Giannasca Supp MM As Filed 03-18-2020 2

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COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS
No. 2018-P-0349
ANTHONY GIANNASCA
PLAINTIFFS/APPELLANTS
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY & others
DEFENDANTS/APPELLEES.
ON APPEAL FROM A JUDGMENT OF

THE SUPERIOR COURT
SUPPLEMENTAL MEMORANDUM
______________________________________________________
Glenn F. Russell, Jr.

BBO# 656914
Glenn F. Russell, Jr.
& Associates, P.C.
38 Rock Street, Suite 12
Fall River, Massachusetts 02720
Dated: March 17, 2020 (508) 324.4545 (telephone)
(508) 938-0244 (fax)
russ45esq@gmail.com
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TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED...................5
II. STATEMENT OF FACTS..................................5
III. ARGUMENT............................................9
A. THE SUPERIOR COURT JUDGE ERRED IN DETERMINING

THAT SURRENDER WOULD BE PRECLUSIVE TO PLAINTIFF’S
DEFENSE OF THE DEFENDANT’S ATTEMPTED USE OF THE
IN REM NON-JUDICIAL MASSACHUSETTS STATUTORY
FORECLOSURE REMEDY................................9
B. IN THE ALTERNATIVE, PLAINTIFF MADE TWO POST-

DISCHARGE PAYMENTS THAT WERE ACEPTED BY
DEFENDANT UNDER A POST DISCHARGE LOAN
MODIFICATION.....................................17
VII. CONCLUSION............................................21
RULE 16(k)..............................................23
STATEMENT CERTIFICATE OF SERVICE........................24
ADDENDUM................................................25
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TABLE OF AUTHORITIES
Bevilacqua v. Rodriguez
460 Mass. 762 (2011)...........................15,16
Everbank v. Chacon
92 Mass.App.Ct. 1101 (2017)..................passim
Jose v. Wells Fargo Bank

89 Mass.App.Ct. 772 (2016).......................11
Sullivan v. Kondaur Capital,

85 Mass. App. Ct. 202 (2014)......................9
U.S. Bank Nat’l Ass’n v. Ibanez

458 Mass 637, 649 (2011)......................14,15
Wells Fargo Bank v. Cook,

87 Mass.App.Ct. 382 (2015).......................11
FEDERAL DECISIONS
In re Claflin,
249 B.R. 840 (1st Cir. BAP Mass. 2000)..........13,19
In re Esposito,
154 B.R. 1011 (Bankr. N.D. Ga. 1993)..............17
In re Lair,
235 B.R. 1 (Bankr. M.D. La. 1999).................13
In re Ryan,
560 B.R. 339 (Bankr. D. Haw. 2016)............passim
MASSACHUSETTS STATE STATUTES
Massachusetts General Law

Chapter 244,§14..............................10,12,16
UNITED STATES CODE
11 U.S.C, §521......................................passim
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I. STATEMENT OF ISSUES
1. Whether the Plaintiff’s Selection of His Intention

To “Surrender” Would Be Preclusive To Allow
Plaintiff To Defend The Non-Judicial Massachusetts
State In Rem Statutory Foreclosure of His Real
Property Under His State Legislatively Enacted
Rights and Protections.
2. In The Alternative, Whether The Defendant’s

Acceptance of Two Post Discharge Payments Altered
The Discharge on Plaintiff’s Note.
II. STATEMENT OF FACTS
Plaintiff/Appellant, Anthony Giannasca, (“Plaintiff”)
herein through undersigned counsel, respectfully responds to
this Court’s Order of February 25, 2020 below:
ORDER: In light of the Supreme Judicial Court's order of

February 21, 2020, remanding the case to this court, the
parties are ordered to submit supplemental briefs, not
to exceed twenty pages, addressing 'the issue of the
plaintiff's standing, in light of the Superior Court's
findings and conclusions regarding the effect of the
plaintiff's bankruptcy.' The parties should make
reference to, as relevant, the discharge of debt, the
notice of intent to surrender, reaffirmation, if any,
the post-discharge loan modification agreement, the
April 14, 2016 letter from the loan servicer to the
appellant, and any post-discharge payments on the loan
by the plaintiff and their acceptance by the loan
servicer. Appellant's supplemental brief is due on or
before on or before March 17, 2020 and subsequently,
Appellee's supplemental brief is due on or before March
31, 2020. (Rubin, Kinder, Singh, JJ.). *Notice
The genesis of the above Order was direction from the
February 21, 2020 Order of the Massachusetts Supreme Judicial
Court (“SJC”) on Plaintiff’s Application for Further Appellate
Review, SJC which stated as follows:

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“Please take note that on February 21, 2020, the

following entry was made on the docket. The application
for further appellate review is denied without
prejudice. It is further ordered that the case is
remanded to the Appeals Court for consideration of the
issue of the plaintiff's standing, in light of the
Superior Court's findings and conclusions regarding the
effect of the plaintiff's bankruptcy. The Appeals Court
may, in its discretion, invite further briefing with
respect to this issue, or with respect to any other issue
presented, including the prudential issues raised by the
dissenting justice. Nothing in this order precludes
either side from seeking further appellate review after
further decision of the Appeals Court.”
The February 21, 2020 SJC Order stated that it was
within this Court’s discretion to also entertain further
briefing upon the Dissenting Judge’s position on prudential
issues raised therein. However, under the February 25, 2020
Order from this Court, the issues identified for briefing were
solely restricted to the issues connected with the Plaintiff’s
bankruptcy action and claimed discharge under findings made by
the Superior Court Judge. 1 As a result of the narrow scope of
this Court’s briefing order, Plaintiff wishes to state for the
record that, respectfully, he continues to challenge the
majority’s findings related to the “prudential issues”
identified by Rubin J. in his Dissent, and the SJC. The
1 In its August 21, 2019 Opinion, this Court declined to

entertain the “surrender issue”; “In light of our conclusion
that the assignment from MERS to Deutsche Bank was valid and
binding, we need not reach the question whether Giannasca was
estopped from challenging the foreclosure by virtue of his
notice of intent to surrender the property in the bankruptcy
proceeding.” August 21, 2019 Opinion, at. n. 5
6
Plaintiff also wishes to reiterate that the Dissenting Judge
clearly identified significant unresolved issues under
Massachusetts state law that are in dire need of guidance for
the inferior courts as well as the residents of this
Commonwealth.
All of Plaintiff’s pleadings to date in this matter (Trial
and Appellate) have been solely authored and advanced pro-se
by Plaintiff [save the FAR Brief fled on Plaintiff’s behalf by
undersigned]. As a result, the bankruptcy issue was never fully
briefed at the trial Court level below. In addition, the
pleadings before this Court, both the pro-se Plaintiff and
counsel for the Defendant/Appellee, Deutsche Bank National
Trust Company et. al (“Defendant”) also never briefed the
bankruptcy issue before this Court. 2 The Plaintiff subsequently
approached undersigned to solely present oral argument in this
matter. After reviewing the Order of the Superior Court Judge,
undersigned prepared an outline for oral argument that
addressed all of the issues that the Superior Court Judge
relied upon in ruling in Defendant’s favor of Summary Judgment,
2 One could question why Defendant did not brief the surrender
issue, considering that the lion’s share of the trial court
ruling centered on the Judge’s subjective viewpoint regarding
“surrender”. Further, in the pleadings below, the Defendant
had clearly conceded that Plaintiff had undertaken a post
discharge “modification”, in which he made two payments on
before “defaulting”, see Record Appendix before this Court at
[RAI-0144]; supra below.
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which included the bankruptcy findings. 3 Based upon the
specific wording of this Court’s February 25, 2020 Order,
undersigned worked with Plaintiff to find and identify
responsive documents to this Court’s Order, which are attached
at the Addendum hereto. These documents establish that, in
fact, Plaintiff made two post discharge payments to the loan
servicer (Ocwen Loan Servicing, LLC), and that Plaintiff failed
to make two subsequent payments. As a result, correspondence
was caused to be sent to Plaintiff from the mortgage servicer,
that due to this non-payment [and not surrender] the Defendant
was to begin the Massachusetts extra-judicial statutory
foreclosure process.
IV. ARGUMENT:
A. THE SUPERIOR COURT JUDGE ERRED IN DETERMINING THAT

SURRENDER WOULD BE PRECLUSIVE TO PLAINTIFF’S DEFENSE OF
THE DEFENDANT’S ATTEMPTED USE OF THE IN REM NON-JUDICIAL
MASSACHUSETTS STATUTORY FORECLOSURE REMEDY
In its Opinion, the Superior Court Judge relied heavily
upon numerous federal Court Rulings to support its position on
“surrender”. 4 In fact, almost all of these federal rulings
3 Undersigned was limited by the Panel’s questions at oral

argument, to solely argue the bankruptcy issue.
4
In re Failla, 838 F.3d 1170, 1176 (11th Cir. 2016); In re
Golladay, 391 B.R. 417, 421 (Bankr. C.D. III. 2008). In re
Turner, 156 F.3d 713, 718 (7th Cir. 1998), In re Engles, 384
B.R. 593, 596 (Bankr. N.D. Okla. 2008), In re Duke, 79 F.3d
43, 44 (7th Cir. 1996), In re Cruz, 254 B.R. 801, 813-815
(Bankr. S.D.N.Y. 2000), In Re Holoka, 525 B.R. 495 (Bankr. N.D.
Fla. 2014)., In re Longo, 364 B.R. 161, 165-66 (Bankr. D. Conn.
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involved fact patterns involving the state law of other
jurisdictions.
The Bankruptcy Code does not define the term "surrender."
Section 521(a)(2) also does not say to whom the debtor must
surrender the property, or what "surrender" requires the debtor
to do. Confusingly, another subsection of section 521(a) also
uses the word "surrender." Section 521(a)(4) provides that, if
a trustee is serving in the case, the debtor must "surrender
to the trustee all property of the estate ...." Two Code
sections state that, if a debtor fails to state his intentions
or to carry out his intentions, the automatic stay is lifted.
However, both of those sections apply only if the collateral
is personal property. No other Code sections describe the
effect of the statement of intention.
In, In re Ryan, 560 B.R. 339 (Bankr. D. Haw. 2016), the
Court stated:
“As a matter of bankruptcy law, the Ryans' discharge was

entirely independent of the "surrender" of the Property.
Section 727 says that "the court shall grant the debtor
a discharge, unless" certain conditions exist. These
conditions are read strictly, narrowly, and in favor of
the debtor. None of the conditions that justify denial
of discharge has anything to do with the statement of
intention. Thus, debtors are entitled to a chapter 7
discharge regardless of (1) whether they file a statement
of intention, (2) what they say in their statement of
2007), In re Elowitz, 550 B.R. 603,606 (Bankr. S.D. Fla. 2016),

In re Plummer, 513 B.R. 135,143-144 (Bankr. M.D. Fla. 2014),
and In re Pratt, 462 F.3d 14, 18-19 (1st Cir. 2006)
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intention, and (3) whether they carry out their stated

intent.” (ADD-042)
Further, the Ryan Court stated:
First, the Code spells out the consequences of a stated

intention to surrender in certain circumstances, the
automatic stay is terminated. If Congress intended that
"surrender" would have the far-reaching consequences
described in Failla , Congress could and would have said
so. (ADD-041)
Further yet:
“Finally, there is no reason to read the ambiguous word

"surrender" under section 521(a)(2) to give secured
creditors a free pass to violate the foreclosure laws.
The Failla decision implies that a debtor's post-
discharge objection to a foreclosure is always abusive,
but this is simply incorrect. Debtors may have perfectly
legitimate reasons to defend a foreclosure case post-
discharge. For example, the property may be subject to
a junior lien securing a non-dischargeable debt, such as
taxes.” (ADD-042)
Indeed, Plaintiff had a perfectly legitimate reason to
defend the title to his real property based upon the claimed
(and untested) purported validity of the purported assignments
of mortgage that Defendant solely relies upon to utilize the
statutory remedy under G.L. c. 244, §14. 5 This is why Plaintiff
has standing to seek further examination as to his claims
regarding the validity of Defendant’s untested claim to the
defeasible fee title interest to Plaintiff’s real property.
5 See Sullivan v. Kondaur Capital, Inc. 85, Mass App. Ct.

202, 205-206, and at n. 8 (2014)
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The trial court Judge also failed to consider the 1:28
decision of this Court in Everbank v. Chacon, 92 Mass. App.
Ct. 1101 (2017) (ADD-027). The Chacon Panel significantly
relied upon the reasoning set forth in Ryan in its decision,
“We do find more persuasive the Ryan court's conclusion

that § 521 (a)(2)(A) is principally a notice statute,
and a debtor's statement of an intention to "surrender"
a property does not bind the debtor to physically turn
over the property to the creditor or to forfeit any
nonbankruptcy rights in the property. See Ryan, 560 B.R.
at 347-351. Accord In re Kasper,309 B.R. at 86, 90, 92-
93 (interpreting prior version of§ 521 [a][2][A]). We
are less persuaded by the Failla court's reasoning in
reaching the opposite conclusion, in part because it does
not adequately consider the effect of 11 U.S.C. § 554(c).
838 F.3d at 1175-1177. But which view will ultimately
prevail is a matter of bankruptcy law that we do not
presume to predict. The standards for waiver and judicial
estoppel make that unnecessary.” (ADD-031)
While Chacon did not “wade into the muddy waters” to make
definitive ruling on the term “surrender”, it did provide a
detailed road map for this Court to follow in order to do so.
Although Chacon is a non-precedential 1:28 Opinion, so too are
the federal court rulings relied upon by the trial court
specifically within the context of examining the tension
between federal law and a mortgagor’s state rights to defend
title to his real property under Massachusetts extra-judicial
statutory foreclosure scheme. 6
6 Indeed, in, In re Ryan, 560 B.R. 339 (Bankr. D. Haw. 2016),

that Court astutely noted “Finally, there is no reason to read
the ambiguous word "surrender" under section 521(a)(2) to give
secured creditors a free pass to violate the foreclosure laws.
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The Panel in Chacon was asked to examine the surrender
issue involving a fact pattern that also contained a post
discharge foreclosure of a mortgage that intersected a
borrower’s protections under Massachusetts state law. Chacon
involved a borrower claiming that the Mortgagee failed to
properly conduct the foreclosure under HUD regulations, which
under the terms of the mortgage required a face to face meeting
prior to foreclosing on the property, The Chacon Panel cited
to Wells Fargo v. Cook, 87 Mas App. Ct. 382, 385-386 (2015),
an Jose v. Wells Fargo Bank, N.., 89 Mass. App. Ct. 772, 774,
&n. 3 (2016) (same, citing Cook) (ADD-002). The Chacon Panel
found:
“We first note that nothing in Chacon's statement of

intention to surrender, or in any of the other bankruptcy
filings in the record, or in the statute governing such
statements, indicated that Chacon stated an intention to
surrender the property "to EverBank." Chacon's statement
said merely that the "[p]roperty will be [s]urrendered,"
without saying to whom, and 11 U.S.C. § 521 (a)(4) requires
that the debtor "surrender to the trustee all property of
the estate" (emphasis added). Moreover, the trustee
determined that the estate should "abandon" the property
without distributing or otherwise administering it, and
absent a contrary Bankruptcy Court order (there was none
here), such property abandoned "at the time of the closing
of a case is abandoned to the debtor" (emphasis added). 11
U.S.C. § 554(c). Nor was the discharge of Chacon's personal
liability in any way conditioned upon, or entered by the
Bankruptcy Court in reliance upon, his statement of
“The Failla decision implies that a debtor's post-discharge

objection to a foreclosure is always abusive, but this is
simply incorrect. Debtors may have perfectly legitimate
reasons to defend a foreclosure case post-discharge. For
example, the property may be subject to a junior lien securing
a non-dischargeable debt, such as taxes.” See Ryan, (ADD-042)
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intention to surrender the property. See In re Ryan, 560

B.R. 339, 351 (Bankr. D. Haw. 2016). "[D]ebtors are
entitled to a chapter 7 discharge regardless of (1) whether
they file a statement of intention, (2) what they say in
their statement of intention, and (3) whether they carry
out their stated intent." Ibid., citing 11 U.S.C. § 727.”
(ADD-030)
Further, like Chacon, Plaintiff raised legitimate
defenses to the Defendant’s attempted use of G.L. c. 244, §14
in defense of his title. The Plaintiff’s claims are independent
of merely examining the right to enforce the note itself. There
was never any “litigation” filed by Plaintiff in the Bankruptcy
to determine the validity of the Defendant’s “right to enforce
the mortgage by assignment”, as there was never a Motion to
Lift Stay or any adversary complaint filed by Plaintiff, see
Chacon;
“We reject EverBank's argument that the Bankruptcy Court's

allowance of EverBank's motion for relief under 11 U.S.C.
§ 362(e) (2012) from the automatic bankruptcy stay
precludes Chacon from challenging the validity of the
mortgage foreclosure in the summary process proceeding. The
Housing Court judge correctly concluded that no such
preclusion applied, because a Bankruptcy Court judge's
decision to lift the stay under § 362(e) results from a
limited, expedited hearing. See Grella v. Salem Five Cent
Sav. Bank, 42 F.3d 26, 31-35 (1st Cir. 1994). It is not an
adversary proceeding, does not involve a full adjudication
on the merits, and determines no substantive claims,
defenses, or counterclaims underlying the validity of a
lien. See ibid. A fortiori, it can have no issue or claim
preclusive effect with regard to the validity of the
process used to foreclose upon a lien (here, the
mortgage) after the stay is lifted.” (AD-029)
In fact, Chacon supports Plaintiff’s position at oral
argument before this Court, which issue the Defendant also

13
failed to address in its brief. Plaintiff also reiterates his
reliance upon supplemental 16(l) letter he filed with this
Court that also cited to Chacon, and In re Claflin, 249 B.R.
840, at n. 6 (1st Cir. BAP Mass 2000), [citing; In re Lair, 235
B.R. 1, 60-61 (Bankr.M.D.La. 1999)]:
“[6] Accordingly, a possible remedy could involve

compelling a debtor to surrender property. However, this
begs the question of to whom property should be
surrendered. Most courts and commentators assume,
without extended discussion, that it involves a debtor
physically turning property directly over to the
relevant secured creditor. See, e.g., In re Edwards, 901
F.2d 1383, 1385 (7th Cir.1990) ("[A] debtor may choose
to surrender the collateral to the creditor."); Michael
P. Alley, Redemption, Reaffirmation, Exemption, and
Retention in Chapter 7 Bankruptcy: Extinction Looms Near
for the Free Ride, 47 U. Kan. L.Rev. 683, 685 (1999) ("If
the debtor chooses to surrender the property . . . the
debtor and creditor simply arrange for the turnover of
the property."). However, § 521(4) requires a debtor to
"surrender to the trustee all property of the estate. .
. ." 11 U.S.C. § 521(4). Thus, because there is a general
duty to surrender estate property to the bankruptcy
trustee, property that will almost always include
property subject to § 521(2), the "surrender"
contemplated in § 521(2) appears to involve the surrender
of property to the Chapter 7 trustee administering the
estate, not the relevant creditor. See In re Lair, 235
B.R. 1, 60-61 (Bankr.M.D.La.1999). If § 521(2)
"surrender" is understood to mean surrendering estate
property directly to a secured creditor, such action may
arguably place a debtor in direct violation of § 521(4).”
Indeed, great questions of Comity are raised under the
trial court’s finding that a debtor’s “selection” of surrender
in an active case under a bankruptcy petition before an Article
I Court, would somehow preempt a debtor’s post-bankruptcy

