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In re Shelby

United States Bankruptcy Court, N.D. Alabama, Southern Division

August 1, 2013

In re: Mozell Shelby, Debtor.
v.
Mozell Shelby, Defendant. Santander Consumer USA, Plaintiff, A. P. No. 13-00078

MEMORANDUM OPINION

BENJAMIN COHEN, Bankruptcy Judge.

The matters before the Court are:

1. The Motion for Preliminary Injunction filed on July 3, 2013, by the Plaintiff; and
2. Mozell Shelby's Motion to Compel Arbitration and Dismiss filed on July 11, 2013.

After notice, a hearing was held on July 17, 2013. Appearing were Andrew Scott Herring and Wess Barnett, the attorneys for Mozell Shelby; Michael Hall, Ryan Thompson and Daniel Snyder, the attorneys for Santander Consumer USA; and Mary Frances Fallaw, the attorney for the Chapter 13 Trustee.

I. Findings of Fact[1]

The debtor filed this bankruptcy case on July 10, 2010. Docket No. 1. On Schedule D - Creditors Holding Secured Claims, the debtor lists two account with the plaintiff Santander. Docket No. 17. One account is for a 2006 Chrysler 300 with a claim amount of $17, 756.25. The unsecured portion is $4, 631.25. The other account is for a 2006 Chevy Impala with a claim amount of $16, 675.73. The unsecured portion is $6, 625.73.

At the time, the debtor did not list a cause of action she claimed against Santander but which she later included by way of an amendment on July 10, 2013.

Santander filed two claims in this case. Claim No. 3 was filed on August 2, 2010, as a secured claim for $19, 378.18. Claim No. 4 was filed on August 5, 2010, as a secured claim for $16, 512.63.

On July 16, 2010, the debtor filed a Motion to Determine Value of the 2006 Chrysler 300. Docket No. 16. After notice, a hearing was held on October 12, 2010. Appearing were Jack Long, the attorney for the debtor; and Sims Crawford, the Chapter 13 Trustee. No one appeared for Santander. On October 18, 2010, the Court entered an order granting the motion and valuing the 2006 Chrysler 300 at $13, 850.00 as the secured portion of claim 3, with the balance of claim 3 to be treated and paid as unsecured. Docket No. 44.

On October 22, 2010, the debtor filed a Motion to Determine Value of the 2006 Chevrolet Impala. Docket No. 49. After notice, a hearing was held on November 30, 2010. Appearing were the debtor; Mr. Long; and Mr. Crawford. No one appeared for Santander. On December 10, 2010, the Court entered an order granting the motion and valuing the 2006 Chevrolet Impala at $9, 375.00 as the secured portion of claim 4, with the balance of claim 4 to be treated and paid as unsecured. Docket No. 62.

On December 21, 2010, the debtor's Chapter 13 Plan was confirmed. Docket No. 65. Pursuant to the Confirmation Order, Santander was to receive a $404 fixed monthly payment on Claim 3 and a $217 fixed monthly payment on Claim 4.

On June 26, 2012, the debtor filed a lawsuit against Santander in the United States District Court for the Northern District of Alabama, Case No. 2:12-cv-02183-RDP, alleging that Santander breached its contract with the debtor and violated the provisions of the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act of 1991 during Santander's administration of the Loans (the "causes of action").

On October 2, 2012, the lawsuit was dismissed because the parties agree to arbitrate these causes of action. The debtor filed an arbitration case ...


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