IN RE PAMELA M. TOLLIVER DEBTOR

In re: PAMELA M. TOLLIVER Debtor.
PAMELA M. TOLLIVER, Plaintiff,
v.
BANK OF AMERICA, ET AL., Defendants.

Case No. 09-21742, Adv. Case No. 09-2076.

United States Bankruptcy Court E.D. Kentucky, Covington Division.


February 2, 2012.







MEMORANDUM OPINION

TRACEY N. WISE, Bankruptcy Judge.
When the Defendants Ocwen Federal Bank, FSB ("Ocwen") and Bank of America, NA ("BOA") filed a Proof of Claim for a secured mortgage loan in the principal amount of $836.24 and $4,716.94 in outstanding fees and costs, the Plaintiff Debtor responded by filing an adversary proceeding objecting to the claim and asserting multiple counterclaims for violations of state and federal law based on an allegation that the Defendants improperly assessed thousands of dollars to the Plaintiff's account for fees and costs contrary to the terms of their agreement, which allegedly resulted in an artificially inflated balance that forced her into default and caused her to pay more than she actually owed on the account. The parties moved for summary judgment on the Plaintiff's claims and during the interim, the United States Supreme Court decided Stern v. Marshall, 131 S.Ct. 2594 (2011), which called into question how this Court, being a court of limited jurisdiction, may proceed with the Plaintiff's state law counterclaims.
The Court, having reviewed the parties' briefs and hearing oral arguments, and having considered the parties' supplemental briefs on the effect of Stern on this proceeding, finds that this Court may enter final judgment on the Plaintiff's Objection to Claim and fraud/intentional misrepresentation claim (Count III), conversion claim (Count IV), breach of implied covenant of good faith claim (Count V), negligent misrepresentation claim (Count VI), breach of contract claim (VII) and the FDCPA claim (Count IX), but the limitations set forth in Stern require it to issue proposed findings of fact and conclusions of law as to the Plaintiff's remaining state law counterclaims, i.e., the Plaintiff's claims for violations of K.R.S. §360.010 (Count I) and violations of the Kentucky Consumer Protection Act (Count II).
Acting pursuant to that authority, the Court shall recommend to the District Court following trial that it accept its proposed findings of fact and conclusions of law as to the Plaintiff's claim for violations of the Kentucky Consumer Protection Act (Count II) and grant summary judgment to the Defendant as a matter of law. The Court shall deny both the Plaintiff and the Defendants' cross-motions for summary judgment on the remaining claims, as there remain genuine issues of material fact to be resolved at trial, and following trial, will recommend the District Court accept its proposed findings of fact and conclusions of law as to the state law counterclaims that are related to this proceeding but upon which this Court may not enter final orders pursuant to 28 U.S.C. §157 and Stern.


The Full Opinion