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legislatively enacted state statutory right to defend his title
to real property.
Under the peculiar laws of this great Commonwealth, one
possessing the right to enforce a note does not automatically
bestow the right to enforce a mortgage purportedly acquired by
“assignment”. The historical state case law ratio decidendi
confirms that independent examination of the note and mortgage
are required:
“Like a sale of land itself, the assignment of a mortgage

is a conveyance of an interest in land that requires a
writing signed by the grantor. See G. L. c. 183, § 3;
Saint Patrick's Religious, Educ. & Charitable Ass'n v.
Hale, 227 Mass. 175, 177 (1917). In a "title theory
state" like Massachusetts, a mortgage is a transfer of
legal title in a property to secure a debt. See Faneuil
Investors Group, Ltd. Partnership v. Selectmen of
Dennis, 458 Mass. 1, 6 (2010)... Where, as here, mortgage
loans are pooled together in a trust and converted into
mortgage-backed securities, the underlying promissory
notes serve as financial instruments generating a
potential income stream for investors, but the mortgages
securing these notes are still legal title to someone's
home or farm and must be treated as such.” U.S. Bank v.
Ibanez, 458 Mass. 637, 649 (2011)
Moreover, the SJC stated that unlike the majority of
Jurisdictions in the United States, under the peculiar law and
decisional case findings of this Commonwealth thereon, the
mortgage does not automatically follow the Note.
“...the plaintiffs contend that, because they held the

mortgage note, they had a sufficient financial interest
in the mortgage to allow them to foreclose. In
Massachusetts, where a note has been assigned but there
is no written assignment of the mortgage underlying the
note, the assignment of the note does not carry with it
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the assignment of the mortgage. Barnes v. Boardman, 149

Mass. 106, 114 (1889).” Ibanez, at 652-653.
Indeed, also unlike the cited federal cases relied upon
by the trial court judge, Massachusetts is a title theory
jurisdiction that also does not require judicial action to
foreclose upon a borrower’s statutory right of redemption (G.L.
c. 244, §18). see U.S. Bank v. Ibanez, 458 Mass. 637, 652-653
(2011):
The Bankruptcy court never made any examination as to
the Defendant’s standing to enforce the Plaintiff’s mortgage.
There was never any litigation in Plaintiff’s bankruptcy
regarding the validity of Defendant’s claim to be a proper
party to enforce the Plaintiff’s mortgage by way of assignment.
The Defendant solely relies upon recorded documents upon
the registry to “support” its claim that it holds the right to
enforce the Plaintiff’s mortgage by way of purported
assignment, but see Bevilacqua v. Rodriguez, 460 Mass. 762,
771 (2011), where the SJC has also opined that recordation of
documents upon the registry of deeds is for notice purposes
only;
”...there is nothing magical in the act of recording an

instrument with the registry that invests an otherwise
meaningless document with legal effect. See S & H
Petroleum Corp. v. Register of Deeds for the County of
Bristol, 46 Mass. App. Ct. 535, 537 (1999) ("The function
of a registry of deeds is to record documents. It is
essentially a ministerial function . . ."). Recording
may be necessary to place the world on notice of certain
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transactions. See, e.g., G. L. c. 183, § 4 (leases and

deed); G. L. c. 203, §§ 2-3 (trust documents). Recording
is not sufficient in and of itself, however, to render
an invalid document legally significant. See Arnold v.
Reed, 162 Mass. 438, 440 (1894); Nickerson v. Loud, 115
Mass. 94, 97-98 (1874) ("mere assertions . . . whether
recorded or unrecorded, do not constitute a cloud upon
title, against which equity will grant relief"). As a
result, it is the effectiveness of a document that is
controlling rather than its mere existence. See
Bongaards v. Millen, 440 Mass. 10, 15 (2003) (where
grantor lacks title "a mutual intent to convey and
receive title to the property is beside the point"). The
effectiveness of the quitclaim deed to Bevilacqua thus
turns, in part, on the validity of his grantor's title.”
The result of the Superior Court’s findings would have
the effect of allowing an Article I Court to cut off the
Plaintiff’s statutory right to defend the title to his real
property [as Massachusetts is a title theory jurisdiction]. 7
Again, the bankruptcy court as an Article I Court, made no
7 Indeed, even if a creditor that sought to foreclose under

G.L. c. 244, §14 could show that it could enforce a debtor’s
note and mortgage, [under the peculiar law of this
Commonwealth] if that creditor failed to strictly follow all
statutory and regulatory requirements, the foreclosure would
be deemed to be void, see Ibanez at 646-647 “Recognizing the
substantial power that the statutory scheme affords to a
mortgage holder to foreclose without immediate judicial
oversight, we adhere to the familiar rule that "one who sells
under a power [of sale] must follow strictly its terms. If he
fails to do so there is no valid execution of the power, and
the sale is wholly void." Moore v. Dick, 187 Mass. 207, 211
(1905). See Roche v. Farnsworth, 106 Mass. 509, 513 (1871)
(power of sale contained in mortgage "must be executed in
strict compliance with its terms"). See also McGreevey v.
Charlestown Five Cents Sav. Bank, 294 Mass. 480, 484 (1936).
[Note 16]”
17
inquiry into whether Defendant followed all state statutory
requirements “strictly”. Thus, the finding made as to
“surrender” authored by the Superior Court Judge, respectfully
submitted, was an error in the application of law.
B. IN THE ALTERNATIVE, PLAINTIFF MADE TWO POST-DISCHARGE

PAYMENTS THAT WERE ACCEPTED BY DEFENDANT UNDER A POST
DISCHARGE LOAN MODIFICATION
As part of this Court’s Order, it requested
information as to the post discharge loan modification
agreement and any payments made that were “accepted”. 8 9
To begin, a review of the Federal Rules of Bankruptcy
Procedure (“FRBP”)is required. When a chapter 11, chapter 12,
or chapter 13 case has been converted or reconverted to a
chapter 7 case, FRBP, R. 1019(1)(B) states:
(B) If a statement of intention is required, it shall be

filed within 30 days after entry of the order of
conversion or before the first date set for the meeting
of creditors, whichever is earlier.
On February 27, 2013, Plaintiff filed such statement of
intention to retain on the same date that the conversion Order
was entered (ADD-062). Plaintiff complied with FRBP, R.
8
“The parties should make reference to, as relevant, the
discharge of debt, the notice of intent to surrender,
reaffirmation, if any, the post-discharge loan modification
agreement, the April 14, 2016 letter from the loan servicer to
the appellant, and any post-discharge payments on the loan by
the plaintiff and their acceptance by the loan servicer.”
9
Section 524(c) and (k) set forth a number of requirements that
must be followed before a reaffirmation is binding, see, In re
Esposito, 154 B.R. 1011 (Bankr N.D. Ga. 1993)
18
1019(1)(B). Subsequent to such filing of Plaintiff’s intention
to retain, there was no objection filed by any creditor,
trustee, or the Court. On December 03, 2013, the Plaintiff
received his discharge in his Chapter 7 Bankruptcy, with the
February 27, 2013 statement of intention filed and not objected
to.
During the trial Court proceedings at the Superior Court,
the Defendant’s counsel admitted that Plaintiff, in fact, had
entered into a post discharge “loan modification”, to which he
defaulted on, see Defendants combined response to the Plaintiff's
motion for an injunction and in the alternative Motion to Dismiss
the case. This pleading was included by Plaintiff in his Record
Appendix before this Court at [RAI-0144].
“The Defendant filed A bankruptcy petition with the

United States Bankruptcy court for the district of
Massachusetts. In that petition which was discharged the
defendant surrendered his interest in the property
(See attached exhibit B). following that the Plaintiff
entered into a loan modification agreement in which he
agreed to make monthly payments on his loan (SEE Exhibit
C), The Plaintiff made two trial payments covering the
period from 7/1/2014 and 8/1/2014 however no additional
payments were made and the Plaintiff has not claimed to
have made any payments, attempted to make any payments
or asserted he is able to make payments in that time or
in the pleadings he filed.” 10
10Despite being termed a “trial modification”, Ocwen accepted

these two payments on Plaintiff’s discharged debt, and never
returned the same to Plaintiff. The preceding payments were
utilized to make payments upon the back balance owed under the
discharged Note. Again, Ocwen is no stranger to post discharge
attempts to collect upon discharged debts; see Garfield v.
Ocwen Loan Servicing, LLC, 811 F.3d 86, 91-93 (2nd Cir. 2016).
19
The pro-se Plaintiff attempted to make the trial court
Motion Judge aware of this fact at the Summary Judgment
hearing. This transcript was also part of Plaintiff’s Record
Appendix at[RAIV-1323]:
“And afterwards I had reaffirmed -- Well, I got a

4 loan modification after the the bankruptcy was
discharged.
5 I entered into a loan a new agreement with the bank,
6 with Ocwen Loan Servicing, in 2014. My discharge occurred
in December of 2013.”
In fact, this was an accurate representation made by
Plaintiff, to which Defendant’s counsel clearly admitted.
In the Superior Court Order, the Judge’s Order
concentrated upon his subjective view that when Plaintiff
subsequently filed his February 27, 2013 Statement of
Intention, “it directly contradicted” his previous statement
of intention. Yet, in Plaintiff’s Chapter 11 reorganization
plan, the claim of Defendant was to clearly be treated as
follows:
“Class 2: Claims of One West Bank, FSB. Class 2 consists

of the claim of One West Bank, FSB (“OW”). The claim is
secured by a first mortgage 16-18 Joseph Street, Medford
Massachusetts. See Exhibit A. At the Petition Date, OW
is owed $615,346.91 (POC# 3). The property has a value
of $407,000. The claim of OW shall be modified as
follows: (a) Payment of the secured portion of Class 2
shall be in accordance with existing promissory note from
the Debtor to OW, modified to extend the maturity date
of the loan to 30 years from the Effective Date, fix the
principal loan amount to $407,000, to fix the interest
rate to 5.0% per annum fixed (not variable) and to fix
the monthly principal and interest payment under the note
to $2,184.86. This monthly payment shall be paid directly
20
to OW. Further, on an ongoing basis, the real estate

taxes and insurance shall be escrowed by OW. The Class
2 Claim holder shall retain its existing lien to secure
the secured portion of its Claim. Upon the Effective
Date, the mortgage of OW shall be deemed modified as set
forth herein and the Debtor may record the Confirmation
Order to reflect said modification. The modification
shall be in force and the mortgage shall be deemed in
good standing upon Confirmation as if there has been no
default. OW shall commence sending monthly statement to
the Debtor reflecting the modified payments upon the
Effective Date. The unsecured portion of the claim of
$208,346.91 shall be treated in accordance with the
unsecured creditors, including voting rights, as set
forth in Class 3 below.” (ADD-069)
In further support, Plaintiff relies upon receipts of two
payments made to Ocwen Loan Servicing Dated June 2014 and July
2014 see (ADD-055). Further, Plaintiff also relies upon
correspondence he received from Ocwen Loan Servicing, LLC
(“Ocwen”), dated October 14, 2014, attached hereto in the see
(ADD-057), stating as follows:
“We [Ocwen] have not received your mortgage payments for

the months of 09/01/14 through 10/01/14. This means your
account is now in default, and if you do not make these
payments or reach another resolution with us. we may soon
refer your loan to foreclosure, to commence the
foreclosure process as required by your state law.”
It is beyond credible dispute that the above letter was sent
to Plaintiff post the 12/2013 discharge. Thus, it is also
beyond credible dispute that Defendant’s position was that it
initiated the state statutory foreclosure process, not as a
result of any “surrender” in the Bankruptcy, but rather due to

21
Mr. Giannasca failure to make payments on the post discharge
“modification”. 11
V. CONCLUSION
The trial court Judge failed to consider the 1:28 Ruling
in Chacon, or the 1st Circuit ruling under In re Claflin.
Plaintiff respectfully states that the Plaintiff’s Bankruptcy
had no preclusive effect, and also did not constitute any
waiver of his right to defend his title under the Massachusetts
statutory foreclosure process.
In addition, Plaintiff made two (2) post discharge
payments that were accepted by Ocwen. Further, at the second
hearing on Summary Judgment, the Plaintiff specifically
notified the trial court Judge that he had made these two
payments on the discharged Note.
Plaintiff therefore has standing to raise claims in
defense of the title to his real property, which basis
therefore, created a split on this Panel in its ruling.
Respectfully submitted, The Plaintiff continues to disagree
with the majority’s findings related to the “prudential issues”
as identified by the Dissenting Judge, and the SJC.
Respectfully Submitted
11The Bankruptcy Code provides that a debtor may voluntarily

repay a debt that has been discharged, see 11 U.S.C. §
524(f). However, Plaintiff was directly solicited for this
“modification” by Ocwen’s predecessor servicer, IndyMac Bank,
which may have been a violation of the automatic stay.
22
Plaintiff
Anthony Giannasca.
By his Attorney
~ ,Jr .
BBO#656914
Glenn F. Russell, Jr., P.C.
38 Rock Street, Suite 12
Fall River, MA 02720
Phone: (508) 324-4545
Fax: (508) 938-0244
Email: russ45esq@gmail.com
23
RULE 16(k) STATEMENT
I , Glenn F. Russell, Jr., hereby certify that this brief
complies with the rules of court that pertain to the filing of
briefs, including, but not limited to: Rule 16(a)(6) (pertinent
findings or memorandum of decision); Mass. R. App. P. 16(e)
(references to the record); Mass. R. App. P. 16(f)
(reproduction of statutes, rules, regulations); Mass. R. App.
P. 16(h)(length of briefs); Mass. R. App. P. 18 (appendix to
the briefs); and Mass. R. App. P. 20 (form of briefs,
appendices, and other papers). This Brief complies with the
typeface requirements of Mass. R. App. P. 16(k) because it has
been prepared in 17 pages using a proportionally spaced
monospaced typeface, utilizing Word version in 12 times Courier
New style
~ ,Jr.
24
CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr., hereby certify that on this 17th
day of March 2020, I served one copy of the Appellants’ Opening
Brief and one volume of the Record Appendix, by Email, and / or
FedEx or USPS, postage prepaid, upon the following counsel of
record:
James P. Ponsetto
Greenberg Traurig, LLP
One International Place, 20th Floor
Boston, MA 02110
25
------------------------------------------------
ADDENDUM
-------------------------------------------
26
TABLE OF CONTENTS
1. Everbank v. Chacon
92 Mass. App. Ct.1101 (2017)..................ADD-027
2. In re Ryan,
560 B.R. 339 (Bankr. D. Haw. 2016)............ADD-033
3. 11 U.S. Code, § 521..............................ADD-045
4. Plaintiff’s Payment Receipts.....................ADD-055
5. Plaintiff’s 07/18/2014 Mortgage Statement........ADD-059
6. Ocwen 9/22/2014 Past Due Notice..................ADD-034
7. IndyMac HAFA Loan Mod Solicitation..............ADD-061
8. Plaintiff’s Chapter 7 Statement of Inention.....ADD-062
9. Plaintiff’s Chapter 11 Statement of Intention...ADD-065
10. Plaintiff’s Chapter 11 Plan....................ADD-066

