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In Re: Gary A. Shelton; Elizabeth Dawn Shelton, Also Known As Dawn Shelton v. Citimortgage

September 24, 2012

IN RE: GARY A. SHELTON; ELIZABETH DAWN SHELTON, ALSO KNOWN AS DAWN SHELTON, DEBTORS.
GARY A. SHELTON; ELIZABETH DAWN SHELTON PLAINTIFF -- APPELLANTS
v.
CITIMORTGAGE, INC. DEFENDANT -- APPELLEE



Appeal from the United States Bankruptcy Court for the Eastern District of Arkansas

The opinion of the court was delivered by: Venters, Bankruptcy Judge.

Submitted: September 6, 2012

KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges

The Debtors appeal the bankruptcy court's order granting Defendant CitiMortgage, Inc.'s motion to dismiss the Debtors' adversary proceeding seeking the avoidance of CitiMortgage's lien on the Debtors' residence. For the following reasons, we affirm the decision of the bankruptcy court.*fn1

BACKGROUND

The facts are straightforward and uncontested. The Debtors filed a Chapter 13 bankruptcy petition on September 21, 2010. The deadline for filing timely proofs of claim was January 25, 2011, and CitiMortgage did not file its proof of claim until August 22, 2011, almost seven months late. CitiMortgage filed it as a secured claim in the amount of $210,596.66 and attached copies of a note and mortgage signed by the Debtors.

The Debtors objected to CitiMortgage's proof of claim on August 29, 2011, seeking its disallowance as an untimely filed claim. Notably, the Debtors' objection did not dispute the validity of CitiMortgage's lien or seek its avoidance. On November 18, 2011, the bankruptcy court entered an agreed order disallowing CitiMortgage's claim on the ground that it was filed after the bar date.

Shortly thereafter, on December 9, 2011, the Debtors filed an adversary proceeding seeking the avoidance of CitiMortgage's lien pursuant to § 506(d). CitiMortgage responded with a motion to dismiss the adversary proceeding. Fed. R. Civ. P. 12(b)(6) and Fed. R. Bankr. P. 7012(b).

The bankruptcy court held a hearing on CitiMortgage's motion on February 22, 2012, and took the matter under advisement. On April 30, 2012, the court granted CitiMortgage's motion and dismissed the adversary proceeding. The Debtors timely appealed.

JURISDICTION

An order granting a motion to dismiss an adversary proceeding is a final order over which we have jurisdiction under 28 U.S.C. §158(b).

STANDARD OF REVIEW

We review de novo the bankruptcy court's order granting CitiMortgage's ...


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