United States District Court, E.D. Michigan, Southern Division
Timothy M. Jodway and Alaina M. Zanke-Jodway, Appellants,
Fifth Third Bank, Servicer for Fifth Third Bank Mortgage Company, Appellee.
K. Majzoub United States Magistrate Judge
OPINION AND ORDER AFFIRMING BANKRUPTCY COURT'S
DECISION TO DENY APPELLANTS' MOTION TO REVOKE THE ORDER
CONFIRMING CHAPTER 13 PLAN
Gershwin A. Drain United States District Court Judge
matter is before the Court as an appeal from the Bankruptcy
Court for the Eastern District of Michigan. Appellants filed
a motion before the bankruptcy court, seeking to revoke the
order confirming the Chapter 13 Plan. The bankruptcy court
denied that motion and the Appellants appeal. For the reasons
that follow, the Court AFFIRMS the bankruptcy court decision.
Parties unnecessarily complicate the issues in this appeal.
As best as the Court can, it will simplify the facts and
arguments made by the Parties.
Jodways are well-known to this Court and have a lengthy
history before the bankruptcy court. See Jodway v. Fifth
Third Mortg. Co., 557 B.R. 560 (E.D. Mich. 2016). On
August 3, 2005, Tim Jodway and Alaina Zanke-Jodway
(collectively “the Jodways”) took out a mortgage
to finance the $649, 000 purchase price of a house.
Appellants' Br., Dkt. No. 6, p. 8 (Pg. ID 763). The home
is located in Boyne City, Michigan and is not the
Jodways' primary residence. On January 20, 2011, the
mortgage was assigned to Appellee, Fifth Third Mortgage
Company. Jodway, 557 B.R. 560, 562. Eventually, the
Jodways failed to meet their mortgage obligations and the
Appellee referred the matter to foreclosure. On June 26,
2014, Tim Jodway filed for Chapter 13 relief to stay the
foreclosure proceedings. Bankruptcy R., Dkt. No. 5, p. 291
(Pg. ID 303). On April 10, 2015, Tim Jodway signed a Chapter
13 Plan, which required payment of about $7000 per month for
60 months. Id., p. 37 (Pg. ID 51). On May 12, 2015
Bankruptcy Judge Mark Randon accepted the Plan and issued an
order confirming the Plan (hereinafter the “Order
Confirming Plan”). Id., p. 56 (Pg. ID 68).
to the Jodways, on February 26, 2016, they learned that Mr.
Jodway's payments (then-totaling $153, 562.66) were being
held in a suspense account, rather than being credited to the
debt. Id., pp. 410, 416 (Pg. ID 422, 428). The
suspense account is the centerpiece of this appeal.
25, 2016 the Jodways filed a motion to revoke the Order
Confirming Plan. Id., p. 452 (Pg. ID 464). Judge
Randon heard oral argument on the motion on August 10, 2016.
Id., p. 410 (Pg. ID 422). Ruling from the bench,
Judge Randon denied the Jodways' motion for revocation of
the Order Confirming Plan. Id., p. 421 (Pg. ID 433).
Judge Randon followed up his decision with a written order,
IT IS HEREBY ORDERED that this Court finds the order of
confirmation was not procured by fraud and Debtor and the
non-filing co-debtor's Motion is untimely under
Fed.R.Bankr.P. 9024 and 11 U.S.C. §1330(a).
Dkt. No. 5, p. 4 (Pg. ID 16).
September 8, 2016, the Jodways filed a notice of appeal from
Judge Randon's order denying the motion for revocation of
the Plan. Dkt. No. 1. Tim Jodway is represented by his
co-debtor, non-bankruptcy-filing spouse, Alaina Zanke-Jodway,
who is licensed to practice law in Michigan.
only issue on appeal is whether the bankruptcy court erred
when it denied the Jodways' motion to revoke the Order
Standard of Review
appeal of a bankruptcy decision, this court applies the
clearly erroneous standard of review to findings of fact, and
reviews questions of law de novo. Keeley v.
Grider, 590 F. App'x 557, 559 (6th Cir. 2014).
Therefore, the judgment of the bankruptcy court shall be
reversed only if the ruling is based on “an erroneous
view of the law or a clearly erroneous assessment of the
evidence.” U.S. v. Dotson, 715 F.3d 576, 582
(6th Cir. 2013) (quoting U.S. v. Semrau, 693 F.3d
510, 520 (6th Cir. 2012)).
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