2004, he simply multiplied that payment amount plus late charges by what he believed to be the agreed amount of missed payments.

While Bank rejected the $16,889.42 tender as insufficient to cure post-petition arrears, it acknowledges now that the amount it demanded was incorrect. Subsequent to the Order being entered and therefore subsequent to Bank's taking the position that only $18,167.95 would cure post-petition arrears, Ms. Beltz was assigned the task of preparing a loan analysis based on Bank's payment transaction records for the period 1998 to the date of the hearing. Exhibit M-1. Her findings revealed that the number previously provided was wrong.

Ms. Beltz began her testimony by acknowledging that the motion for relief that stated Debtor was due from March 2003 was incorrect. Rather she now contended that Debtor was due from September 2002. She attributed this error to Bank's misapplication of five Trustee payments it received to the post-petition rather than pre-petition account. Thus, while Debtor believed he was paying off arrears through his plan, the Trustee payments were not credited properly by Bank. Bank states that it has corrected that misapplication now. However, as a result Bank claims that the discrepancy between its and Debtor's view of the post-petition arrears is even greater than it originally appeared. While Debtor acknowledges twenty missed payments, Bank's attorney was only willing to concede that at least twenty payments are owed. While one would have thought that the parties through an exchange of documents could have reached an agreement on this point, they have not done so notwithstanding the time and encouragement provided by the Court. Thus, I begin my analysis by reference to the loan analysis prepared by Ms. Beltz which as will be noted diverges from the testimony provided.

Debtor was not clear on what dates he based his conclusion that there were twenty missed payments or why he believed that he and Bank were in agreement on the number of missed payments. As of the hearing on March 22 and before Bank sought to correct its averment in the Motion for Relief, Bank alleged no payments had been made from March 2003. Thus, at the time of the hearing, there were 25 post-petition payments due and unpaid under the original scenario. I find it unnecessary to reconcile this disparity since both Bank and Debtor are incorrect.

Exhibit M-1 contains the payment history from the inception of the loan. While Ms. Beltz did not so state, it reflects payments made by Debtor and the Chapter 13 trustee. Bank contends that five of the payments were improperly posted as post-petition payments thereby giving Debtor credit for payments he did not make to Bank and understating the amount of the post-peititon arrears as a result. I have carefully reviewed Exhibit M-1 and conclude that Ms. Beltz is correct as to one, not five, payments. Each recorded check number on Exhibit M-1 beginning with the prefix "T" matches the Trustee's record of disbursements to Bank. See Exhibit D-5. There are additional payments posted to Exhibit M-1 and not designated as "T" payments as follows: (1) 1/15/03-$945.59; (2) 2/28/03-$945.00; (3) 6/23/03-$857.11; (4) 11/14/03-$857.00; and (5) 4/6/04-$857.00. The first dated 1/15/03 was reversed on 1/27/03 because of an NSF check so no January payment was made by Debtor. At the time Debtor was due from July 2002, and the January payment would have been so applied if made. While it was not, by error the Trustee's payment was apparently applied to that post-petition obligation. Thus, Ms. Beltz's explanation about the misapplication of payments is correct with respect to this one payment. However, the other four identified payments were made by the mortgagor, not the Trustee as evidenced by the Trustee's records and the annotated Exhibit M-1 and thus are properly credited to the post-petition account.

Attached to Bank's brief is an annotated version of Exhibit M-1 with information not provided in the original exhibit such as the identity of the payee (i.e., mortgagor or trustee) and the contractual due date. While it is not my practice to consider documents attached to briefs as evidence, I will nonetheless do so since it contradicts Bank's position that five payments were erroneously omitted because of misapplication of the Trustee payments.

For clarity I shall refer to these payments by the Trustee as the "T" payments.

As discussed below, however, I find based upon Ms. Beltz's testimony that the monthly payments for this time period were $813.85 plus a late fee of $32.55, i.e. $846.40. Thus, it appears that Debtor overpaid for these months as follows: 2/28/03-$98.60; 6/23/03-$10.71; 11/14/03-$10.60; 4/6/04-$10.60. Thus, I shall deduct $130.51 from my determination of the amount Debtor owes.

The Relief Motion contended Debtor was due from March 2003. At trial Ms. Beltz claimed he was due from September 2002 because of the misapplied Trustee payments. Finding that one, not five, payments were misapplied, I conclude that Debtor is due from February 2003 or for one more payment than originally pled. Accordingly, there were 26 post-petition payments due as of March 2005 when the hearing was held.

Bank's contention that Debtor is due from September 2002 does not even make sense if her explanation was correct. Contending that five payments had been erroneously credited, it changed its records from due March 2003 to due September 2002, adding six months. While a small point since I reject the basic premise that five payments were misapplied, it demonstrates the lack of reliability of Bank's records. If I have still not accurately figured it out because of Bank's inability to explain its accounting, provide all necessary information or correct errors in its records, it will not have been for lack of trying. I have spent countless hours trying to figure this out and have gained new respect for the efforts of debtor's counsel who try to do likewise.

Obviously April and May have also become due during the pendency of this litigation and my order shall include those payments as well.