16-P-1467
Appeals Court of Massachusetts.
EverBank v. Chacon
92 Mass. App. Ct 1101 (Mass. App. Ct 2017) 87 N.EJd 116
Decided Jul 28, 2017
16-P-1467
07-28-2017
EVERBANK v. Gerardo CHACON.
MEMORANDUM AND ORDER PURSUANT TO RULE I :28
On appeal from a judgment entered in the Housing Court in a summary process case, awarding possession of
his home to his former lender EverBank, Gerardo Chacon2 asks us to weigh in on a particularly muddy area of
bankruptcy law: what it means for a Chapter 7 debtor to state an intention, pursuant to 11 U.S.C. § 52 l(a)(2)
(2012), to "surrender" property of the bankruptcy estate that secures a debt listed on the debtor's schedule of
assets and liabilities. In a detailed and thoughtful series of rulings on cross motions for summary judgment, the
judge ultimately concluded that Chacon, while in Chapter 7 bankruptcy, had "surrendered" the property to
EverBank and so could not contest the validity ofEverBank's foreclosure and its consequent superior right to
possession. We find it necessary to reverse that portion of the judgment.
2 Gerardo Chacon's brother Gennando Chacon was a codefendant below but did not appeal. We therefore use the name
Chacon herein to refer solely to Gerardo Chacon.
Background. EverBank held Chacon's home mortgage, which was federally insured and thus subject to certain
regolations issued by the United States Department of Housing and Urban Development (HUD). 3 After Chacon
defaulted on the mortgage, EverBank foreclosed, acquired the property at the foreclosure sale, and then brought
this summary process action against Chacon. Chacon defended on the ground that EverBank had failed to
comply with a condition precedent to foreclosure, imposed by HUD regulations and incorporated by reference
into the mortgage, requiring that, in the event of a payment default, "[t]he mortgagee must have a face-to-face
interview with the mortgagor, or make a reasonable effort to arrange such a meeting," before commencing
foreclosure proceedings or acquiring title to the property. 24 C.F.R. § 203.604(b) (2016). See 24 C.FR. §
203500 (2016). An obvious purpose of such a face-to-face interview is to discuss a repayment plan,
modification of the mortgage, or other measures that may avoid the need for foreclosure and allow the
mortgagor to remain in his or her residence and repay the loan, thus minimizing the need for HUD, as insurer,
to pay losses to mortgagees. See 24 C.F.R. §§ 203.50 I, 203.600 -203.616 (2016).
3 Chacon states, and EverBank does not dispute, that the mortgage was insured under a Federal Housing Administration
program.
® casetext
ADD-027
EverBank v. Chacon 92 Mass. App. Ct. 1101 (Mass. App. Ct. 2017)
The motion judge initially agreed with Chacon, ruling that EverBank's noncompliance with the regulation
rendered its foreclosure on Chacon's home void ab initio, so that EverBank had no right of possession superior
to Chacon's. 4 On EverBank's motion for reconsideration, however, the judge--while reiterating that as a
general matter a HUD-insured mortgagee's noncompliance with the regulation would invalidate a foreclosure
and thus be a defense to a summary process action' -ruled that Chacon was no longer entitled to raise that
defense. The judge reasoned that in the Chapter 7 proceeding, "Chacon had elected to surrender any interest he
had in the mortgaged property to EverBank," and so the doctrines of waiver and judicial estoppel now barred
Chacon from contesting the validity of the foreclosure. Chacon appeals the resulting judgment awarding
possession to EverBank. 6
4 See ~ g o Bank, N.A. v. Cook, 87 Mass. App. Ct. 382, 385-386, 389 (2015) (failure to comply with applicable
HUD face-to-face interview regulation would render foreclosure invalid);~ v. Wells FargQ..llimk,..N.,.&, 89 Mass.
App. Ct. 772, 774 & n.3 (2016) (same, citing !:QQk ).
5 The judge rejected EverBank's arguments that various exemptions to the regulation, concerning the location of
EverBank's offices and Chacon's earlier execution of a repayment plan, relieved EverBank of the duty to comply with
the regulation. Also, in a decision on Chacon's motion for further reconsideration, the judge noted but did not resolve
EverBank's argument that meetings between its counsel and Chacon's during the bankruptcy proceeding constituted
compliance with the regulation's face-to-face meeting requirement. On appeal, EverBank does not argue any of these
issues as alternative grounds for affirmance, and so we do not discuss them further.
6 The judgment dismissed EverBank's claim for use and occupancy, and Everbank did not cross-appeal.
Discussion. We fast address and reject EverBank's two threshold procedural arguments for affirmance. We then
explain why Chacon's election of the Chapter 7 "surrender" option did not bar him from raising in Housing
Court the defense that noncompliance with the HUD regulation rendered the foreclosure invalid-a defense
that the judge ruled was, if available, sufficient to order judgment for Chacon.
a. Timeliness. Although the judge and the Appeals Court Clerk's Office deemed this appeal timely filed,
EverBank continues to assert that the appeal is untimely. To the extent that the order on our court docket does
not fmally dispose of any questious oftimeliuess, we conclude, substantially for the reasons set forth in
Chacon's reply brief, that the appeal was timely.
b. Res judicata. EverBank argues that prior judgments issued by the United States Bankruptcy Court for the
District of Massachusetts and the Land Court preclude Chacon from now challenging the validity of the
foreclosure in this summary process action. We conclude that neither issue preclusion' nor claim preclusion'
bars Chacon's defense here.
7 "The doctrine of issue preclusion provides that when an issue has been actually litigated and determined by a valid and
final judgment, and the detennination is essential to the judgment, the detennination is conclusive in a subsequent
action between the parties whether on the same or different claim." lamsz, v. Eal!Mr, 436 Mass. 526, 530-531 (2002)
(quotation omitted).
8 "The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and
prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." K2lll:in v. ~
Registration in Med 444 Mass. 837, 843 (2005) (quotation omitted). Where claim preclusion applies, it "bars further
litigation of all matters that were or should have been adjudicated in the [earlier] action."~ v. Heacock 402
Mass. 21, 23 (1988).
~ casetext 2
ADD-028
i. BankruP.t£Y. Court P.roceeding. We reject EverBank's argument that the Bankruptcy Court's allowance of
EverBank's motion for relief under 11 U.S.C. § 362(e) (2012) from the automatic bankruptcy stay precludes
Chacon from challenging the validity of the mortgage foreclosure in the sununary process proceeding. The
Housing Court judge correctly concluded that no such preclusion applied, because a Bankruptcy Court judge's
decision to lift the stay under§ 362(e) results from a limited, expedited hearing. See Grella v. Salem Five Cent
Sav. Bank, 42 F.3d 26, 31-35 (1st Cir. 1994). It is not an adversary proceeding, does not involve a full
adjudication on the merits, and determines no substantive claims, defenses, or counterclaims underlying the
validity of a lien. See ibid. A fortiori, it can have no issue or claim preclusive effect with regard to the validity
of the process used to foreclose upon a lien (here, the mortgage) after the stay is lifted.
ii. Land Court v.roceeding. We also reject Everbank's argtunent as to the preclusive effect of the Land Court
judge's preforeclosure judgment that Chacon was not entitled to protection under the Servicemembers Civil
Relief Act (SCRA). See 50 U.S.C. app. § 501 et seq. (2012); St. 1943, c. 57, as amended through St. 1998, c.
142. That Land Court judgment made no determination whatsoever as to the parties' rights and obligations
under the mortgage itself. See HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 196-197 (2013) (SCRA
proceedings address limited subject matter and are neither part of nor necessary to foreclosure process). Indeed,
a party not entitled to relief under the SCRA is not even permitted to appear in a Land Court SCRA proceeding,
see jg. at 198-199, much less assert a preemptive defense to an anticipated foreclosure. The validity of the
foreclosure was not actually litigated, and therefore issue preclusion does not apply. And because the validity of
the foreclosure was not a claim that could, let alone "should have been adjudicated in the [earlier] action,"
claim preclusion does not apply. Heacock v. Heacock, 402 Mass. 21, 23 (1988).
c. Effect of the ChaP.ter 7 "surrender." We first review the applicable Chapter 7 bankruptcy framework and the
relevant events in Chacon's Chapter 7 proceeding. If an individual debtor files a schedule of assets and
liabilities that includes debts secured by property of the estate, then the debtor must file "a statement of his
intention with respect to the retention or surrender of such property and, if applicable, specifying that such
property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to
reaffirm debts secured by such property." 11 U.S.C. § 521 (a)(2)(A). The debtor is given a limited time to
"perform his intention," 11 U.S.C. § 521 (a)(2)(B). But "nothing in [the provisions just quoted] shall alter the
debtor's or the [bankruptcy] trustee's rights with regard to such property under this title." 11 U.S.C. § 521 (a)
(2).'
9 The provision contains an exception for personal property that is not relevant here. II U.S.C. § 52l{a), citing 11 U.S.C.
§ 362(h).
These provisions must be read together with the requirement in the same section that the debtor "surrender to
the [bankruptcy] trustee all property of the estate." 11 U.S.C. § 52 l(a)(4). The trustee, afternotice and hearing,
"may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and
benefitto the estate." 11 U.S.C. § 554(a) (2012). And, "[u]nless the court orders otherwise, any property
scheduled under section 521 (a)(!) of this title not otherwise administered at the time of the closing of a case is
abandoned to the debtor." 11 U.S.C. § 554(c).
Chacon initially filed for Chapter 13 bankruptcy; he listed his home as securing a claim of$420,868, but as
having a value of only $3 I 8,500. EverBank sought and obtained relief from the automatic stay that barred it
from foreclosing upon its mortgage during the bankruptcy. Chacon then converted his bankruptcy case to
Chapter 7 and timely filed a statement of intention to "surrender" the property. Because EverBank's secured
~ casetext 3
ADD-029
claim exceed the property's value (putting the property "under water"), and because the bankruptcy estate
included no other nonexempt assets that were available to pay Chacon's liabilities, the trustee treated the case
as a 11no asset" case, "abandoned 11 the property, and closed the case in late 2011.
This resulted in the discharge (under 11 U.S.C. § 524 [a][2]) ofChacon's personal liability on the note, but did
not impair EverBank's ability to proceed in rem by foreclosing on the mortgage. See Johnson v. Home State
Banlc, 50 I U.S. 78, 83 (199l)("[A] creditor's right to foreclose on the mortgage survives or passes through the
bankruptcy," unaffected by discharge ofin personam liability). Some months later, EverBank, without seeking
a face-to-face interview with Chacon pursuant to the HUD regulation, commenced the foreclosure, acquired the
property, and sought to evict Chacon.
i. Conclusions of the Housing Courtjudg~. The Housing Court judge concluded that Chacon "surrendered" the
property "to EverBank," that this was "a condition for obtaining a Chapter 7 discharge of his mortgage loan,"
and that "the bankruptcy court issued its Chapter 7 bankruptcy discharge [of Chacon's personal liability] in
reliance on Chacon's explicit statement of his intentions to surrender the property." On this basis, the judge
ruled that "Chacon waived any right he may have had to assert the non-compliance with [the HUD regulation]
as a defense in this summary process action," and that the doctrine of judicial estoppel now barred Chacon from
contesting EverBank's right to foreclose. 10
IO The judge also concluded that after the discharge, Chacon could not seek to enforce the HUD regulation's face-to-face
interview requirement, because for EverBank to seek such an interview would have violated the Bankruptcy Code's
pem1anent injunction against creditors taking in personam actions to collect discharged debts. 11 U.S.C. § 524(a)(2).
The judge later acknowledged, however, on Chacon's motion for further reconsideration, that the Bankruptcy Code
includes a specific exception allowing a secured creditor, even after the discharge of a debt owed on a principal
residence, to "seekI ] or obtain[ ] periodic payments associated with a valid security interest in lieu of pursuit of in rem
relief to enforce the lien.'' 11 U.S.C. § 524{j). Although, as the judge noted, § 524(j) does not impose an affirmative
obligation on a creditor to seek to meet to discuss alternatives to foreclosure, it remains the case that such an obligation
arises from the HUD regulation itself, as incorporated in the mortgage, before a foreclosure may validly be
commenced.
We are constrained to disagree. We first note that nothing in Chacon's statement of intention to surrender, or in
any of the other bankruptcy filings in the record, or in the statute governing such statements, indicated that
Chacon stated an intention to surrender the property "to EverBank." Chacon's statement said merely that the "
[p]roperty will be [s]urrendered," without saying to whom, and 11 U.S.C. § 521 (a)( 4) requires that the debtor
"surrender to the trustee all property of the estate" (emphasis added). Moreover, the trustee determined that the
estate should "abandon" the property without distributing or otherwise administering it, and absent a contrary
Banlcruptcy Court order (there was none here), such property abandoned "at the time of the closing of a case is
abandoned to the debtor" (emphasis added). 11 U.S.C. § 554(c).
Nor was the discharge of Chacon's personal liability in any way conditioned upon, or entered by the
Bankruptcy Court in reliance upon, his statement of intention to surrender the property. See In re RY.an, 560
B.R. 3 39, 351 (Bankr. D. Haw. 2016). "[D]ebtors are entitled to a chapter 7 discharge regardless of (I) whether
they file a statement of intention, (2) what they say in their statement of intention, and (3) whether they carry
out their stated intent." Ibid., citing 11 U.S.C. § 727.
More generally, the meaning of "surrender" and its effect on nonbankruptcy rights (such as foreclosure
procedures and protections under State law) has been a matter of considerable dispute among the bankruptcy
courts and other Federal courts, and has yet to be defmitively resolved. Compare In re Failla, 838 F.3d 1170
~ casetext 4
ADD-030
(11th Cir. 2016), with In re RY.an, 560 B.R. 339. Much of the disagreement grows out of an effort to explain
whether the term "surrender" carries the same meaning in both 11 U.S.C. § 52 l(a)(2)(A) and§ 52l(a)(4). 11
"According to one court, the legislative history simply confmns that the statute is a muddle .... [T]he statute's
text 'is so enigmatic ... that the most that can be said in its defense is that the Congress settled upon a calculated
ambiguity to resolve an intractable difference of opinion.' "In re Kasr.er, 309 B.R. 82, 89 (Bankr. D. D.C.
2004), quoting from In re Weir, 173 B.R. 682, 685 (Bankr. E.D. Cal. 1994). Moreover, we are handicapped in
our review because EverBank has failed to brief the meaning of "surrender."
11 As recognized inln..rtiiay..e.s.., 376 B.R. 55, 62 n.10 (Bankr. D. Mass. 2007), the United States Court of Appeals for the
First Circuit did not definitively resolve the meaning of "surrender" in In re Pratt, 462 F.3d 14. I 8-19 & n.4 (1st Cir.
2006) (declining to address to whom collateral must be surrendered under§ 521 [a][2J ). Nor do we view In re
Canning, 706 F.3d 64. 69-70 (1st Cir. 2013), which in any event postdated Chacon's surrender here, as resolving all
relevant questions about surrender and its effect on the debtor's nonbankruptcy rights as to the collateral.
In view of the continuing debate among the Federal courts, including the Bankruptcy Courts, it would
accomplish little for us to wade into these muddy waters and make any definitive ruling regarding the correct
interpretation of the term "surrender." Nor, as explained infra, need we do so. We do find more persuasive the
BY.an court's conclusion that § 521 (a)(2)(A) is principally a notice statute, and a debtor's statement of an
intention to "surrender" a property does not bind the debtor to physically tum over the property to the creditor
or to forfeit any nonbankruptcy rights in the property. See B.xan, 560 B.R. at 347-351. Accord In re Kasr.er,
309 B.R. at 86, 90, 92-93 (interpreting prior version of§ 521 [a][2][A] ). We are less persuaded by the Failla
court's reasoning in reaching the opposite conclusion, in part because it does not adequately consider the effect
of 11 U.S.C. § 554(c). 838 F.3d at 1175-1177. But which view will ultimately prevail is a matter of bankruptcy
law that we do not presume to predict. The standards for waiver and judicial estoppel make that unnecessary.
ii. Waiver and judicial estor.r.el. To determine whether (as the judge concluded) Chacon's statement of intention
to surrender the property constituted a waiver of his right to challenge the foreclosure, we ask whether he
"intentional[ly] relinquish[ ed]" a known right. Roseman v. Dax, 345 Mass. 93, 99 (1962) ( quotation omitted).
Similarly, resolution of the judicial estoppel issue requires a determination of whether Chacon's position in the
bankruptcy proceeding is squarely inconsistent with his challenge to the foreclosure in the summary process
proceeding. "Judicial estoppel bars a party from asserting a position directly inconsistent with, meaning
mutually exclusive of, the position asserted in a prior proceeding where the party convinced the court to accept
its prior position." Bax State Gas Co. v. Der.artment of Pub. Utils., 459 Mass. 807, 818 (2011 ). See Otis v.
ArbellaMut. Ins. Co., 443 Mass. 634, 641 (2005), citing New Hamr.shire v. Maine, 532 U.S. 742, 750 (2001)
(for judicial estoppel to apply, current position must be "clearly inconsistent" with prior position).
Given the considerable disagreement among courts that have extensively analyzed the meaning of the term
"surrender" in the United States Bankruptcy Code, we carmot say that Chacon, by electing to surrender,
"intentionally" waived the right to raise his nonbankruptcy-law challenge to foreclosure, or that his current and
prior positions are "clearly inconsistent." 12 If the courts themselves cannot agree on whether 11 surrender 11 means
a debtor gives up such arguments, then the effect of Chacon's surrender is insufficiently clear to give rise to a
waiver of such arguments, or to judicial estoppel that bars raising them in a later proceeding such as this one.
12 The Housing Court judge relied upon~ v. lJ S Bank Nat! Assn 856 F. Supp. 2d 273,276 (D. Mass. 2012), and
Souza v. Bank of Am. Natl. Assn., U.S. Dist. Ct., No. l:13--cv-10181-PBS (D. Mass. July 8, 2013), in reaching the
opposite conclusion, that judicial estoppel applies. Those decisions (which postdate Chacon's surrender here) rely on
dicta in In re Pratt 462 F.3d at 18-19, which was not conclusive of the issue in this case. See note 10, filllilll-
Additionally, the judge noted a passage in a bankruptcy treatise citing 1:ratt: that treatise, however, also cites the saving
~ casetext 5
ADD-031
clause in 11 U.S.C. § 52l(a)(2)(B) and notes that Congress did not intend§ 521 to reduce a debtor's substantive rights
vis-a-vis a creditor (except as provided in another subsection not relevant here). 4 Collier on Bankrnptcy par. 521.14[3]
(Resnick & Sommer eds., 16th ed. 2010). In our view, the ambiguity noted in £mtl and Collier further supports the
conclusion that Chacon neither waived nor was estopped from asserting a foreclosure defense.
Conclusion. Chacon was not barred by issue or claim preclusion, waiver, or judicial estoppel from challenging
the foreclosure in the summary process proceeding. As the Housing Court judge correctly ruled in the first
instance, EverBank's failure to comply with 24 C.F.R. § 203.604(b) deprived it of the right to invoke the
statutory power of sale required to foreclose, and the foreclosure was void ab initio. The January 21, 2015,
judgment for EverBank on its claim for possession is vacated insofar as it applied to Gerardo Chacon, and
judgment is to enter for Gerardo Chacon on that claim. The judgment is otherwise affirmed.
So ordered.
Vacated in part; affirmed in part.
-
~fa casetext
ADD-032
Case No. 09-01604
United States Bankruptcy Court, D. Hawai'i.
In re Ryan
560 B.R. 339 (Bankr. D. Haw. 2016)
Decided Oct 19, 2016
Case No. 09-01604
10-19-2016
In re David Joseph Ryan and Melissa Ann Ryan, Debtors.
James J. Bickerton, Bridget G. Morgan, Bickerton Dang LLLP, John Francis Perkin, Perkin & Faria, LLLC,
Van-Alan H. Shima, Affinity Law Group, LLLC, Honolulu, HI, David W. Cain, Cain and Herren, LLLP,
Wailuku, HI, for Debtors.
Robert J. Faris, United States Bankruptcy Judge
342 *342
James J. Bickerton, Bridget G. Morgan, Bickerton Dang LLLP, John Francis Perkin, Perkin & Faria, LLLC,
Van-Alan H. Shima, Affmity Law Group, LLLC, Honolulu, HI, David W. Cain, Cain and Herren, LLLP,
Wailuku, HI, for Debtors.
MEMORANDUM OF DECISION REGARDING EFFECT OF DISCHARGE ORDER AND FINAL

DECREE ON CERTAIN POST-DISCHARGE CLAIMS
Robert J. Faris, United States Bankruptcy Judge
David Joseph Ryan and Melissa Ann Ryan conunenced a chapter 7 bankruptcy case, stated their intention to
"surrender" their residence, and obtained a discharge in bankruptcy. Later, Mr. and Mrs. Ryan brought an action
in Hawaii state court against CIT Bank ("CIT"), alleging that, after the discharge and final decree were entered,
CIT's predecessor conducted a wrongful foreclosure of their residence. CIT moved to dismiss, arguing that the
Ryans' "surrender" of their residence precluded them from asserting those claims. The Ryans asked this court to
clarify the effects of its orders on their wrongful foreclosure action. This memorandum explains the meaning
and effect of "surrender" in the context of the Ryans' claims for a post-discharge wrongful foreclosure.
I. BACKGROUND
The relevant facts are undisputed.
On January 23, 2004, the Ryans purchased a home located at 209 Halona Street, Kihei, Maui (the "Property").
In 2008, Debtors borrowed $625,500.00 secured by a mortgage on the Property.
On January 16, 2009, the Ryans fried this bankruptcy case. In their schedules, they stated that the Property was
worth $690,800.00, and was subject to the mortgage and their homestead exemption of $21,925.00. 1 On their
343 statement of intention, the Ryans listed the Property as '343 "surrendered." 2 They also fried a Declaration of
~ casetext
ADD-033
In re Ryan 560 B.R. 339 (Bankr. D. Haw. 2016)
Debtor re: Surrender of Property ("surrender declaration"), surrendering and relinquishing "any and all legal,
equitable and possessory interests" in the Property. 3
1 Dkt.# 1 at 15.
2 Dkt. # 1 at 36.
3 Dkt. # 4.
On August 14, 2009, OneWest Bank ("OneWest") filed a motion for relief from the automatic stay to foreclose
the mortgage on the Property. 4 One West claimed it held the original note and was owed payments from the
Ryans. The Ryans did not oppose the motion and the court granted it on September I, 2009. 5
4 Dkt. # 14.
5 Dkt. # 19.
On September 5, 2009, the chapter 7 trustee filed a report ofno distribution, certifying that the estate was fully
administered. 6 On October 14, 2009, the court granted the Ryans a discharge and closed the bankruptcy case.
6 Dkt. # 22.
On January 15, 20 I 0, OneWest foreclosed on the Property through a nonjudicial foreclosure.
On January 21, 2016, the Ryans commenced a wrongful foreclosure action in Hawaii state court against CIT,
OneWest's successor-in-interest. CIT moved to dismiss the complaint, arguing that the Ryans are judicially
estopped from pursuing their claims because the bankruptcy court relied on the statement of intention and the
surrender declaration when it entered the Ryans' discharge order. CIT further argued that the Ryans lack
standing to bring the wrongful foreclosure claims because they could not have been injured when OneWest
foreclosed, as they no longer owned the home after surrendering it in their bankruptcy case. In response to
CIT's motion to dismiss, the Ryans reopened their bankruptcy case and filed the instant motion.
II. DISCUSSION
A. Justiciability
The Ryans request an order from this court stating that their chapter 7 discharge and the final decree do not
deprive them of any substantive state law right to litigate their wrongful foreclosure action. CIT contends that a
clarifying order from this court would constitute an advisory opinion because it would not resolve the judicial
estoppel or standing issues that CIT raised in the wrongful foreclosure action.
"The Constitution limits the jurisdiction of the federal courts to live cases and controversies, and as such
federal courts may not issue advisory opinions. "7 There is undoubtedly a live dispute between the Ryans and
CIT about the validity of the foreclosure and the Ryans' right to challenge it. The parties' disagreement about
the meaning and effect of "surrender" under the Bankruptcy Code is not feigned or hypothetical.
7 Kittel v. Thomas, 620 F.3d 949,951 (9th Cir. 2010).
The cases cited by CIT are not applicable. In Coffin v. Malvern Federal Sav. Bank ,8 the court of appeals held
that the bankruptcy court rendered an advisory opinion when it said that certain liens would survive the
discharge in a chapter 13 case. Coffin is distinguishable because the bankruptcy court there declared the
344 prospective effect of a discharge that had not been granted, while in this case the '344 discharge has already
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ADD-034
been entered and the parties are actively litigating its effect. In Elias v. Lisowski Law Firm, Chtd (In re Elias) ,9
the court held that, after the dismissal of a bankruptcy case, the bankruptcy court properly exercised its
discretion when it declined to enter orders about attorneys' fees incurred during the case. In contrast, the Ryans
ask me to interpret the orders that were actually entered, not to grant new relief. "[l]t is well recognized that the
bankruptcy court has power to interpret and enforce its own orders." 10
8 90 F.Jd 851 (3d Cir. 1996).
9 215 B.R. 600 (9th Cir. BAP 1997), affirmed, 188 FJcl 1160 (9th Cir. 1999).
IO Wilshire Courtyard v. California Franchise Tax Board (In re Wilshire Courtyard) , 729 F.3d 1279. 1289 (9th Cir. 2013)
(citing Travelers Indemn. Co. v. Bailey, 557 U.S. 137, 151, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) ).
A live controversy exists and this matter is justiciable.
B. Statutory Subject Matter Jurisdiction

CIT argues that this court lacks statutory subject matter jurisdiction to adjudicate this motion. I disagree in part.
The jurisdiction of the bankruptcy courts, like all federal courts, is created and limited by statute." The federal
district courts have "original and exclusive jurisdiction" over all bankruptcy cases and original but
nonexclusive jurisdiction over "all civil proceedings arising under title 11, or arising in or related to cases under
title ll. 1112
II Celotex Corp. v. Edwards, 514 U.S. 300,307, 115 S.Ct. 1493, 131 LEd.2d 403 (1995) ;In re Wilshire Courtyard, 729
F3d 1279. 1284 (9th Cir. 2013).
12 In re Wilshire Courtyard, 729 F.3d at 1285 (9th Cir. 2013).
The federal district courts may refer to the bankruptcy courts some or all of the matters covered by these
jurisdictional grants. 13 The district court for this district has referred all such matters to the bankruptcy court. 14
13 28 U.S.C. § 157(a).
14 LR 1070.l(a).
The phrases "arising under title 11, 11 11 arising in a case under title 11, 11 and "related to a case under title 11" are
terms of art. A proceeding "arises under" title 11 if it presents claims for relief created or controlled by title
11. 15 The claims for relief in a proceeding "arising in" a title 11 case are not explicitly created or controlled by
title 11, but such claims nonetheless would have no existence outside of a bankruptcy case. The remaining
category of bankruptcy jurisdiction, "related to" jurisdiction, is an exceptionally broad category encompassing
virtually any matter either directly or indirectly related to the bankruptcy case. 16 The Ninth Circuit applies the
Pacor test to determine related to" jurisdiction. 17 If the determination at issue, in any conceivable way, could
11
18
345 affect the bankruptcy estate, then such jurisdiction exists. '345 This motion raises two issues over which this
court has statutory subject matter jurisdiction.

