UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

Richard Lloyd Miller Debtor(s).

Case No. 19-23375-JKO

Chapter 13 Case

THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS 

TRUSTEE FOR REGISTERED HOLDERS OF CWABS, INC., ASSET-BACKED 

CERTIFICATES, SERIES 2006-2 RESPONSE TO OBTJECTION TO CLAIM(#14)

COMES NOW, THE BANK OF NEW YORK MELLON, F/K/A The Bank of New York 

as trustee for registered Holders of CWABS, Inc., Asset-Backed Certificates, Series 2006-2, its 

Successors and/or Assigns (“Secured Creditor”), by and through its undersigned counsel, as and 

for its Response to Debtor’s Objection to Claim #14 (Doc. No.23), and states as follows:

1. The Debtor(s) filed a voluntary petition pursuant to Chapter 13 of the Bankruptcy Code on 

October 04, 2019.

2. Secured Creditor holds a security interest in the Debtor(s)’ real property located at 12850 

SW 56th Street, Southwest Ranches, Florida 33330, by virtue of a Final Judgment of 

Mortgage Foreclosure which is recorded in the Public Records of Broward County, Florida

Instrument # 116032414. Said Judgment was recorded on September 5, 2019 in the amount 

of $419,270.59. A copy of the Judgment is attached to Secured Creditor’s Proof of Claim 

No. 4-2.

3. The aforementioned gives Secured Creditor a first position on property legally described 

as:

THE EAST 132 FEET OF THE WEST 1/2 OF TRACT 61, AND THE EAST 132 

FEET OF THE WEST 1/2 OF TRACT 62, OF SECTION 35, TOWNSHIP 50 

SOUTH, RANGE 40 EAST, OF FLORIDA FRUIT LANDS CO. SUBDIVISION NO. 

1, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, 

PAGE 17, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; SAID

LANDS SITUATE AND BEING IN BROWARD COUNTY, FLORIDA

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More commonly Known as: 12850 SW 56th Street, Southwest Ranches, Florida 

33330

4. The subject loan has been in default as of November 1, 2015.

5. Secured Creditor filed a timely Proof of Claim (Claim 4-2) with arrears in the amount of 

$83,525.71 and a total secured claim in the amount of $423,750.72. The arrears in the 

amount of $83,525.71 included the following:

a. Principal and Interest Due: $37,795.36

b. Prepetition Fees: $16,718.28

c. Escrow Deficiency: $24,592.19

d. Projected Escrow Shortage: $5,059.45

e. Less Funds on Hand: ($339.57)

6. Where a proof of claim is executed and filed in accordance with the Federal Rules of

Bankruptcy Procedure, it “constitute[s] prima facie evidence of the validity and amount of 

the claim.” Fed. R. Bankr. P. 3001(f). Thus, a debtor challenging a proof of claim bears the 

initial burden of going forward and introducing sufficient evidence to rebut the 

presumption of validity created pursuant to Rule 3001(f). In re Gurley, 311 B.R. 910, 915-

16 (Bankr. M.D. Fla. 2001) "Such evidence must be sufficient to evidence a true dispute 

and must have probative equal to the contents of the claim. Id. Upon introduction of 

sufficient evidence by the objecting party, the burden of proof must then be met by the 

claimant by a preponderance of the evidence." Id. "The burden of proof is on the objecting 

party to produce evidence 'equivalent in probative value to that of the creditor to rebut the 

prima facie effect of the proof of claim... The burden of ultimate persuasion rests with the 

claimant." In re Homelands of DeLeon Springs, Inc., 190 B.R. 666, 668 (Bankr. M.D. Fla. 

1995) citing In re VTN, Inc., 69 B.R. 1005 (Bankr. S.D. Fla. 1987).

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7. Debtor filed an Objection to Secured Creditor’s Claim (Doc. 23) alleging that the 

$37,795.36 and missed principal and interest payments was improper based on fact that the 

Final Judgment of Foreclosure, attached hereto as Exhibit “A”, included interest in the 

amount of $19,654.87. However, the $19,654.87 awarded in the Final Judgment of 

Foreclosure was solely for missed interest. Conversely, the $37,495.36 claimed in the POC 

is for missed principal AND interest payments. The 47 missed principal and interest 

payments are itemized in Secured Creditor’s Proof of Claim 4-2 and are further broken 

down in the Loan Modification Agreement attached to Secured Creditor’s Proof of Claim 

No. 4-2.

a. 44 Missed Principal and Interest Payment from November 2015-July 2019 at 

789.62

b. 3 Missed from August 2019-October 2019 at $917.36

8. The foreclosure judgment establishes the debtor's liability as to all amounts awarded in the 

judgment under the doctrine of res judicata. In re Tomasevic, 275 B.R. 86, 96 (Bankr. M.D. 

Fla. 2001). "Res judicata precludes reexamination not only of liability for a debt, but also 

its amount as well." Ob/Gyn Solutions, L.C. v. Six (In re Six), 80 F.3d 452, 456 (11th Cir. 

1996). "When res judicata is invoked to give preclusive effect to a state court judgment, 

[the bankruptcy court] must apply state law." Id.; In re Tomasevic, 275 B.R. 86, 96 (Bankr. 

M.D. Fla. 2001). 

9. Debtor’s Objection Secured Creditor’s Claim (Doc. 23) further alleges that the projected 

escrow shortage of $5,059.45 is improper, without providing a basis or documentation in 

support thereof. Consequently, Secured Creditor asserts that Debtor has failed to meet its 

initial burden of overcoming the prima facie validity of the amounts stated in the claim.

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10. Notwithstanding, the $5,059.45 projected escrow balance is permissible under the Note, 

Mortgage, Loan Modification, and Real Estate Settlement Practices Act (RESPA), and is 

supported by the Escrow Analysis attached to Secured Creditor’s Proof of Claim (Claim 

4-2) in accordance with requirements of Fed. R. Bankr. P. 3001(c)(2)(C).

WHEREFORE, Secured Creditor respectfully requests that this Court enter an Order 

overruling Debtor’s Objection to Claim, awarding attorney fees and costs, and for such other 

further relief as the Court may deem just and proper.

Respectfully submitted:

/s/ Alexandra Kalman

Alexandra Kalman

FBN 109137

Lender Legal Services, LLC

Attorney for Secured Creditor

201 E. Pine Street, Suite 730

Orlando, FL 32801

Phone: (407) 730-4644

Fax: (888) 337-3815

akalman@lenderlegal.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Response to Debtor’s 

Objection to Claim was either sent electronically or by U.S. mail, first-class postage pre-paid, to:

Richard Lloyd Miller

5700 SW 130 Ave

Southwest Ranches, FL 33330 

(U.S. Mail)

 

Mitchell J. Nowack, Esq.

8551 Sunrise Blvd #208

Plantation, FL 33322 

(ECF)

 

Robin R Weiner - Trustee

POB 559007

Fort Lauderdale, FL 33355

(ECF)

 

U.S. Trustee

Office of the US Trustee

51 S.W. 1st Ave.

Suite 1204

Miami, FL 33130 

(ECF)

on January 31, 2020. Respectfully submitted:

/s/ Alexandra Kalman

Alexandra Kalman

FBN 109137

Lender Legal PLLC

Attorney for Secured Creditor

2807 Edgewater Drive

Orlando, FL 32804

Phone: (407) 730-4644

Fax: (888) 337-3815

akalman@lenderlegal.com

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