The parties also disagree on the dollar amount of the unpaid payments, and again Bank's explanation for its number was not easy to grasp. According to Ms. Beltz, the monthly payment obligation consisting of principal, interest and escrow from March 2000 through November 2004 was $813.85. Commencing December 1, 2004, the payment increased to $914.51 as a result of an escrow analysis done on October 28, 2004. Exhibit M-2A. Notice of that increase along with the escrow analysis was provided to Debtor. Exhibit D-3. It reflects the documented escrow shortage spread over a thirty-six month period. The confusion resulted from a prior analysis provided to Debtor purporting to document the amount needed for full reinstatement of the mortgage. It reflects a reinstatement amount of $37,037.55 (the "Reinstatement Calculations"). Bank still stands by that number but it is clear that it is premised on different assumptions about the escrow. Thus, while Ms. Beltz now states that the monthly payments were $813.85 from March 2000 through November 2004, increasing to $914.51 for the next thirty-six months, the Reinstatement Calculations include payments of $813.85 from October 2001 through November 1, 2002, increasing to $924.40 from December 1, 2002 through November 1, 2003, and decreasing to the original mortgage amount thereafter. Exhibit D-2. Bank produced the prior escrow analysis dated October 25, 2002 which presents a different set of numbers. It showed a payment increase on December 1, 2002 to $945.59 based on an escrow shortage of $1,369.88 recaptured over twelve months. Exhibit M-2B. While Debtor did not recall being notified to increase his payment, I note that the payments he made in January and February 2003 were in this precise amount. However, when Debtor challenged the $18,167.95 post-petition claim, Bank went back to analyze the loan history. It concluded that since Debtor had not paid for twelve months, it should treat the payments for the prior period as having been charged at the contract amount and recalculate the escrow deficiency. The outcome was a new determination requiring monthly payments of $914.51 based on an escrow shortage of $2,075.55 spread out over 36 months (as opposed to the previously stated payments of $945.59 or $924.40).

Subject to changes in the amount of future taxes and insurance, the contract payment should kick back in at the end of that period, i.e., 12-1-07.

Having figured all this out, I can make certain findings. Debtor owes Bank $23,391.76 representing 22 payments of $813.85 from February 2003 through November 2004 (i.e., $17,904.70) and 6 payments of $914.51 from December 2004 through May 2005 (i.e., 5,487.06). Late charges are due in the amount of $32.55 for 36 months, i.e., October 1, 2001 through October 1, 2004 (i.e., 1,171.80). Debtor shall be credited $130.51 for overpayments. Supra n. 12. Thus, upon tender of a check in the amount of $24,433.05, Debtor shall be current on all post-petition principal, interest, and escrow.

This charge is calculated on the basis of the $813.85 payment which was the only charge of which Ms. Beltz had knowledge. Moreover, I have excluded any late charges for the period after Debtor tendered payment which was refused when on Bank's own calculations, he was less than two payments off their number.

With respect to unpaid pre-petition obligations, the completion of his payments to the Chapter 13 trustee shall effect a cure, and Bank shall not be entitled to reach back to make any further claims or charges for the pre-petition period. In that connection I note Ms. Beltz' testimony that Bank has incorrectly charged Debtor's account for pre-petition fees that exceeded the amount in its proof of claim. According to Exhibit M-1, $7,268.50 was accrued as of the petition date. Bank's proof of claim which has been allowed in this case does not list fees in this amount. Exhibit D-6. Bank conceded its error but will not make the reduction until Debtor receives his discharge. Suffice it to say that upon Debtor's completion of the plan, no effort to collect these amounts will be permitted.

Beltz agreed that Bank's proof of claim capped the amount of fees it could recover and that the amount carried on its books exceeded the proof of claim amount. She agreed with Debtor's counsel that $6,200 of the 7,268.50 would drop out. I don't know where that number comes from since it appears to me upon examining the proof of claim that the fees scheduled aggregate $3,275.66 so that the fees are overstated by about $4,000.

Debtor understandably is concerned that upon his discharge Bank will refuse to reinstate the loan without some arrangement made for the payment of attorneys' fees and other charges of which he is unaware. Ms. Beltz testified that according to Bank's records, reinstatement would require payment of $37,037.55 notwithstanding that the number is premised on assumptions that are admittedly incorrect, including errors in the application of payments, overcharging of fees and a recalculation of the escrow. Debtor is rightfully concerned that at the end of the bankruptcy day which is shortly upon him, he will complete his plan and have a new dispute with Bank about reinstatement. Accordingly, he has joined a demand for an accounting with this motion to reinstate the stay. Given the record made that evidences at worst errors and at best confusion, I believe such relief is warranted to facilitate Debtor's fresh start, and I will so order.

An Order consistent with this Memorandum Opinion shall issue.

ORDER

AND NOW, this 6th day of May 2005, upon consideration of Debtor's Motion for Reconsideration (the "Motion") of the Order Denying Relief from the Automatic Stay Conditioned Upon the Payment of Post-Petition Arrears in the Amount of $18,167.95; and for an Order Directing Proper Accounting for Chapter 13 Plan Payments (the "Order"), after notice and an evidentiary hearing, and for the reasons stated in the accompanying Memorandum Opinion;

It is hereby ORDERED that:

1. The Motion is GRANTED. The automatic stay is reinstated upon Debtor's tender of immediately available funds in the amount of $24,433.05.^fn1 Current payments of $914.51 shall commence as of June 2005.

2. On or before June 2, 2005 Standard Federal Bank, FSB ("Bank") shall provide a revised Reinstatement Calculation consistent with the findings herein which assumes full payment under the Chapter 13 plan and current monthly payments of $914.51 to plan completion. That accounting shall be without prejudice to further escrow adjustments based on changes in the tax and insurance charges but notice of such escrow adjustment shall be provided to Debtor, if made, annually or shall be waived. The accounting shall be consistent with Bank's allowed proof of claim and will assume completion of the Chapter 13 plan and discharge.