15 In re Wilshire Courtyard, 729 F.3d at 1285 (9th Cir. 2013).
16 In re Chagolla, 544 B.R. 676, 680 (9th Cir. BAP 2016) (citing Sasson v. Sokoloff, 424 F.3d 864, 868 (9th Cir. 2005).
17 In re Deit=, 760 F.3d I 038, I 053 (9th Cir. 2014).
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ADD-035
18 Id ; Vacation Village, Inc. v. Clark County Nev. , 497 F.3d 902, 91 l, (9th Cir.2007) (citing Pacor Inc. v. Higgins, 743
F.2d 984. 994 (3d Cir.1984) ), for the proposition that "where the cause of action is between third parties, the test for
'whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have
any effect on the estate being administered in bankruptcy.")
The first is the meaning of the word "surrender" as it is used in section 521. This definitional question "arises
under" the Code because the answer "depends on a substantive provision of the Bankruptcy Code." 19
19 In re Ray, 624F.Jd 1124. 1131 (9th Cir. 2010).
The second is whether the entry of the discharge order and the final decree were dependent on the statement of
intention or the surrender declaration. This issue also "arises under" the Code because it turns on a construction
of multiple Code sections.
Even if they were not expressly rooted in the Code, both of these questions also "arises in" the bankruptcy case
because they would not independently exist outside of bankruptcy. 20 There is no such thing as a statement of
intention or a surrender declaration outside of a bankruptcy proceeding.
20 Id
The other disputes between the parties, including whether judicial estoppel applies, are questions of state law
that depend only in part on the bankruptcy law principles discussed in this decision. Those larger questions
therefore do not "arise under" the Bankruptcy Code or "arise in" the bankruptcy case. They may be "related to"
the Ryans' bankruptcy case, but, for the reasons stated in the next section, I will abstain from deciding them.
C. Abstention
CIT argues that this court should exercise its power of discretionary abstention:
Except with respect to a case under chapter 15 of title 11, nothing in this section prevents a district court
in the interest of justice, or in the interest of comity with State courts or respect for State law, from
abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case
under title 11. 21
21 28 U S.C. § 1334(c)(I).
According to the Ninth Circuit, a court should consider twelve factors in determining whether discretionary
abstention is appropriate:
(I) the effect or lack thereof on the efficient administration of the estate if a Court recommends
abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the
difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced
in state court or other nonbankruptcy court, (5) the jurisdictional basis, if any, other than 28 U.S.C. §
1334, (6) the degree ofrelatedness or remoteness of the proceeding to the main bankruptcy case, (7) the
substance rather than form of an asserted 'core' proceeding, (8) the feasibility of severing state law
claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement
left to the bankruptcy court, (9) the burden of[the bankruptcy court's] docket, (10) the likelihood that
the commencement of the proceeding in bankruptcy court involves forum shopping by one of the
parties, (I I) the existence of a right to a jury trial, and (12) the presence in the proceeding ofnondebtor
parties. 22
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ADD-036
22 Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.) , 912 F.2d ll 62. 116 7 (9th Cir. 1990) (quoting In re
Republic Reader's Serv., Inc. , 81 B.R. 422. 429 (Banlcr. S. D. Tex. 1987) ).
346 '346
The court must weigh each of these factors against the others. A court can apply discretionary abstention even
if fewer than all of the factors weigh in favor of abstention. 23 In this case, the factors, applied to the two
questions of bankruptcy law described in the preceding section and taken together, weigh against abstention.
23 See, e. g., id.
Effect on Administration of the Estate. The estate has already been administered and the Ryans have
received their discharge, so this factor weighs in favor of abstention.
State Law Issues Predominate Over Bankruptcy Issues. The dispute between CIT and the Ryans includes
many issues of state law. But I will rule solely on issues of bankruptcy law. In light of the limited relief that I
will grant, this factor weighs against abstention.
Difficulty or Unsettled Nature of Applicable Law. The law concerning the meaning and effect of "surrender"
as used in the Code is difficult and unsettled. The bankruptcy court is better situated than the state court to
interpret the Code. This factor weighs strongly against abstention.
Presence of a Related Proceeding in State Court. This proceeding is closely related to the state court
proceedings. This factor favors abstention.
Jurisdictional Basis Other than 28 U.S.C. § 1334. Section 1334 is the sole basis for federal jurisdiction. This
factor weighs against abstention.
Degree of Relatedness or Remoteness to Bankruptcy Case. The issues that the Ryans raise bear directly on
the extent of the relief which chapter 7 debtors such as the Ryans receive. This close relationship weighs
strongly against abstention.
Substance Rather than Form of "Core" Proceeding. Because this matter involves the meaning and effect of
the Code, it is a core proceeding both in form and in substance. This factor weighs against abstention.
Feasibility of Severing State Law Claims from Core Bankruptcy Matters. The bankruptcy law issues are
readily severable from the state law issues. This factor does not favor abstention.
Burden of Bankruptcy Court's Docket. This case is not particularly burdensome. Therefore, this factor does
not favor abstention.
Likelihood that Commencement in Bankruptcy Court Involves Forum Shopping. Asking a specialized
court to construe its own orders, and to address legal questions within its area of specialization, is not improper
forum shopping. This factor weighs against abstention.
Existence of a Right to a Jury Trial . The parties may have a right to a jury trial in the wrongful foreclosure
action but this motion raises only legal issues that would not be presented to the jury. This factor is neutral.
Presence ofNondebtor Parties. The parties are the Ryans and their secured creditor, CIT, whose predecessor,
OneWest, obtained stay relief during the chapter 7 case. No other parties are affected. This factor weighs
against abstention.
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ADD-037
On balance, these factors suggest that I should not abstain from deciding the limited issues of federal
bankruptcy law discussed in this decision. The Ryans are probably not asking me to decide the larger questions
347 of judicial estoppel under state law, but if they are, I abstain from deciding those question. '347 D. Reopening
the Bankruptcy Case
CIT contends that the bankruptcy case was needlessly reopened because there is nothing for the bankruptcy
court to interpret or enforce. I disagree.
Section 350(b) permits reopening to "accord relief to the debtor." 24 The "decision to reopen is entirely within
[the bankruptcy court's] sound discretion. "25 A bankruptcy court should decline to reopen a case when doing so
would be a "pointless exercise," but in this case, reopening allows the Ryans to seek relief by obtaining
clarification on the effect of their bankruptcy discharge on their post-bankruptcy rights. 26 Reopening was
proper.
24 A bankruptcy court may reopen a closed case "to administer asserts, to accord relief to the debtor, or for other cause."
11 U.S.C. § 350(b).
25 Cherry v. Castillo, 297 F.3d 940, 945 (9th Cir. 2002).
26 See In re Beezley, 994 F.2d 1433, 1434 (9th Cir. 1993).
E. The Meaning of"Surrender" in Section 521(a)(2)(A)

CIT argues that the Ryans' statement in their chapter 7 case of their intention to "surrender" their residence
operated as a "relinquishment of the debtor's interest in the secured property as against the secured creditor" 27
and precluded them from suing for a post-discharge wrongful foreclosure. I disagree.
27 Dkt. # 37 at 38.
Section 52l(a)(2) requires an individual chapter 7 debtor who owns encumbered property to file "a statement of
his intention with respect to the retention or surrender of such property and, if applicable, specifying that such
property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to
reaffirm debts secured by such property" and "to perform his intention with respect to such property" within a
stated period. 28 The section contains a savings provision, sometimes called a "hanging paragraph" because of
its unusual placement: "nothing in paragraphs (A) or (B) ... shall alter the debtor's or the trustee's rights with
regard to [the collateral] under this title. "29
2S Section 521 states in relevant part:
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ADD-038
(a) The debtor shall-...
(2) if an individual debtor's schedule of assets and liabilities includes debts which are secured by property of
the estate-
(A) within thirty days after the date of the filing of a petition under chapter 7 of this title or on or before the
date of the meeting of creditors, whichever is earlier, or within such additional time as the court, for cause,
within such period fixes, file with the clerk a statement of his intention with respect to the retention or
surrender of such property and, if applicable, specifying that such property is claimed as exempt, that the
debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property;
and
(B) within 30 days after the first date set for the meeting of creditors under section 341(a), or within such
additional time as the court, for cause, within such 30--day period fixes, perform his intention with respect to
such property, as specified by subparagraph (A) of this paragraph;
except that nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor's or the trustee's
rights with regard to such property under this title, except as provided in section 362(h). 11 U.S.C. § 521.
29 Id.
The Code does not define "surrender." Section 52l(a)(2) also does not say to whom the debtor must surrender
348 the property, or what "surrender" requires the debtor to do. '348 Confusingly, another subsection of section
52l(a) also uses the word "surrender." Section 52l(a)(4) provides that, ifa trustee is serving in the case, the
debtor must "surrender to the trustee all property of the estate .... "
Two Code sections 30 state that, if a debtor fails to state his intentions or to carry out his intentions, the
automatic stay is lifted. But both of those sections apply only if the collateral is personal property. No other
Code sections describe the effect of the statement of intention.
30 11 U.S.C. §§ 362(h) and 52l(a)(6).
The Ryans argue that debtors who elect to "surrender" the collateral under section 52l(a)(2) need only
"surrender" the property to the trustee under section 52l(a)(4). This cannot be correct. The debtor in a chapter 7
case has an absolute duty to surrender property of the estate to the trustee on request. The debtor caunot avoid
that obligation by choosing to redeem or reaffirm a secured debt on the property. Suppose the debtor owned
real property worth $500,000 and subject to a mortgage securing a $10,000 debt. The debtor could redeem the
collateral by paying $10,000 to the secured creditor31 or could reaffirm the $10,000 debt by making a
repayment agreement with the secured creditor. 32 But neither of these simple expedients prevents the trustee
from selling the property or permits the debtor to deprive the unsecured creditors of $490,000 in gross equity.
Further, interpreting "surrender" in section 52l(a)(2) as the same as the "surrender" required by section 52l(a)
(4) would render part of section 521 (a)(2) superfluous. Therefore, although it is unusual to give the same word
different meanings in two subsections of the same statutory section, "surrender" in section 52l(a)(2) must not
mean just "surrender" to the trustee under section 52l(a)(4).
3 1 11 U.S.C. § 722.
32 11 U.S.C. § 524(c), (k).
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ADD-039
CIT argues that "surrender" under section 52l(a)(2) precludes a debtor from contesting a post-discharge
foreclosure on the surrendered property. 33 The leading case that supports CJT's position is the Eleventh Circuit's
decision in Failla, which came down after the hearing on the Ryans' motion. The Eleventh Circuit held that "
'surrender' required debtors to drop their opposition to a foreclosure action." 34 I respectfully disagree.
33 CIT argued to the state court that the surrender divested the Ryans of ownership of the property. Therefore, CIT argued
that the foreclosure did not inflict upon the Ryans injury in fact sufficient to confer standing upon them. This is plainly
wrong: "surrender" does not transfer ownership. Batali v. Mira Owners Association (In re Batali}, 2015 WL 7758330
(9th Cir. BAP Dec. 1, 2015).
34 Failla v. Citibank, N.A. (In re Failla) , 838 F.3d 1170, 1176 {l l th Cir.2016). This decision resolved a split among
bankruptcy courts in Florida.
The court relied heavily on a dictionary defmition of"surrender" as "[t]he giving up ofa right or claim." 35 But
the dictionary defmition does not say what "right or claim" is being given up. Viewing the word "surrender" in
its immediate statutory context, it is most logical to conclude that the "right or claim" that the debtor gives up is
the right to redeem the collateral or to reaffirm the secured debt. Nothing in the language of section 521
suggests that the debtor is required to give a broader waiver.
35 Id. at! 177.
The Failla court continues:
Debtors who surrender property must get out of the creditor's way. "[l]n order
349 '349
for surrender to mean anything in the context of§ 52l(a)(2), it has to mean that ... debtor[s] ... must not
contest the efforts of the lienholder to foreclose on the property." Othe1wise, debtors could obtain a
discharge in bankruptcy based, in part, on their sworn statement to surrender and "enjoy possession of
the collateral indefinitely while hindering and prolonging the state court process. "36
36 Id. (internal citations omitted).
This reasoning is also flawed. First, there is another perfectly plausible definition of "surrender" in section
52l(a)(2) : giving up the right to redeem or reaffirm. Second, the court assumes that the debtor's right to a
discharge is contingent upon the debtor's surrender of the collateral. As the following section will show, this
assumption is false. The debtor's failure to state his intention, or failure to carry out his stated intention, has no
effect on the debtor's right to a discharge.
The Failla court held that its view is consistent with the savings clause ( or "hanging paragraph") of section
52l(a)(2) :
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ADD-040
The hanging paragraph in section 52l(a)(2) also does not give the debtor the right to oppose a
foreclosure action. The hanging paragraph states that "nothing in subparagraphs (A) and (B) of this
paragraph shall alter the debtor's or the trustee's rights with regard to such property under this title,
except as provided in section 362(h)." The key words for purposes of this dispute are "under this title."
The hanging paragraph means that section 52l(a)(2) does not affect the debtor's or the trustee's
bankruptcy rights. Section 52l(a)(2) does not affect the trustee's bankruptcy rights because a debtor
must first surrender property to the trustee-who liquidates it or abandons it-before surrendering it to
the creditor. And section 52l(a)(2) does not affect the debtor's bankruptcy rights because a creditor is
still subject to the automatic stay and cannot foreclose on the property until the trustee decides to
abandon it. The hanging paragraph spells out an order of operations. It does not mean that a debtor who
declares he will surrender his property can then undo his surrender after the bankruptcy is over and the
creditor initiates a foreclosure action. 37
37 Id.
This reasoning assumes that the debtor's only "bankruptcy rights" in the collateral are the protection of the
automatic stay. This assumption is not correct. Among a great many other rights, debtors have the right to
object to the secured creditor's claim and challenge liens. 38 A party in interest, including the debtor, can
challenge secured claims on any ground available under nonbankruptcy law. There is no good reason to
construe the savings clause as limiting the debtor's post-bankruptcy rights and defenses.
38 I I U.S.C. § 502(a) (a "party in interest" may object to filed claims).
In short, I disagree with Failla and similar decisions holding that surrender requires the debtor to give up all
rights to defend against a post-discharge foreclosure. Instead, I agree with the decisions holding that the
debtor's stated intent to surrender merely means that the debtor does not intend to reaffirm, redeem, or exempt
350 the property. 39 This is consistent with the decision of the district court for 'JSO this district in Sigwart .40 It is
also consistent with the view of the bankruptcy appellate panel for this circuit41 and the leading bankruptcy
treatise 42 that section 52l(a)(2) is a notice provision that does not affect the respective rights of the debtor and
the secured creditor (other than possibly resulting in an early termination of the automatic stay).
39 See Green Tree Fin. Servicing Corp. v. Theobald (In re Theobald) , 218 B.R. 133, 136 (10th Cir. BAP 1998) ("Section
521 was not designed to provide a mechanism by which creditors may avoid obligations imposed by state law."); In re
Kasper, 309 B.R. 82, 86 (Bankr. D.D.C. 2004); In re Lair, 235 B.R. l, 12 (Bankr. M.D. La. 1999) (stating that
"surrender" means nothing other than choosing not to utilize the bankruptcy alternatives ofreaffinnation, redemption or
exemption and avoidance).
4 o Sigwartv. U.S. BankN.A., Civ. No. 13-00529 LEK-RLP, 2014 WL 1322813 (D. Haw. Mar. 31, 2014).
41 Mayton v. Sears, Roebuck & Co. (In re Mayton) , 208 B.R. 61 (9th Cir. BAP 1997) ("the only logical basis for
reconciling the conflicting elements of[§ 52l(a)(2)] is to hold that it is essentially a notice statute.").
42 4 Collier on Bankruptcy ,r 521.14[4], at 521-49 (16th ed. 2016) ("This provision does not affect the debtor's substantive
rights vis a vis the creditor .... ").
Surrender should not affect a debtor's substantive rights for a number of reasons.
First, the Code spells out the consequences of a stated intention to surrender: in certain circumstances, the
automatic stay is terminated. If Congress intended that "surrender" would have the far-reaching consequences
described in Failla , Congress could and would have said so.
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ADD-041
In re Ryan 560 B.R 339 (Bankr. D. Haw. 2016)
Second, the Code gives only the trustee the authority to compel a debtor to file the statement of intention and to
carry out the stated intention. 43 The fact that Congress did not give creditors the power to enforce the debtor's
stated intention emphasizes the limited effect of "surrender."
43 See 11 U.S.C. § 704(a)(3) (The trustee shall ensure that the debtor shall perfonn his intention as specified in section
521(a)(2)(B) of this title); see also In re Kasper, 309 B.R. 82, 91 (Bankr. D.D.C. 2004).
Third, the savings clause or "hanging paragraph" of section 52l(a)(2), fairly read, means that "surrender" does
not alter any substantive rights or defenses.
Finally, there is no reason to read the ambiguous word "surrender" under section 52l(a)(2) to give secured
creditors a free pass to violate the foreclosure laws. The Failla decision implies that a debtor's post-discharge
objection to a foreclosure is always abusive, but this is simply incorrect. Debtors may have perfectly legitimate
reasons to defend a foreclosure case post-discharge. For example, the property may be subject to a junior lien
securing a non-dischargeable debt, such as taxes. This is a particularly common problem in Hawaii, where
condominium ownership is prevalent and condominium assessments that are due and payable post-petition are
not dischargeable. 44 In such a case, the debtor has a good reason to want the senior lienholder to comply with
the law and secure the highest possible price for the property, in order to minimize the debtor's
nondischargeable liability. 45
44 11 U.S.C. § 523(a)( 16). CIT's argument also implies that, if a post-discharge foreclosure produced surplus proceeds, the
debtor would not be entitled to the funds. Of course, foreclosure sales rarely produce surplus proceeds, but there is no
good reason to give the secured creditor such a windfall.
45 See In re Donnell, 234 B.R. 567, 575 (Bankr. D.N.H. 1999).
Thus, the Ryans' statement that they intended to "surrender" the residence aod their surrender declaration do
not, as a matter of bankruptcy law, preclude the Ryans from defending against a foreclosure or asserting claims
based on an allegedly improper foreclosure.
F. Interplay between the Ryans' Surrender and Their Discharge.

351 CIT moved to dismiss the Ryans' complaint in state court on the ground that '351 they are judicially estopped
from bringing the wrongful foreclosure lawsuit. CIT argued that they gained a benefit from their stated
intention to surrender the residence when they got their discharge in bankruptcy. The Ryans ask me to clarify
that the discharge and final decree were not entered in reliance on the statement of intention.
CIT argues that I should not grant this request because the doctrine of judicial estoppel is a creature of state law
which the state court should decide. As a general principle, I agree, but in this case one element of CIT's
judicial estoppel argument is based entirely on bankruptcy law. It is appropriate for me to clarify this pure issue
of bankruptcy law and leave to the state court the larger question of whether judicial estoppel should apply.
As a matter of bankruptcy law, the Ryans' discharge was entirely independent of the "surrender" of the
Property. Section 727 says that "the court shall grant the debtor a discharge, unless" certain conditions exist.
These conditions are read strictly, narrowly, and in favor of the debtor. 46 None of the conditions that justify
denial of discharge has anything to do with the statement ofintention. 47 Thus, debtors are entitled to a chapter 7
discharge regardless of(!) whether they file a statement of intention, (2) what they say in their statement of
intention, and (3) whether they carry out their stated intent. 48
10
ADD-042
46 In re Neff, 824 F.3d 1181, 1187 (9th Cir. 2016) (citing Hawkins v. Franchise Tax Bd. a/California, 769 F.3d 662,666
(9th Cir. 2014).
47 CIT relies on the Ninth Circuit's unpublished memorandum in Rivera v. Recontrust Co. , 594 Fed.Appx. 412 (9th Cir.
2015). I am not bound to follow the decision because the Ninth Circuit chose not to publish it. The concise
memorandum suggests that the court thought that the debtor's discharge was dependent on the debtor's statement of
intention. For the reasons explained in the text, this is incorrect.
48 See 11 U.S.C. § 727.
Similarly, the entry of the final decree is not connected to the statement of intention. In a "no-asset" chapter 7
case, the court enters the final decree as soon as the discharge is issued and the trustee files the final report."'
49 This case also does not present the question of whether a debtor can challenge a foreclosure after discharge in a chapter
13 case where the debtor's plan proposed surrender of the collateral and the court confinned the plan. Hull v. Wells
Fargo Bank. N.A., Case No. 6:15--cv-01990-AA, 20 l6 WL 1271675, at *4 (D. Or. March 28, 2016).
G. Amendment of Statement of Intention

If their statement of intention does impair their right to prosecute their claims in state court, the Ryans seek
pennission to amend that statement. Because I have held (as stated in more detail above) that the statement of
intention has no such effect, amendment is unnecessary. Strictly as a precautionary matter, however, I will
allow the Ryans to file such an amendment within fourteen days after the entry ofthis decision.
A debtor may amend a statement of intention "at any time before the expiration of the period provided in§
521(a) of the Code." 50 The court may extend this deadline "on motion made after the expiration of the specified
period ... where the failure to act was the result of excusable neglect." 51 When the original time to amend the
statement of intention expired, the Ryans could not have reasonably foreseen that they would have claims
352 arising '352 from a foreclosure that occurred months later. Their failure to seek an extension earlier is
excusable, particularly in view of the conflict in the case law concerning the effect of their statement.
50 Fed. R. Bankr. P. 1009(b).
51 Fed. R. Banke. P 9006(b)(l).
CIT argues that an amendment at this late date will prejudice it:
OneWest presumably would have objected to the bankruptcy had it: (a) not reasonably believed that
Debtor would in fact surrender the Property; and/or (b) known that Debtors' "intent" was to seek return
of the Property debt-free seven years after the foreclosure. 52
52 Dkt. # 37 at 44.
CIT does not explain how it would have "objected to the bankruptcy." For the reasons explained above, CIT
could not have successfully objected to the Ryans' discharge or enforced the statement of intention. The Ryans'
failure to carry out their stated intention would have resulted, at most, in relief from the stay, but OneWest
sought relief from the stay, the Ryans did not object, and OneWest got that relief.
III. CONCLUSION
Counsel for the Ryans shall submit a proposed order consistent with this decision.
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SO ORDERED.
12
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11 U.S. Code § 521 - Debtor’s duties | U.S. Code | US Law | LII / Legal Information Ins… Page 1 of 10
11 U.S. Code§ 521. Debtor’s duties

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(a) The debtor shall—
(1) file—
(A)
a list of creditors; and
(B) unless the court orders otherwise—
(i)
a schedule of assets and liabilities;
(ii)
a schedule of current income and current expenditures;
(iii) a statement of the debtor’s financial affairs and, if section 342(b) applies, a certificate—
(I)
of an attorney whose name is indicated on the petition as the attorney for the debtor, or a bankruptcy
petition preparer signing the petition under section 110(b)(1), indicating that such attorney or the
bankruptcy petition preparer delivered to the debtor the notice required by section 342(b); or
(II)
if no attorney is so indicated, and no bankruptcy petition preparer signed the petition, of the debtor
that such notice was received and read by the debtor;
(iv)
copies of all payment advices or other evidence of payment received within 60 days before the date
of the filing of the petition, by the debtor from any employer of the debtor;
(v)
a statement of the amount of monthly net income, itemized to show how the amount is calculated;
and
(vi)
a statement disclosing any reasonably anticipated increase in income or expenditures over the 12
month period following the date of the filing of the petition;
(2) if an individual debtor’s schedule of assets and liabilities includes debts which are secured by
property of the estate—
(A)
within thirty days after the date of the filing of a petition under chapter 7 of this title or on or before
the date of the meeting of creditors, whichever is earlier, or within such additional time as the court,
for cause, within such period fixes, file with the clerk a statement of his intention with respect to the
retention or surrender of such property and, if applicable, specifying that such property is claimed as
exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts
secured by such property; and
(B)
ADD-045
https://www.law.cornell.edu/uscode/text/11/521 3/16/2020
within 30 days after the first date set for the meeting of creditors under section 341(a), or within
such additional time as the court, for cause, within such 30day period fixes, perform his intention
with respect to such property, as specified by subparagraph (A) of this paragraph;
except that nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor’s or the
trustee’s rights with regard to such property under this title, except as provided in section 362(h);
(3)
if a trustee is serving in the case or an auditor is serving under section 586(f) of title 28, cooperate
with the trustee as necessary to enable the trustee to perform the trustee’s duties under this title;
(4)
if a trustee is serving in the case or an auditor is serving under section 586(f) of title 28, surrender
to the trustee all property of the estate and any recorded information, including books, documents,
records, and papers, relating to property of the estate, whether or not immunity is granted under
section 344 of this title;
(5)
appear at the hearing required under section 524(d) of this title;
(6) in a case under chapter 7 of this title in which the debtor is an individual, not retain possession of
personal property as to which a creditor has an allowed claim for the purchase price secured in
whole or in part by an interest in such personal property unless the debtor, not later than 45 days
after the first meeting of creditors under section 341(a), either—
(A)
enters into an agreement with the creditor pursuant to section 524(c) with respect to the claim
secured by such property; or
(B)
redeems such property from the security interest pursuant to section 722; and
(7)
unless a trustee is serving in the case, continue to perform the obligations required of the
administrator (as defined in section 3 of the Employee Retirement Income Security Act of 1974) of an
employee benefit plan if at the time of the commencement of the case the debtor (or any entity
designated by the debtor) served as such administrator.
If the debtor fails to so act within the 45day period referred to in paragraph (6), the stay under
section 362(a) is terminated with respect to the personal property of the estate or of the debtor
which is affected, such property shall no longer be property of the estate, and the creditor may take
whatever action as to such property as is permitted by applicable nonbankruptcy law, unless the
court determines on the motion of the trustee filed before the expiration of such 45day period, and
after notice and a hearing, that such property is of consequential value or benefit to the estate,
orders appropriate adequate protection of the creditor’s interest, and orders the debtor to deliver any
collateral in the debtor’s possession to the trustee.
(b) In addition to the requirements under subsection (a), a debtor who is an individual shall file with
the court—
(1)
ADD-046
a certificate from the approved nonprofit budget and credit counseling agency that provided the
debtor services under section 109(h) describing the services provided to the debtor; and
(2)
a copy of the debt repayment plan, if any, developed under section 109(h) through the approved
nonprofit budget and credit counseling agency referred to in paragraph (1).
(c)
In addition to meeting the requirements under subsection (a), a debtor shall file with the court a
record of any interest that a debtor has in an education individual retirement account (as defined in
section 530(b)(1) of the Internal Revenue Code of 1986), an interest in an account in a qualified ABLE
program (as defined in section 529A(b) of such Code,[1] or under a qualified State tuition program
(as defined in section 529(b)(1) of such Code).
(d)
If the debtor fails timely to take the action specified in subsection (a)(6) of this section, or in
paragraphs (1) and (2) of section 362(h), with respect to property which a lessor or bailor owns and
has leased, rented, or bailed to the debtor or as to which a creditor holds a security interest not
otherwise voidable under section 522(f), 544, 545, 547, 548, or 549, nothing in this title shall
prevent or limit the operation of a provision in the underlying lease or agreement that has the effect
of placing the debtor in default under such lease or agreement by reason of the occurrence,
pendency, or existence of a proceeding under this title or the insolvency of the debtor. Nothing in this
subsection shall be deemed to justify limiting such a provision in any other circumstance.
(e)
(1)
If the debtor in a case under chapter 7 or 13 is an individual and if a creditor files with the court at
any time a request to receive a copy of the petition, schedules, and statement of financial affairs filed
by the debtor, then the court shall make such petition, such schedules, and such statement available
to such creditor.
(2)
(A) The debtor shall provide—
(i)
not later than 7 days before the date first set for the first meeting of creditors, to the trustee a copy
of the Federal income tax return required under applicable law (or at the election of the debtor, a
transcript of such return) for the most recent tax year ending immediately before the commencement
of the case and for which a Federal income tax return was filed; and
(ii)
at the same time the debtor complies with clause (i), a copy of such return (or if elected under clause
(i), such transcript) to any creditor that timely requests such copy.
(B)
If the debtor fails to comply with clause (i) or (ii) of subparagraph (A), the court shall dismiss the
case unless the debtor demonstrates that the failure to so comply is due to circumstances beyond the
control of the debtor.
ADD-047
(C)
If a creditor requests a copy of such tax return or such transcript and if the debtor fails to provide a
copy of such tax return or such transcript to such creditor at the time the debtor provides such tax
return or such transcript to the trustee, then the court shall dismiss the case unless the debtor
demonstrates that the failure to provide a copy of such tax return or such transcript is due to
circumstances beyond the control of the debtor.
(3) If a creditor in a case under chapter 13 files with the court at any time a request to receive a copy
of the plan filed by the debtor, then the court shall make available to such creditor a copy of the plan
—
(A)
at a reasonable cost; and
(B)
not later than 7 days after such request is filed.
(f) At the request of the court, the United States trustee, or any party in interest in a case under
chapter 7, 11, or 13, a debtor who is an individual shall file with the court—
(1)
at the same time filed with the taxing authority, a copy of each Federal income tax return required
under applicable law (or at the election of the debtor, a transcript of such tax return) with respect to
each tax year of the debtor ending while the case is pending under such chapter;
(2)
at the same time filed with the taxing authority, each Federal income tax return required under
applicable law (or at the election of the debtor, a transcript of such tax return) that had not been
filed with such authority as of the date of the commencement of the case and that was subsequently
filed for any tax year of the debtor ending in the 3year period ending on the date of the
commencement of the case;
(3)
a copy of each amendment to any Federal income tax return or transcript filed with the court under
paragraph (1) or (2); and
(4) in a case under chapter 13—
(A)
on the date that is either 90 days after the end of such tax year or 1 year after the date of the
commencement of the case, whichever is later, if a plan is not confirmed before such later date; and
(B)
annually after the plan is confirmed and until the case is closed, not later than the date that is 45
days before the anniversary of the confirmation of the plan;
a statement, under penalty of perjury, of the income and expenditures of the debtor during the tax
year of the debtor most recently concluded before such statement is filed under this paragraph, and
of the monthly income of the debtor, that shows how income, expenditures, and monthly income are
calculated.
(g)
ADD-048
(1) A statement referred to in subsection (f)(4) shall disclose—

(A)
the amount and sources of the income of the debtor;
(B)
the identity of any person responsible with the debtor for the support of any dependent of the
debtor; and
(C)
the identity of any person who contributed, and the amount contributed, to the household in which
the debtor resides.
(2)
The tax returns, amendments, and statement of income and expenditures described in subsections
(e)(2)(A) and (f) shall be available to the United States trustee (or the bankruptcy administrator, if
any), the trustee, and any party in interest for inspection and copying, subject to the requirements of
section 315(c) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
(h) If requested by the United States trustee or by the trustee, the debtor shall provide—
(1)
a document that establishes the identity of the debtor, including a driver’s license, passport, or other
document that contains a photograph of the debtor; or
(2)
such other personal identifying information relating to the debtor that establishes the identity of the
debtor.
(i)
(1)
Subject to paragraphs (2) and (4) and notwithstanding section 707(a), if an individual debtor in a
voluntary case under chapter 7 or 13 fails to file all of the information required under subsection (a)
(1) within 45 days after the date of the filing of the petition, the case shall be automatically
dismissed effective on the 46th day after the date of the filing of the petition.
(2)
Subject to paragraph (4) and with respect to a case described in paragraph (1), any party in interest
may request the court to enter an order dismissing the case. If requested, the court shall enter an
order of dismissal not later than 7 days after such request.
(3)
Subject to paragraph (4) and upon request of the debtor made within 45 days after the date of the
filing of the petition described in paragraph (1), the court may allow the debtor an additional period
of not to exceed 45 days to file the information required under subsection (a)(1) if the court finds
justification for extending the period for the filing.
(4)
Notwithstanding any other provision of this subsection, on the motion of the trustee filed before the
expiration of the applicable period of time specified in paragraph (1), (2), or (3), and after notice and
a hearing, the court may decline to dismiss the case if the court finds that the debtor attempted in
ADD-049
good faith to file all the information required by subsection (a)(1)(B)(iv) and that the best interests
of creditors would be served by administration of the case.
(j)
(1)
Notwithstanding any other provision of this title, if the debtor fails to file a tax return that becomes
due after the commencement of the case or to properly obtain an extension of the due date for filing
such return, the taxing authority may request that the court enter an order converting or dismissing
the case.
(2)
If the debtor does not file the required return or obtain the extension referred to in paragraph (1)
within 90 days after a request is filed by the taxing authority under that paragraph, the court shall
convert or dismiss the case, whichever is in the best interests of creditors and the estate.
(Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2586; Pub. L. 98–353, title III, §§ 305, 452, July 10, 1984, 98
Stat. 352, 375; Pub. L. 99–554, title II, § 283(h), Oct. 27, 1986, 100 Stat. 3117; Pub. L. 109–8, title I,
§ 106(d), title II, § 225(b), title III, §§ 304(1), 305(2), 315(b), 316, title IV, § 446(a), title VI, § 603(c),
title VII, § 720, Apr. 20, 2005, 119 Stat. 38, 66, 78, 80, 89, 92, 118, 123, 133; Pub. L. 111–16, § 2(5),
(6), May 7, 2009, 123 Stat. 1607; Pub. L. 111–327, § 2(a)(16), Dec. 22, 2010, 124 Stat. 3559; Pub. L.
113–295, div. B, title I, § 104(c), Dec. 19, 2014, 128 Stat. 4064.)
Historical and Revision Notes
legislative statements
Section 521 of the House amendment modifies a comparable provision contained in the House bill
and Senate amendment. The Rules of Bankruptcy Procedure should provide where the list of creditors
is to be filed. In addition, the debtor is required to attend the hearing on discharge under section
524(d).
senate report no. 95–989
This section lists three duties of the debtor in a bankruptcy case. The Rules of Bankruptcy Procedure
will specify the means of carrying out these duties. The first duty is to file with the court a list of
creditors and, unless the court orders otherwise, a schedule of assets and liabilities and a statement
of his financial affairs. Second, the debtor is required to cooperate with the trustee as necessary to
enable the trustee to perform the trustee’s duties. Finally, the debtor must surrender to the trustee
all property of the estate, and any recorded information, including books, documents, records, and
papers, relating to property of the estate. This phrase “recorded information, including books, docu
ments, records, and papers,” has been used here and throughout the bill as a more general term, and
includes such other forms of recorded information as data in computer storage or in other
machine readable forms.
The list in this section is not exhaustive of the debtor’s duties. Others are listed elsewhere in pro
posed title 11, such as in section 343, which requires the debtor to submit to examination, or in the
ADD-050
Rules of Bankruptcy Procedure, as continued by § 404(a) of S. 2266, such as the duty to attend any
hearing on discharge, Rule 402(2).
References in Text
Section 3 of the Employee Retirement Income Security Act of 1974, referred to in subsec. (a)(7), is
classified to section 1002 of Title 29, Labor.
Sections 530(b)(1), 529A(b), and 529(b)(1) of the Internal Revenue Code of 1986, referred to in sub
sec. (c), are classified to sections 530(b)(1), 529A(b), and 529(b)(1), respectively, of Title 26, Internal
Revenue Code.
Section 315(c) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, referred to
in subsec. (g)(2), is section 315(c) of Pub. L. 109–8, which is set out as a note under this section.
Amendments
2014—Subsec. (c). Pub. L. 113–295 inserted “, an interest in an account in a qualified ABLE program
(as defined in section 529A(b) of such Code,” after “Internal Revenue Code of 1986)”.
2010—Subsec. (a)(2). Pub. L. 111–327, § 2(a)(16)(A)(iii), in subpar. (C) substituted “except that” for
subpar. (C) designation.
Subsec. (a)(2)(A). Pub. L. 111–327, § 2(a)(16)(A)(i), struck out “the debtor shall” after “period fixes,”
and inserted “and” after semicolon at end.
Subsec. (a)(2)(B). Pub. L. 111–327, § 2(a)(16)(A)(ii), struck out “the debtor shall” after “period fixes,”
and “and” after semicolon at end.
Subsec. (a)(3), (4). Pub. L. 111–327, § 2(a)(16)(B), inserted “is” after “auditor”.
2009—Subsec. (e)(3)(B). Pub. L. 111–16, § 2(5), substituted “7 days” for “5 days”.
Subsec. (i)(2). Pub. L. 111–16, § 2(6), substituted “7 days” for “5 days”.
2005—Pub. L. 109–8, § 106(d)(1), designated existing provisions as subsec. (a).
Subsec. (a). Pub. L. 109–8, § 304(1), added concluding provisions.
Subsec. (a)(1). Pub. L. 109–8, § 315(b)(1), amended par. (1) generally. Prior to amendment, par. (1)
read as follows: “file a list of creditors, and unless the court orders otherwise, a schedule of assets
and liabilities, a schedule of current income and current expenditures, and a statement of the debt
or’s financial affairs;”.
Subsec. (a)(2). Pub. L. 109–8, § 305(2)(A), struck out “consumer” before “debts” in introductory pro
visions.
ADD-051
Subsec. (a)(2)(B). Pub. L. 109–8, § 305(2)(B), substituted “30 days after the first date set for the
meeting of creditors under section 341(a)” for “fortyfive days after the filing of a notice of intent
under this section” and “30day” for “fortyfive day”.
Subsec. (a)(2)(C). Pub. L. 109–8, § 305(2)(C), inserted “, except as provided in section 362(h)”
before semicolon.
Subsec. (a)(3), (4). Pub. L. 109–8, § 603(c), inserted “or an auditor serving under section 586(f) of
title 28” after “serving in the case”.
Subsec. (a)(6). Pub. L. 109–8, § 304(1), added par. (6).
Subsec. (a)(7). Pub. L. 109–8, § 446(a), added par. (7).
Subsec. (b). Pub. L. 109–8, § 106(d)(2), added subsec. (b).
Subsec. (c). Pub. L. 109–8, § 225(b), added subsec. (c).
Subsec. (d). Pub. L. 109–8, § 305(2)(D), added subsec. (d).
Subsecs. (e) to (h). Pub. L. 109–8, § 315(b)(2), added subsecs. (e) to (h).
Subsec. (i). Pub. L. 109–8, § 316, added subsec. (i).
Subsec. (j). Pub. L. 109–8, § 720, added subsec. (j).
1986—Par. (4). Pub. L. 99–554 inserted “, whether or not immunity is granted under section 344 of
this title” after second reference to “estate”.
1984—Par. (1). Pub. L. 98–353, § 305(2), inserted “a schedule of current income and current expendi
tures,” after “liabilities,”.
Pars. (2) to (5). Pub. L. 98–353, § 305(1), (3), added par. (2), redesignated former pars. (2) to (4) as
(3) to (5), respectively.
Pub. L. 98–353, § 452, which directed the insertion of “, whether or not immunity is granted under
section 344 of this title” after second reference to “estate” in par. (3) as redesignated above, could
not be executed because such reference appeared in par. (4) rather than in par. (3).
Effective Date of 2014 Amendment
Pub. L. 113–295, div. B, title I, § 104(d), Dec. 19, 2014, 128 Stat. 4064, provided that:
“The amendments made by this section [amending this section and sections 541 and 707 of this title]
shall apply with respect to cases commenced under title 11, United States Code, on or after the date
of the enactment of this Act [Dec. 19, 2014].”
ADD-052
Amendment by Pub. L. 111–16 effective Dec. 1, 2009, see section 7 of Pub. L. 111–16, set out as a note
under section 109 of this title.
Pub. L. 109–8, title VI, § 603(e), Apr. 20, 2005, 119 Stat. 123, provided that:
“The amendments made by this section [amending this section, section 727 of this title and section
586 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as a note under
section 586 of Title 28] shall take effect 18 months after the date of enactment of this Act [Apr. 20,
2005].”
Amendment by sections 106(d), 225(b), 304(1), 305(2), 315(b), 316, 446(a), and 720 of Pub. L. 109–8
effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under
this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8,
set out as a note under section 101 of this title.
Amendment by Pub. L. 99–554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99–
554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure.
Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see
section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title.
Confidentiality of Tax Information
Pub. L. 109–8, title III, § 315(c), Apr. 20, 2005, 119 Stat. 91, provided that:
“(1)
Not later than 180 days after the date of the enactment of this Act [Apr. 20, 2005], the Director of the
Administrative Office of the United States Courts shall establish procedures for safeguarding the
confidentiality of any tax information required to be provided under this section.
“(2)
The procedures under paragraph (1) shall include restrictions on creditor access to tax information
that is required to be provided under this section.
“(3) Not later than 540 days after the date of enactment of this Act, the Director of the
Administrative Office of the United States Courts shall prepare and submit to the President pro
tempore of the Senate and the Speaker of the House of Representatives a report that—
“(A)
assesses the effectiveness of the procedures established under paragraph (1); and
“(B) if appropriate, includes proposed legislation to—
ADD-053
11 U.S. Code § 521 - Debtor’s duties | U.S. Code | US Law | LII / Legal Information In… Page 10 of 10
“(i)
further protect the confidentiality of tax information; and
“(ii)
provide penalties for the improper use by any person of the tax information required to be provided
under this section.”
Providing Requested Tax Documents to the Court
Pub. L. 109–8, title XII, § 1228, Apr. 20, 2005, 119 Stat. 200, provided that:
“(a) Chapter 7 Cases.—

The court shall not grant a discharge in the case of an individual who is a debtor in a case under
chapter 7 of title 11, United States Code, unless requested tax documents have been provided to the
court.
“(b) Chapter 11 and Chapter 13 Cases.—
The court shall not confirm a plan of reorganization in the case of an individual under chapter 11 or
13 of title 11, United States Code, unless requested tax documents have been filed with the court.
“(c) Document Retention.—
The court shall destroy documents submitted in support of a bankruptcy claim not sooner than 3
years after the date of the conclusion of a case filed by an individual under chapter 7, 11, or 13 of title
11, United States Code. In the event of a pending audit or enforcement action, the court may extend
the time for destruction of such requested tax documents.”
[1] So in original. A closing parenthesis probably should precede the comma.
ADD-054
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Ocwen Lo:111 Servicing, LLC
WWW.OCWEN .COM
/-lclpi11g l/01111:01r11crs is W/1nt We DoJTM
1661 Wonbingloo Road, Ste lOO
w�1 Palm Beach. FL 33409
Toll Free: (800) 746-2936
kL11lI
10/14/2014
VJA First Class
V I A 01rtifled Mnil (return n c e i p t reque,;led)
Certified Number:
Anthony Gi,m11asc11
9 Joseph St
l"Iedford, l vl A 0215 .5
Property Address: 9 Joseph St,

Medford. M A 02155
AVISO Th1IPORTANTE PARA LAS PERSONAS QUE HABLAN ESP NOL:

Esta notificacion es de surua importnncia. pues afecta su derecho a continuar viYiendo en su casa. Si no entiende el comenido d,e -esta
carta, obte.nga una traduccion immediawente.
Dear Anthony Giannasca
We haYe not recei,·ed your mortgage payments for U1e months of09/01/14 through 1 0 / 0 l / l 4 . This means your account is now in
default, and i f you do not make these payments or rench another resolution with us. we m.iy soon refer your loan 10 foreclosure, to
commence the foreclosure process as required by your state law.
l f y o u have already mailed these payments, please accept our thanks. Also, i f you are already working with Ocwen Loan Servicing,
L L C (' Oc:wen") to avoid foreclosure. this letter does not apply to you. However, you may find some o f the information on arailable
programs listed below to be useful.
l f y o u are already working with the Loss Mitigation department on a special forbearance or other foreclosure prevention alternatin,
this letter does not apply to you.
Howe\·er, you may want to take advantage o f the Homeownersltip Counseliug: information contained within th.is letter.
We are here to help. I f you are experiencing financial difficulties please contact us inunediately l-800-7 6-2936, londay
to Friday 8:00 am to 9:00 pm E T Saturday 8:00 am to 5:00 pm ET, and Sunday, 9:00 am to 9:00 pm ET.
I f you need help, the following options may be available:

Y o u may choose to apply f o r a new mort!?age and pay o f f your existing loan. i f you can obtain
Refinance your loan:
favorable terms that would make your ctirrent payment more affordable.
M o d i f y you r loan te1ms wit h us: We may be able to modify your loaa. You may be eligible for a loan modification 1tnder the
( H A M P ) o r another available modification program. subject ro program
Home Affordable Modification Program
prog.rnrns.
requirements. Contact us to recei\'e application materials for any o f our riYailable loan modification
N M L S # 1852 OPTCRM
111i s commrmicatio,r i s from a deb/ collector af1e111pri11g ro co//cCJ a debt; n11y i11for111ario11 o�rai11ed u-i'.I b� 11S�dfor rluu p 11'"'!' ose.
10 you
However, i f 11,e d e bt i s ; 11 active ba 11k r n p 1C)' o r !ias been rlisc�,argcd 1/Jro11gh ba11k111ptcy. tl11S co111t11111'.1car10:1 rs purely pwl'ldcd
only ll'itli ,-cgard 011r secured lren 011 rltc (lbo,·c rcfcrc11ccd propcrry. Jr 1 s 11ot 111rrndccf as m1 atr<'mpr ro
f o r i n f om rati o r i a l purposes 10
collect a debt from )'OU pcrso11all�•-
Pagelof5
L ADD-057 Scanned by CamScanner

10·
.................. ,...
0 CW EN
Ocwen Lo:111 Servicing, LLC
WWW.OCWEN .COM
/-lclpi11g l/01111:01r11crs is W/1nt We DoJTM
1661 Wonbingloo Road, Ste lOO
w�1 Palm Beach. FL 33409
Toll Free: (800) 746-2936
10/14/2014
Loan 1. . .
11111
V I A 01rtifled Mnil (return nceipr reque,;led)
Certified Number:
Anthony Gi,m11asc11
9 Joseph St
l"Iedford, l vl A 0215 .5
Property Address: 9 Joseph St,

Medford. M A 02155
AVISO Th1IPORTANTE PARA LAS PERSONAS QUE HABLAN ESP NOL:

Esta notificacion es de surua importnncia. pues afecta su derecho a continuar viYiendo en su casa. Si no entiende el comenido d,e -esta
carta, obte.nga una traduccion immediawente.
Dear Anthony Giannasca
We haYe not recei,·ed your mortgage payments for U1e months of09/01/14 through 1 0 / 0 l / l 4 . This means your account is now in
default, and i f you do not make these payments or rench another resolution with us. we m.iy soon refer your loan 10 foreclosure, to
commence the foreclosure process as required by your state law.
l f y o u have already mailed these payments, please accept our thanks. Also, i f you are already working with Ocwen Loan Servicing,
L L C (' Oc:wen") to avoid foreclosure. this letter does not apply to you. However, you may find some o f the information on arailable
programs listed below to be useful.
l f y o u are already working with the Loss Mitigation department on a special forbearance or other foreclosure prevention alternatin,
this letter does not apply to you.
Howe\·er, you may want to take advantage o f the Homeownersltip Counseliug: information contained within th.is letter.
We are here to help. I f you are experiencing financial difficulties please contact us inunediately l-800-7 6-2936, londay
to Friday 8:00 am to 9:00 pm E T Saturday 8:00 am to 5:00 pm ET, and Sunday, 9:00 am to 9:00 pm ET.
I f you need help, the following options may be available:

Y o u may choose to apply f o r a new mort!?age and pay o f f your existing loan. i f you can obtain
Refinance your loan:
favorable terms that would make your ctirrent payment more affordable.
M o d i f y you r loan te1ms wit h us: We may be able to modify your loaa. You may be eligible for a loan modification 1tnder the
( H A M P ) o r another available modification program. subject ro program
Home Affordable Modification Program
prog.rnrns.
requirements. Contact us to recei\'e application materials for any o f our riYailable loan modification
N M L S # 1852 OPTCRM
111is commrmicatio,r i s from a deb/ collector a11e111pri11g ro collect a debt; n11y i11for111ario11 o�rai11ed u-i'.I b� 11S�dfor rluu p 11'"'!' ose.
purely pwl'ldcd 10 you
However, i f 11,e debt i s ; 11 acti v e ba11k r n p 1C)' o r !ias been rlisc�,argcd 1/Jro11gh ba11k111prcy. tl11S co111t11111'.1car10:1 rs
only ll'itli regard 011r secured lren 011 rltc (lbo,·c rcfcrc11ccd propcrry. Jr 1 s 11ot 1111rndccf as m1 attm1pt to
f o r infomratiorial purposes 10
collect a debt from )'OU pcrso11all�•-
Pagelof5
L ADD-058 Scanned by CamScanner

ro· · · ·. .·.·."l '
Ocwen Loan Servicing, lLC
Mortgage Account Statement
t
I 1 , PO Bo)( 2473B
i I
t;
WeslPalm Beach, FL 33416-4738
1I
1 ••••• ,, ...... , ....... :
Property Address 9 Joseph St
O C W EN www.ocwencuslomers.com Medford, MA 02155
Statement Date 07/18/14

~1&' 14 4 o.a ~ :i otlOM 11. m140r 19 JGr.IWMlot:l"l'SlU-t 1 11J 001ii1.r1.NW1CIJCl!i·
fl I•111111' •11«11111•1 11111, 1, 1I Ill Ih 11l11111, 11111111' n•' ••lh

t\n,.;1 wt
Account Number
Payment Due Date
Amount Due
Mlfo\l ■
$2,309.09
ANTHONY GIANNASCA If paymenlif receiver/ ef/er 0!111711'1, 6 $4 Q. 96 litte fee viii/ b9 charged.
9JOSEPHST
MEDFORD MA 02155-6630 t,
�
Customer Care 800-746-2936
Insurance 866-825-9265
> • · - •c, ,-.. , • .,~,.. _ } e• · o , •~- . /,.

Principal Balance $396,436.05 Principal $390.93
EscrowBalanca : . ·.- - - · •.- ~ - - · - - - �.•.$57].6'3• Interest -
· · • • . a ·· . ..$1,174:40
Maturity Dale December 1, 2035 Escrow $743.76
Interest Rate (until August 1, 2014) 3.55486%
Prepayment Penalty No
Total Regular Payment $2,309.09
Total Amount Due $2,309.09
• This Is your Principal Balance only, not th11 amount fequlred to

pay the loan In full.
How Payments & Charges were A DD lled

Date Date Description Transaclion Principal Interest Escrow Optional Late Feesf Unapplied
ADD lied Received Total Products Char ges Other Funds
07/16I 14 07/16114 Forbearance I$2. 309.09 $2,309.09
Payment
07/16/14 07/16/14 Payment $1,460.35 $636.04 -2.096.39
07/17/14 07117/14 Suspense Transfer $-425.40 25.40
07/17/14 07/17!14 Escrow Accounli $425.40 $4i5.40
Adjustment
07/18/14 07/18!14 Tax Disbursement S-801.72 $-801.72
MEDFORD CITY•
·-----.-�.-- ------ ------- ------·-----·- - -~------ ---- -·--- -- -- -

p ll°P i..st 51,atcmen,f
Principal $.00 $.00
lnteres1 $1,460.35 $2,920.70
Escrow (Taxes & Insurance) $636.04 $1,272.08
Fees/Other Charges $.00 $.00
Unappllecl Funds*• $212.70- $.00
Total $1,883,69 $4,192.78
•-.�.- .: t. � . ili,I:· � = = :
Information. Research Department PO Box
You must use thls address for all qualified wrilten requesls,notlces of error, and/or requests for
24736, Wes! Palm Beach, FL 33416-4736.
detail regarding !he reason for this
Please note that your monthly payment amount has changed to $2,309.09 effeclive 09/01/2014. Further
<:hange will be Included In a separate letter. · ·
set up an appointment with Danyell Taylor-Williams,
\f you have any questions about your loan, please call 1-800-746-2936 (ext:) and ask 10
your relationship manager, or schedule en appofintment al Ocwencuslomers.com.
Sae reverse side for Important Information and state specific disclosures.
--------••---- -•--•----a-99•---------- - --------- -•M----- ----••------e•---------------•--•--•-•••--••----•--------••
\""7-S:I:___. _ _ _ --·--..······-·-----.... - - - - - - - - - - - - - - - - - - - - - - - - - '
ADD-059 Scaru1ed by CamScanner

WWW.OCWEN.COM
Seplem\.ier 22, 2014

I' A S T n m ; c;;oNTi\CT NOTICF,
•M 1111••11•111111•11•I 111, 1111,11, ,, I •11•lul I I 11'I 1111I h 1 1

1
11
ANTHONY GIANNASCA
9 Joseph St
MEOFORD MA O21S5-6630
Lm111Nm111Jer:--·- ·
Property Address: 9 Joseph SI, Medford, M A 02155-0000
Dear Borrower(s):
A vrso I M P O R T A N T E P A R A P E R S O N A S D E H A B L A IIISPANA;
Esta nolificncion es de suma irnportancia. Puede afectar su derecho n conlinuar viviendo en su cosa. Si no entiencle su
contenido, obtenga um1 traduccion inmedialamenle o contactenos ya que lenemos represenlantes que hablan espanol y eslan
disponibles para asistir.
A l Ocwen, we strive lo provide service that will exceed your expecL.alions. Having complete and occurate information is the
first step in ensuring you receive this service. We are here to build a mutually beneficial relationship, rectify any problems,
resolve any issues, and 11ssist you with your needs. Therefore, we are sending you this leller lo inform you that our records
indicate that your mor1gage loan payment due on 09/01/2014 has nol yel been received, and, unfortunately, your payment is
now past due.
A late charge has been assessed on your account, which will reflect in the C U R R E N T A M O U N T D U E as of09/22/14. You
are required to pay this lale charge, unless you can docwent Iha! the payment was made in full and on lime.
ITEMIZATION OF CURRENT AMOUNT DUE
Principal and Interesl Payment Sl,565.33
f. ..·.
, ·
Escrow Payment Sl,117.59

Escrow Advances S0.00
-€uneot Late Charges - - - - · - · ··------ - · - S0.00
CURRENT AMOUNT DUE $2,682.92
It is very important Iha! you pay the C U R R E N T A M O U N T D U E lmtnediutely as this delinquency may result in adverse credit
reporting and/or a formal demand notice for all amounts due on yot r loan, Payments m11st be made by Money Gram, Check or
Mobey Order and made payable to Ocwen Loan Servicing, L L C . Please send all payments through one of the methods below:
rm
JE006
, - · This commun/callon Is from " debt collector attempting to collect £1debt· £111)' i1iformaUon obtained wi!J be used!or 1'.
1a t
•;;,·.;:; fUrpose. However, i1 f the d,ebt 1·s in acflve ,

• bankruptcy or 11as been discharged' I ' mnm1111/caho11 ,s no/
Jhro11gh ba11t1111plC)', I us c
,
_
·" intended as and does 1101 comtilute an at/empt to .col/eel a debt. NMLS #: 1852
'; _._ ,
ADD-060 Scanned by CamScanner

f' .... -·--··--- ---- ---- -.
Property Address
We· _may be able to help you avoib foreclosure 9 JOSEPH ST
.thr_ough the Home Affordable Foreclosure MEDFORD, MA02155
_A_lternatives (HAFA) P ogram.

I
i You must respond by:
.I
I
.rt::: October 23, 2013
- !:·. t;..
l 1.800.216.1147
I -, -1 - . .•
ANTHONY GIANNASCA
9 JOSEPH STREET
MEDFORD, MA 02155-6630
October 9, 2013
Dear ANTHONY GIANNASCA,
If you are looking for help selling your home and avoiding foreclosure, you may qualify for the federal government's Home Affordable
Foreclosure Alternatl11es (HAFA) Program. As your mortgage servicer, we are offering you the opportunity to learn more about HAFA's short
sale option.
A short sale allows borrowers who can no longer afford their mortgage payments to sell their home for a price lower than the amount owed
on the mortgage. This process can help a borrower sell the home even If property values have significantly decreased. A HAFA short sale
makes the process even easier than a widitional short sale by outlining exactry Whilt you need to do to sell your home. If you qualify, we'll
send you a shortsale packet listing the approved s;iles price for your home including allowed amounts for broker commissions and closing
costs. This allow, you to quickly list your property with a local reJI estate broker because you'll know upfront how to price the home.
• • -
- . . • • •
- • - . . : : -. -. . : _ . .- • - -:...; ... - - : " . " : .;._ _ _ . . . , , . , . _ - - 0 - - - - - - H • •
• -
once the sale closes, you wlll no longer be responsible for your mortgage debt. Plus, if your property Is occupied as a principal residence by
(i) you or {II) a tenant (or legal dependent, parent or grandparent who is living in the Jl(operty rent free) ("Tenant'') who will be required to
vacate the property as a condition of the sale, you or your Tenant may receive $3,000 to help pay moving expenses. The incentive will be
paid to the occupant by the settlement agent as part of the closing, In the event there Is any money left over from the sale after paying the
entire amount you owe on the mortgage plus the approved sale -est$, you or your Tenant will not be eligible to receive the $3,000
relocation assistance.
This foreclosure alternative offer is sent to you due to the fact that your loan did not qualify for the f-lome Affordabre Modlflcation Program.
If you think a short sale might be the right option for you, please sign and return the e11closed Agreement no later th;,n 10/23/2013.
Once your Agreement Is received we will review your loan within 30 days to determine If you qualify, Should you have any que3tions about
this program 0 , the status of your Agreement, please call us toll nee at 1.800.216.1147.
Sincerely,
IndyMac Mortgage Services
Need help? Call us toll free,

1.800.216.1147
Or visit our website
www.indymacmortgageservices.com
IndyMac Mortgage Services

a division of Onei,yest Bank FSB
j-jAFA ITAi MAT Instance Number: 21 11. 45Q
ADD-061 Scanned by CamScanner

Case 11-19499 Doc 108 Filed 02/27/13 Entered 02/27/13 12:19:05 Desc Main
B8 (Official Form 8) (12/08) Document Page 1 of 3
United States Bankruptcy Court
District of Massachusetts
IN RE: Case No. 11-19499

Giannasca, Anthony U Chapter 7
Debtor(s)
CHAPTER 7 INDIVIDUAL DEBTOR'S STATEMENT OF INTENTION

PART A – Debts secured by property of the estate. (Part A must be fully completed for EACH debt which is secured by property of the
estate. Attach additional pages if necessary.)
Property No. 1
Creditor’s Name: Describe Property Securing Debt:
Beacon Electrical Distributors, Inc. 16-18 Joseph Street, Medford, MA 02155
Property will be (check one):
□Surrendered ü
□
Retained
If retaining the property, I intend to (check at least one):
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□ (for example, avoid lien using 11 U.S.C. § 522(f)).
Property is (check one):
© 1993-2011 EZ-Filing, Inc. [1-800-998-2424] - Forms Software Only
□Claimed as exempt üNot claimed as exempt

□
Property No. 2 (if necessary)
Beacon Electrical Distributors, Inc. Principal residence located at 9 Joseph Street, Medford, MA 0215
□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
PART B – Personal property subject to unexpired leases. (All three columns of Part B must be completed for each unexpired lease. Attach
additional pages if necessary.)
Property No. 1
Lessor’s Name: Describe Leased Property: Lease will be assumed pursuant to
11 U.S.C. § 365(p)(2):
Yes No
Property No. 2 (if necessary)

11 U.S.C. § 365(p)(2):
Yes No
2 continuation sheets attached (if any)
I declare under penalty of perjury that the above indicates my intention as to any property of my estate securing a debt and/or
personal property subject to an unexpired lease.
Date: February 27, 2013 /s/ Anthony U Giannasca

Signature of Debtor
Signature of Joint Debtor
ADD-062
(Continuation Sheet)
PART A – Continuation
Property No. 3
CENTURY BANK AND TRUST COMPANY 16-18 Joseph Street, Medford, MA 02155
□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
Property No. 4
CENTURY BANK AND TRUST COMPANY Principal residence located at 9 Joseph Street, Medford, MA 0215

□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
Property No. 5
Onewest Bank, FSB Principal residence located at 9 Joseph Street, Medford, MA 0215
□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
PART B – Continuation
Property No.
11 U.S.C. § 365(p)(2):
Yes No
Property No.
11 U.S.C. § 365(p)(2):
Yes No
Continuation sheet 1 of 2
ADD-063
(Continuation Sheet)
PART A – Continuation
Property No. 6
Onewest Bank, FSB 16-18 Joseph Street, Medford, MA 02155
□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
Property No. 7
Real Time Resolutions Inc. 16-18 Joseph Street, Medford, MA 02155

□Surrendered ü
□
Retained
□ Reaffirm
Redeem the property
ü
□ Other. Explain
the debt
□
Property No.

□Surrendered
□
Retained
□ Reaffirm
Redeem the property
□ Other. Explain
the debt
□Claimed as exempt
□ Not claimed as exempt
PART B – Continuation
Property No.
11 U.S.C. § 365(p)(2):
Yes No
Property No.
11 U.S.C. § 365(p)(2):
Yes No
Continuation sheet 2 of 2
ADD-064
Document Page 1 of 1
UNITED STATES BANKRUPTCY COURT

FOR THE
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
In re:
Chapter 11
Case No. 11-19499-FJB
ANTHONY U. GIANNASCA,
Debtor
DEBTOR’S NOTICE OF INTENT TO SURRENDER OF PROPERTY LOCATED AT 9

JOSEPH STREET, MEDFORD, MASSACHUSETTS
NOW COMES the debtor in the above-captioned proceeding (the “Debtor”) and hereby
provides notice of the Debtor’s intent to the surrender the property located at 9 Joseph Street,
Medford Massachusetts (the “Property”). As reasons therefore, the Debtor states as follows:
1. The Debtor owns the Property and occupies it has a principal residence.
2. The Debtor cannot afford to retain the Property.
3. The Property has no equity.
4. The Debtor intends to surrender it to the mortgagee One West Bank, FSB.
Respectfully Submitted
Debtor, by counsel,
/s/ Michael Van Dam

Michael Van Dam, Esq.
Van Dam & Traini, LLP
60 William Street
Wellesley, MA 02481
(617) 969-2900
(BBO # 653979)
Dated: January 7, 2013
ADD-065
UNITED STATES BANKRUPTCY COURT

FOR THE
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
In re: Chapter 11
ANTHONY U. GIANNASCA, Case No. 11-19499-FJB
Debtor
DISCLOSURE STATEMENT REGARDING DEBTOR’S CHAPTER 11 PLAN OF

REORGANIZATION
I. INTRODUCTION
A. General
Pursuant to Fed. R. Bankr. P. 3016, Anthony Giannasca (the “Debtor”) submits this
Disclosure Statement (the “Disclosure Statement”) in conjunction with the Debtor’s Chapter 11
Plan of Reorganization (the “Plan”). The Plan will be referred to collectively in this Disclosure
Statement and should be read in conjunction with each other and will collectively be referred to
as the “Plan and Disclosure Statement” of the “Debtor”. Portions of the Plan and Disclosure
Statement which refer solely to the Plan of Reorganization will be referred to as the “Plan”. The
Disclosure Statement contains a description of the Debtor and his expectations for future
operations and earnings. It also discusses the valuation of the Debtor’s assets and alternatives to
the Plan. Also included is a detailed description of the treatment and payment provisions for all
creditors of the Debtor.
On October 5, 2011, the Debtor filed a petition under Chapter 13 of the United States
Bankruptcy Code in the United States Bankruptcy Court for the District of Massachusetts. On
November 29, 2011, this Court allowed the Debtor’s motion for conversion to relief under
Chapter 11.
During the case, the Debtor has maintained his business as a Debtor-in-Possession under
Sections 1107 and 1108 of the Code.
Pursuant to Section 1125 of the Code, this Plan and Disclosure Statement is being sent to
all holders of claims against the Debtor so that the Debtor may solicit votes for the Plan and
creditors may be provided with information concerning the Plan, the Debtor, and the prospect of
future operations. In order for the Court to approve a disclosure statement, it must contain
“adequate information”, which means “information of a kind and in sufficient detail, as far as is
reasonably practicable in light of the nature and history of the debtor and the condition of the
debtor’s books and records, that would enable a hypothetical investor typical of holders of claims
or interests of the relevant class to make an informed judgment about the plan.”
ADD-066
B. BACKGROUND
The Debtor owns two (2) properties in Medford, Massachusetts. Further, the Debtor is a
licensed electrician.
As to the real property, the Debtor’s strategy was to acquire properties that will
appreciate in value and provide positive cash flow. This strategy was working for the few years
leading up to this filing. However, the properties needed repair and rental income declined. As a
result, the Debtor became delinquent on the mortgages. Further, the Debtor owes various
unsecured creditors.
Given the continued real estate market improvement, the Debtor seeks to reorganize the
properties in order to address the financial difficulties incident to the current economic situation.
From future rental income revenue, the Debtor proposes to pay his administrative creditors,
priority tax claims, and secured creditors to the extent of the value of the collateral securing their
claims as allowed under the Code.
II. TREATMENT OF LIABILITIES OF THE DEBTOR
The Plan divides creditors into classes and provides for the settlement and satisfaction of
the various claims of creditors in each class. An analysis of the claims follows:
A. Payment of Administrative Claims
Administrative Claims will be paid in cash, in full, on the later of the confirmation of the
Plan (the “Effective Date” or “Confirmation”) or the date they are allowed by an Order of the
Bankruptcy Court. Ordinary trade and consumer debt incurred by the Debtor in the course of the
Chapter 11 case will be paid on an ongoing basis in accordance with the ordinary business
practices and terms between the Debtor and his trade and consumer creditors. The payments
contemplated by the Plan will be conclusively deemed to constitute full satisfaction of Allowed
Administrative Claims.
Administrative Claims include post-petition fees and expenses allowed to professionals

employed upon Court authority to render services to the Debtor during the course of the Chapter
11 case.
In this case, the sole legal professional employed by the Debtor is Michael Van Dam,
Van Dam Law LLP, as counsel to the Debtor. In order to be compensated, all professionals will
have to apply to the Court for compensation and they will be paid that amount which the Court
allows. It is estimated that administrative fees in the Debtor’s case may be approximately
$20,000.00 but that is only an estimate by the Debtor and actual fees may be higher than as
represented. All fees are subject to approval of an Application for Compensation.
2
ADD-067
B. Payment of Tax Claims
Priority Tax Claims: The Allowed Amount of any unsecured claim of a governmental unit
entitled to priority under §507(a)(8) are as follows:
1. Internal Revenue Service $23,765.57 (POC # 7)

Internal Revenue Service $3,925 (FY 2011)
2. Mass. Dept. of Revenue: $9,903.92 (POC # 9)
Mass. Dept. of Revenue $1,725 (FY 2011)
TOTAL $39,319.49
The Priority Claims shall be paid as follows:
 At Effective Date: Internal Revenue Service $13,845.29

Mass. Dept. of Revenue: $5,814.46
$19,299.75
 Balance:
Internal Revenue Service: The Debtor shall pay $338.83 per month (inclusive of 4%
interest) for forty-four (44) months from the Effective Date.
Mass. Department of Revenue: The Debtor shall pay $142.29 per month (inclusive of 4%
interest) for forty-four (44) months from the Effective Date.
Total Monthly payment for forty-four (44) months: $481.12
C. Designation and Payment of Classes of Claims
9 Joseph Street, Medford, Massachusetts (Residence)
Class 1: Claims of One West Bank, FSB. Class 1 consists of the claim of One West
Bank, FSB (“One West”). The claim is secured by a first mortgage on 9 Joseph Street, Medford,
Massachusetts. The property has a value of $225,000. See Exhibit A. At the Petition Date, One
West is owed $402,039.74 (POC #2).
The Debtor intends to surrender this property from the bankruptcy estate.
Notwithstanding, the Debtor intends to seek a loan modification from One West. One West may
be entitled to file a deficiency claim which would be treated under Class 3
Class 1 is impaired.
16-18 Joseph Street, Medford, Massachusetts
3
ADD-068
Class 2: Claims of One West Bank, FSB. Class 2 consists of the claim of One West
Bank, FSB (“OW”). The claim is secured by a first mortgage 16-18 Joseph Street, Medford
Massachusetts. See Exhibit A. At the Petition Date, OW is owed $615,346.91 (POC# 3). The
property has a value of $407,000.
The claim of OW shall be modified as follows: (a) Payment of the secured portion of
Class 2 shall be in accordance with existing promissory note from the Debtor to OW, modified to
extend the maturity date of the loan to 30 years from the Effective Date, fix the principal loan
amount to $407,000, to fix the interest rate to 5.0% per annum fixed (not variable) and to fix the
monthly principal and interest payment under the note to $2,184.86. This monthly payment shall
be paid directly to OW. Further, on an ongoing basis, the real estate taxes and insurance shall be
escrowed by OW.
The Class 2 Claim holder shall retain its existing lien to secure the secured portion of its
Claim. Upon the Effective Date, the mortgage of OW shall be deemed modified as set forth
herein and the Debtor may record the Confirmation Order to reflect said modification. The
modification shall be in force and the mortgage shall be deemed in good standing upon
Confirmation as if there has been no default. OW shall commence sending monthly statements
to the Debtor reflecting the modified payments upon the Effective Date. The unsecured portion
of the claim of $208,346.91 shall be treated in accordance with the unsecured creditors,
including voting rights, as set forth in Class 3 below.
Class 3: Unsecured Claims. Class 3 consists of (i) wholly unsecured claims of:
Beacon Electrical $7,456.11

Century Bank and Trust $58,546.81
Real Time Resolutions, Inc. $144,617.50 (POC # 6);
(ii) Allowed Unsecured Claims, as scheduled or as filed and allowed by the Court,
against the Debtor of whatever kind or nature which are not included in any other Class hereof
totaling $138,753.06; (iii) undersecured claims of secured creditors set forth above in the amount
of $208,346.91; and (iv) claims based on the rejection of the executory contracts or unexpired
leases and claims for damages to person or property based on strict liability, negligence, or
breach of a warranty, express or implied, relative to services rendered or products delivered by
the Debtor. These amounts total $557,720 and holders of Class claims will receive on account of
the Allowed amount of their claims a pro rata share of $5,000.00 on the Effective Date and
$5,000.00 on each of the next four (4) anniversary dates of the Effective Date. In sum, holders
of Class 3 claims will receive in five (5) payments over the five (5) years from the Effective Date
a pro rata share of a pool of cash totaling $25,000 or 4.5%.
Class 4: The interests of the Debtor in property of the estate. The property of the estate
shall vest in the Debtor upon confirmation.
4
ADD-069
Class 4 is unimpaired.
D. Treatment of Executory Contracts and Unexpired Leases.
The Debtor will be conclusively deemed to have rejected all executory contracts and/or
unexpired leases not otherwise expressly assumed by motion or as otherwise stated herein.
The Debtor may file a motion or amend this Plan to reject any contracts and leases found
to be executory prior to or after Confirmation as provided under the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 (the Bankruptcy Code). If any party to an
executory contact or unexpired lease which is deemed assumed pursuant to the Plan objects to
such assumption, the Bankruptcy Court may conduct a hearing on such objections on any date
which is either mutually agreeable to the parties or fixed by the Bankruptcy Court. All payments
to cure defaults that may be required by Section 365(b)(1) of the Bankruptcy Code will be made
by the Debtor. In the event of a dispute regarding the amount of any such payments or the ability
of the Debtor to provide for adequate assurance of future performance, the Debtor will make any
payments required by Section 365(b)(1) of the Bankruptcy Code after the entry of a Final Order
resolving such dispute.
All proofs of Claim with respect to Claims arising from the rejection of executory
contracts or unexpired leases must be filed with the Bankruptcy Court within thirty (30) days
from and after the date of entry of an order of the Bankruptcy Court approving such rejection or
such Claims will be barred. A creditor whose claims arise from rejection of executory contracts
and unexpired leases will be treated as an unsecured creditor.
E. Payment of the Creditor Distribution Fund – Disposable Income from All Sources
Prior to the commencement of the hearing(s) on Plan confirmation, the Disbursing Agent
(as defined under the Chapter 11 Plan) will receive from the Debtor into the Creditor
Distribution Fund an amount equal to fund payments to be made on the Effective Date stated
below.
The source of payment in order to have cash on hand at the Effective Date shall be from
cash accumulated by the Debtor during the pendency of this Chapter 11 case. These funds will
be disbursed on the Effective Date by the Disbursing Agent as follows:
Administrative Fees
(net of pre-petition retainers): $10,000.00
Priority Claims $19,299.75
Class 3 $5,000.00
TOTAL $34,299.75
5
ADD-070
All quarterly disbursement fees, arising under 23 U.S.C. §1930 (“Quarterly Fees”),
accrued prior to the confirmation shall be paid in full, on or before the date of confirmation of
the Debtor’s Plan, by the Debtor. All Quarterly Fees which accrue post-confirmation shall be
paid in full on a timely basis by the Debtor prior to the Debtor’s case being closed, converted, or
dismissed.
F. Ability of Debtor To Make Payments Called For Under the Plan
The Debtor will make the Effective Date payments from cash he has accumulated prior to
the Effective Date.
The Debtor avers that the financial performance of the estate during the post-petition
bankruptcy period is characteristic to the performance during the term of the Plan 1 . See Exhibit
B for post petition analysis along with five (5) year projections.
Along with the electrician trade, the Debtor just obtained the necessary state licenses to
professionally install HVAC. As a result, the Debtor projects an increase in business income.
Provision for Disputed Claims
The Debtor may object to the allowance of any Claims within 90 days of the Effective
Date by filing an objection with the Bankruptcy Court and serving a copy thereof on the holder
of the Claim in which event the Claim objected to will be treated as a Disputed Claim under the
Plan. If and when a Disputed Claim is finally resolved by allowance of the Claim in whole or in
part, the Debtor will make any payments in respect of such Allowance Claim in accordance with
the Plan.
III. VOTING AND CONFIRMATION
A. General Requirements
In order to confirm a Plan, the Code requires that the Bankruptcy Court make a series of
determinations concerning the Plan, including that: (1) the Plan has classified Claims in a
permissible manner; (2) the Plan complies with the technical requirements of the Chapter 11
Code; (3) the proponent of the Plan has proposed the Plan in good faith; (4) the disclosures
concerning the Plan as required by the Chapter 11 Code have been adequate and have included
information concerning all payments made or promised by the Debtor in connection with the
Plan; (5) the Plan has been accepted by the requisite vote of creditors, except, as explained
below, to the extent that “cram-down” is available under Section 1129(b) of the Code; (6) the
Plan is “feasible” (that is, there is a reasonable prospect that the Debtor will be able to perform
its obligations under the Plan and continue to operate its business without further financial
reorganization, except if the Plan contemplates a liquidation of the Debtor’s assets); (7) the Plan
is in the “best interests” of all creditors (that is, the creditors will receive at least as much under
the Plan as they would receive in a Chapter 7 liquidation). To confirm the Plan, the Bankruptcy
Court must find that all of these conditions are met. Thus, even if the creditors of the Debtor
accept the Plan by the requisite number of votes, the Bankruptcy Court must make independent
1
The post petition performance does not incorporate the monthly mortgage payment expense.
6
ADD-071
findings respecting the Plan’s feasibility and whether it is in the best interests of the Debtor’s
creditors before it may confirm the Plan. The Debtor believes that the Plan fulfills all of the
statutory conditions of Section 1129 of the Code. The statutory conditions to confirmation are
more fully discussed immediately below.
B. Classification of Claims and Interests
The Code requires that a Plan of Reorganization place each creditor’s claim in a class
with other claims which are “substantially similar.” The Debtor believes that the Plan meets the
classification requirements of the Code.
C. Voting
As a condition to Confirmation, the Code requires that each impaired class of claims
accept the Plan. The Code defines acceptance of a Plan by a class of claims as acceptance by
holders of two-thirds in dollar amount and a majority in number of claims of that class, but for
that purpose the only ballots counted are those of the creditors who are allowed to vote and who
actually vote to accept or to reject the Plan. Persons who are considered “insiders,” as that term
is defined in Section 101 of the Code, may vote, but its vote is not counted in determining
acceptance of the Plan.
Classes of claims that are not “impaired” under the Plan are deemed to have accepted the
Plan. Acceptances of the Plan are being solicited only from those persons who hold Allowed
Secured and Unsecured Claims that are impaired under the Plan. An Allowed Claim is
“impaired” if the legal, equitable, or contractual rights attaching to the Allowed Claims of the
class are modified, other than by curing defaults and reinstating maturity or by payment in full
cash. A claim to which an objection is filed is not an Allowed Claim. However, the Court may
allow such a claim for purposes of voting on the Plan. If you have not received an objection to
your claim prior to Confirmation of the Plan and you have received a ballot for purposes of
voting on the Plan, then most likely your claim is an Allowed Claim. If you have a question, you
should consult your own attorney.
Ballots to be used for voting to accept or reject the Plan, together with a return envelope,
are enclosed with all copies of the Disclosure Statement mailed to creditors entitled to vote on
the Plan in accordance with the Code. Not all of the Debtor’s creditors are entitled to vote in
accordance with the Code (e.g., creditors in classes that are not impaired and holders of Claims
and Interests in classes that are not scheduled to receive any distribution under the Plan.) Those
creditors who are not impaired or hold Claims or Interests in classes that are not scheduled to
receive any distribution under the Plan may receive a copy of this Disclosure Statement but are
not entitled to vote. The Code provides that only certain classes are entitled to vote on the Plan.
If you are the holder of a Claim in an impaired Class you will receive a ballot for voting
on the Plan. If you believe that you have an Allowed Claim or an Allowed Interest in more than
one impaired class and did not receive more than one ballot, you should copy the ballot (or
request additional copies from the undersigned counsel) and complete and return on ballot for
each such separately classified Claim or Interest.
7
ADD-072
Completed ballots should be returned to Michael Van Dam, Van Dam Law LLP, 60
William Street, Wellesley, MA 02481. An envelope has been provided for this purpose with
ballots sent to persons entitled to vote on the Plan. Ballots must be received on or before 4:00
p.m. (Prevailing Eastern Time) on __________________, ____. Ballots received after the
deadline will not be counted unless the Court so orders.
D. Best Interests of Creditors
Notwithstanding acceptance of the Plan by creditors of each class, in order to confirm the
Plan, the Bankruptcy Court must independently determine that the Plan is in the best interests of
all classes of creditors impaired by the Plan. The “best interests” test requires that the
Bankruptcy Court find that the Plan provides to each member of each impaired class of claims a
recovery which has a value at least equal to the value of the distribution which each such creditor
would receive if the Debtor was liquidated under Chapter 7 of the Code. Please see the
discussion of liquidation value below.
1. Confirmation Without Acceptance by All Impaired Classes
Even if a plan is not accepted by all impaired classes, it may still be confirmed. The
Code contains provisions for confirmation of a plan where at least one impaired class of claims
has accepted it. These “cram-down” provisions are set forth in Section 1129(b) of the Code.
A plan of reorganization may be confirmed under the cram-down provisions if, in

addition to satisfying the usual requirements of Section 1129 of the Code, it (i) “does not
discriminate unfairly” and (ii) “is fair and equitable,” with respect to each class of claims that is
impaired under, and has not accepted, the plan. As used by the Code, the phrases “discriminate
unfairly” and “fair and equitable” have narrow and specific meanings unique to bankruptcy law.
The requirement that a plan of reorganization does not “discriminate unfairly” means that
a dissenting class must be treated equally with respect to other classes of equal rank. The Debtor
believes that its Plan does not “discriminate unfairly” with respect to any class of Claims.
The “fair and equitable” standard differs according to the type of claim to which it is
applied. In the case of secured creditors, the standard is met if the secured creditor retains its lien
and is paid the present value of its interest in the property which secures the secured creditor’s
claim.
IV. LIQUIDATION VALUATION
To calculate what creditors would receive if the Debtor was to be liquidated, the
Bankruptcy Court must first determine the aggregate dollar amount that would be generated from
the Debtor’s assets if the Chapter 11 case were converted to a Chapter 7 case under the Code and
the assets were liquidated by a trustee in bankruptcy (the “Liquidation Value”). The Liquidation
Value would consist of the net proceeds from the disposition of the assets of the Debtor
augmented by the cash held by the Debtor.
8
ADD-073
The Liquidation Value available to general creditors would be reduced by (a) the claims
of secured creditors to the extent of the value of its collateral, and (b) by the costs and expenses
of the liquidation, as well as other administrative expenses of the Debtor’s estates. The Debtor’s
costs of liquidation under Chapter 7 would include the compensation of trustees, as well as of
counsel and of other professionals retained by the trustees; disposition expenses; all unpaid
expenses incurred by the Debtor during the Chapter 11 case (such as compensation for attorneys)
which are allowed in the Chapter 7 proceeding; litigation costs; and claims arising from the
operation of the Debtor’s business during the pendency of the Chapter 11 reorganization and
Chapter 7 liquidation cases.
Once the percentage recoveries in liquidation of secured creditors, priority claimants,

general creditors and equity security holders are ascertained, the value of the distribution
available out of the Liquidation Value is compared with the value of the property offered to each
of the classes of Claims under the Plan to determine if the Plan is in the best interests of each
creditor and equity security holder.
The liquidation valuation of a business is often a contested issue in a Chapter 11 case.

Two methods of valuation widely used are the so-called “auction” method and the “going
concern” method. Using the auction approach, assets tend to be valued as though they were sold
at a public auction and not in the use at the time of the sale. The auction method is widely used
with tangible personal property such as trucks, trailers and tractors, assets which you can touch
and feel and which are easily valued as a function of the initial purchase price and subsequent
depreciation from use. The latter approach, the going concern method, tends to value assets
based upon its contribution to earnings. The going concern method tends to be used with assets
that tend not to suffer a decline from use such as accounts of a utility, maintenance contracts and
the like. The Debtor believes that the proper measure of valuation for liquidation of its real
estate business is the auction method. An orderly liquidation shall produce no proceeds new of
secured creditors. It is likely that there would be no dividend for unsecured creditors.
All of the Debtor’s Assets are either fully encumbered or exempt under the Bankruptcy
Code. As such, under the Chapter 7 Liquidation analysis, the unsecured creditors would receive
$0. see Exhibit C. Under the Plan, the creditors are receiving $25,000.
V. FEDERAL INCOME TAX CONSEQUENCES:
Implementation of the Plan may result in federal tax consequences to holders of Allowed
Claims. Tax consequences to a particular creditor may depend on the particular circumstances or
facts regarding the claim of the creditor. No tax opinion has been sought or will be obtained
with respect to any tax consequences of the Plan, and the following disclosure (the “Tax
Disclosure”) does not constitute and is not intended to constitute either a tax opinion or tax
advice to any Person. Rather, the Tax Disclosure is provided for informational purposes only.
Because the Debtor intends to continue its existence and business operations, he will
receive a discharge with respect to its outstanding indebtedness. Actual debt cancellation in
9
ADD-074
excess of the fair market value of the consideration (stock, cash or other property) paid in respect
of such debt will hereinafter be referred to as a “Debt Discharge Amount.”
In general, the IRC provides that a taxpayer who realizes a cancellation or discharge of
indebtedness must include the Debt Discharge Amount in its gross income in the taxable year of
discharge. The Debt Discharge Amounts may arise with respect to Creditors who will receive, in
partial satisfaction of their Claims, including any accrued interest, consideration consisting of or
including cash. The Debtor’s Debt Discharge Amount may be increased to the extent that
unsecured Creditors holding unscheduled claims fail to timely file a Proof of Claim and have
their Claims discharged on the Confirmation Date pursuant to Section 1141 of the Bankruptcy
Code. No income from the discharge of indebtedness is realized to the extent that payment of
the liability being discharged would have given rise to a deduction.
If a taxpayer is in a case under the Bankruptcy Code and a cancellation of indebtedness

occurs pursuant to a confirmed plan, however, such Debt Discharge Amount is specifically
excluded from gross income (the “Bankruptcy Exception”). The Debtor intends to take the
position that the Bankruptcy Exception applies to it. Accordingly, the Debtor believes it will not
be required to include in income any Debt Discharge Amount as a result of Plan transaction.
Section 108(b) of the IRC, however, requires certain tax attributes of the Debtor to be
reduced by the Debt Discharge Amount excluded from income. Tax attributes are reduced in the
following order of priority: net operating losses and net operating loss carry-overs; general
business credits; minimum tax credits; capital loss carry-overs; basis of property of the taxpayer;
passive activity loss or credit carry-overs; and foreign tax credit carry-overs. Tax attributes are
generally reduced by one dollar for each dollar excluded from gross income, except that general
tax credits, minimum tax credits, and foreign tax credits are reduced by 33.3 cents for each dollar
excluded from gross income. An election can be made to alter the order of priority of attribute
reduction by first applying the reduction against depreciable property held by the taxpayer in an
amount not to exceed the aggregate adjusted basis of such property. The Debtor does not
presently intend to make such election. If this decision were to change, the deadline for making
such election is the due date (including extensions) of the Debtor’s federal income tax return for
the taxable year in which such debt is discharged pursuant to the Plan.
The federal tax consequences of the plan to a hypothetical investor typical of the holders
of claims or interests in this case depend to a large degree on the accounting method adopted by
that hypothetical investor. A “hypothetical investor” in this case is defined as a general
unsecured creditor. In accordance with federal tax law, a holder of such a claim that uses the
accrual method and who has posted its original sale to the Debtor as income at the time of the
product sold or the service provided hypothetically should adjust any new operating loss to
reflect the dividend paid by the Debtor under the Plan provided that holder previously deducted
the liability to the Debtor as a “bad debt” for federal income tax purposes. Should that holder
lack a net operating loss, then in accordance with federal income tax provisions, the holder
should treat the dividend paid as ordinary income, again provided the holder previously deducted
the liability to the debtor as a “bad debt” for federal income tax purposes. If the accrual basis
holder of the claim did not deduct the liability as a “bad debt” for deferral income tax purposes,
then the dividend paid by the Debtor has no current income tax implication. A holder of a claim
10
ADD-075
that uses a cash method of accounting would, in accordance with federal income tax laws, treat
the dividend as income at the time of receipt.
THE DEBTOR MAKES NO REPRESENTATIONS REGARDING THE

PARTICULAR TAX CONSEQUENCES OF CONFIRMATION AND CONSUMMATION OF
THE PLAN AS TO ANY CREDITOR. EACH PARTY AFFECTED BY THE PLAN SHOULD
CONSULT HIS, HER, OR ITS OWN TAX ADVISORS REGARDING THE SPECIFIC TAX
CONSEQUENCES OF THE PLAN WITH RESPECT TO A CLAIM.
VI. FEASIBILITY
The Bankruptcy Code requires as a condition to Confirmation that the Bankruptcy Court
find that liquidation of the Debtor or the need for further reorganization is not likely to follow
after Confirmation. The Debtor has prepared financial projections and related schedules as
evidenced on the accompanying exhibits. Those projections show that the Debtor is capable of
operating well into the future and generating sufficient funds to perform its obligations in the
Plan and continuing without the need for further financial reorganization.
VII. DISCLAIMERS
THE CONTENT OF THIS DISCLOSURE STATEMENT HAS BEEN APPROVED

BY THE BANKRUPTCY COURT AS PROVIDING ADEQUATE INFORMATION TO
CREDITORS SO THAT THEY MAY HAVE SUFFICIENT INFORMATION TO VOTE
ON THE PLAN. NO REPRESENTATIONS CONCERNING THE DEBTOR,
INCLUDING THOSE RELATING TO ITS FUTURE BUSINESS OPERATING, OR THE
VALUE OF ITS ASSETS, ANY PROPERTY, AND CREDITORS’ CLAIMS,
INCONSISTENT WITH ANYTHING CONTAINED HEREIN HAVE BEEN
AUTHORIZED. THE DEBTOR DOES NOT WARRANT OR REPRESENT THAT THE
INFORMATION CONTAINED HEREIN IS COMPLETE OR WITHOUT OMISSIONS.
THE BANKRUPTCY COURT’S APPROVAL OF THIS PLAN OF REORGANIZATION
AND DISCLOSURE STATEMENT DOES NOT CONSTITUTE A
RECOMMENDATION FOR OR AGAINST THE PLAN.
THE FINANCIAL INFORMATION CONTAINED HEREIN AND IN THE

EXHIBITS ATTACHED HERETO HAVE NOT BEEN SUBJECT TO A CERTIFIED
AUDIT. THE RECORDS KEPT BY THE DEBTOR ARE BASED UPON INTERNAL
ACCOUNTINGS AND MANY VALUATIONS AND CERTAIN LIABILITIES HAVE
BEEN ESTIMATED. CONSEQUENTLY, THE DEBTOR DOES NOT WARRANT OR
REPRESENT THAT THE INFORMATION CONTAINED HEREIN OR IN THE PLAN
IS WITHOUT ANY INACCURACY OR OMISSION, ALTHOUGH REASONABLE
DILIGENCE HAS BEEN USED TO BE ACCURATE AND COMPLETE.
THIS DISCLOSURE STATEMENT MAY NOT BE RELIED UPON FOR ANY

PURPOSE OTHER THAN TO DETERMINE HOW TO VOTE ON THE PLAN, AND
NOTHING CONTAINED IN IT WILL CONSTITUTE AN ADMISSION OF ANY FACT
OR LIABILITY BY ANY PARTY, OR BE ADMISSIBLE IN ANY PROCEEDING
11
ADD-076
INVOLVING THE DEBTOR OR ANY OTHER PARTY, OR BE DEEMED

CONCLUSIVE ADVICE ON THE TAX OR OTHER LEGAL EFFECTS OF THE
REORGANIZATION ON HOLDERS OF CLAIMS.
THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT ARE

MADE AS OF THIS DATE UNLESS ANOTHER TIME IS SPECIFIED, AND NEITHER
DELIVERY OF THIS DISCLOSURE STATEMENT NOR ANY EXCHANGE OF
RIGHTS MADE IN CONNECTION WITH THIS DISCLOSURE STATEMENT WILL,
UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE FACTS SINCE THE DATE OF THE DISCLOSURE
STATEMENT AND THE MATERIALS RELIED UPON IN PREPARATION OF THIS
DISCLOSURE STATEMENT WAS COMPILED.
VIII. EFFECT OF THE ORDER CONFIRMING THE PLAN
To understand the full effect of an order confirming the Plan you should read Section
1141 of the Code. The following is a summary of that Section:
A. The provisions of the confirmed Plan bind the Debtor, any entity issuing
securities under the plan, any entity acquiring property under the Plan, and any creditor, equity
security holder, or general partner in the debtor, whether or not the claim or interest of such
creditor, equity security holder, or general partner is impaired under the Plan and whether or not
such creditor, equity security holder, or general partner has accepted the Plan.
B. Confirmation of the Plan will act as an injunction against creditors seeking to
collect upon their claims for so long as the Debtor remains current under the Plan.
C. Except as otherwise provided in the Plan or the order confirming the Plan, only
upon confirmation shall all of the property of the estate vest in the Debtor.
IX. DEBTOR’S RECOMMENDATION
The Debtor is firmly convinced that his Plan is in the interest of all creditors. The Debtor
strongly urges all creditors to cast their votes in favor of the Plan of Reorganization.
Each creditor is urged to consult with its own counsel in evaluating its claim and in
determining how to vote.
Respectfully Submitted,
/s/ Anthony Giannasca

Anthony Giannasca
By his counsel,
12
ADD-077
/s/ Michael Van Dam

Michael Van Dam, Esq.
BBO # 653979
Van Dam Law LLP
60 William Street, Suite 300
Wellesley, MA 02481
Tel: (617) 969-2900
Fax: (617) 964-4631
Dated: January 7, 2012
13
ADD-078

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1

DEUTSCHE BANK NATIONAL TRUST COMPANY & others

ON APPEAL FROM A JUDGMENT OF

Glenn F. Russell, Jr.

I. STATEMENT OF THE ISSUES PRESENTED...................5

II. STATEMENT OF FACTS..................................5

A. THE SUPERIOR COURT JUDGE ERRED IN DETERMINING

B. IN THE ALTERNATIVE, PLAINTIFF MADE TWO POST-

STATEMENT CERTIFICATE OF SERVICE........................24

Jose v. Wells Fargo Bank

Sullivan v. Kondaur Capital,

U.S. Bank Nat’l Ass’n v. Ibanez

Wells Fargo Bank v. Cook,

MASSACHUSETTS STATE STATUTES

Massachusetts General Law

UNITED STATES CODE

1. Whether the Plaintiff’s Selection of His Intention

2. In The Alternative, Whether The Defendant’s

II. STATEMENT OF FACTS

Plaintiff/Appellant, Anthony Giannasca, (“Plaintiff”)

herein through undersigned counsel, respectfully responds to

this Court’s Order of February 25, 2020 below:

ORDER: In light of the Supreme Judicial Court's order of

The genesis of the above Order was direction from the

February 21, 2020 Order of the Massachusetts Supreme Judicial

Court (“SJC”) on Plaintiff’s Application for Further Appellate

Review, SJC which stated as follows:

“Please take note that on February 21, 2020, the

The February 21, 2020 SJC Order stated that it was

within this Court’s discretion to also entertain further

briefing upon the Dissenting Judge’s position on prudential

issues raised therein. However, under the February 25, 2020

solely restricted to the issues connected with the Plaintiff’s

bankruptcy action and claimed discharge under findings made by

the Superior Court Judge. 1 As a result of the narrow scope of

this Court’s briefing order, Plaintiff wishes to state for the

record that, respectfully, he continues to challenge the

majority’s findings related to the “prudential issues”

identified by Rubin J. in his Dissent, and the SJC. The

1 In its August 21, 2019 Opinion, this Court declined to

Plaintiff also wishes to reiterate that the Dissenting Judge

clearly identified significant unresolved issues under

Massachusetts state law that are in dire need of guidance for

the inferior courts as well as the residents of this

All of Plaintiff’s pleadings to date in this matter (Trial

and Appellate) have been solely authored and advanced pro-se

by Plaintiff [save the FAR Brief fled on Plaintiff’s behalf by

undersigned]. As a result, the bankruptcy issue was never fully

briefed at the trial Court level below. In addition, the

pleadings before this Court, both the pro-se Plaintiff and

counsel for the Defendant/Appellee, Deutsche Bank National

Trust Company et. al (“Defendant”) also never briefed the

bankruptcy issue before this Court. 2 The Plaintiff subsequently

approached undersigned to solely present oral argument in this

matter. After reviewing the Order of the Superior Court Judge,

undersigned prepared an outline for oral argument that

addressed all of the issues that the Superior Court Judge

relied upon in ruling in Defendant’s favor of Summary Judgment,

which included the bankruptcy findings. 3 Based upon the

specific wording of this Court’s February 25, 2020 Order,

undersigned worked with Plaintiff to find and identify

responsive documents to this Court’s Order, which are attached

at the Addendum hereto. These documents establish that, in