UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flmb.uscourts.gov

In re: 

Chapter 13

 Case No.: 20-22928-AJC

MIGUEL ELIAS-SAUD,

Debtor.

_______________________________/ 

RESPONSE TO DEBTOR’S OBJECTION TO 

CREDITOR, U.S. BANK TRUST NATIONAL ASSOCIATION, 

AS TRUSTEE OF THE CHALET SERIES III TRUST, NOTICE OF

POST-PETITION MORTGAGE FEES, EXPENSES AND CHARGES [D.E. 62]

Secured Creditor, U.S. Bank Trust National Association, as Trustee of the Chalet Series 

III Trust as serviced by SN Servicing Corporation (the “Secured Creditor”), responds to the 

Debtor’s Objection To Creditor, U.S. Bank Trust National Association, As Trustee Of The 

Chalet Series Iii Trust, Notice Of Post-Petition Mortgage Fees, Expenses And Charges

(the “Objection”) and states: 

1. On January 5, 2007, Miguel Elias-Saud (the “Debtor”) executed a Note in the 

total amount of $335,000.00 and the Debtor along with Co-Debtors Sonia Elias and Margarita 

Elias, executed a mortgage recorded in OR Book 25408, Page 0611, in the Official Records of 

Miami-Dade County, Florida, on the property located at 1857 SW 14th Terrace, Miami, FL 

33145. Secured Creditor is the owner and holder of that certain promissory note and that 

mortgage.

2. On November 25, 2020 (the “Petition Date”), the Debtor filed its Voluntary 

Petition under Chapter 13 of the United States Bankruptcy Code [D.E. 1].

3. On January 4, 2021, Secured Creditor filed its Proof of Claim, Claim 1-1 (the 

“Claim”), setting forth a total secured amount of $527,141.21 and an arrearage of $265,747.39. 

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4. On December 10, 2020, the Debtor filed the Chapter 13 Plan [D.E. 67] which 

indicated Debtor intends on participating in mortgage modification mediation as it relates to 

Secured Creditor’s Claim. 

5. On February 9, 2021, Secured Creditor filed an Objection to Plan (the “Plan 

Objection”) on the grounds that the Debtor had failed to file a Motion for MMM and that the 

Plan failed to address the arrearage which would need to be addressed if the mediation resulted

in no agreement. 

6. On April 20, 2021, Secured Creditor filed its Notice of Post-petition Mortgage 

Fees, Expenses, and Charges (the “Notice”) which included the following attorney’s fees: 

$550.00 for Proof of Claim and $250.00 for Proof of Claim Form 410/410A Loan Payment 

History, $400 for a Plan Review and $550.00 for the Plan Objection.

7. On May 11, 2021, the Debtor filed the Objection indicating that this “creditor is 

not entitled to any future and or reasonable fees and costs unless awarded by this court” and 

“[f]urther, there is no equity in the property.”

8. Pursuant to Paragraph # 9 of the mortgage, “Lender may do and pay for whatever 

is reasonable or appropriate to protect Lender’s interest in the Property and rights under this 

Security Instrument, including ... paying reasonable attorneys’ fees to protect its interest in the 

Property and/or rights under this Security Instrument.” Additionally, “[a]ny amounts disbursed 

by Lender under this Section 9 shall become additional debt of Borrower secured by this 

Security Instrument.”

9. In TranSouth Financial Corp. of Florida v. Johnson, 931 F.2d 1505 (11th 

Cir.1991), the Eleventh Circuit found that the plain language of the term “claim” includes a 

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debtor's obligation to pay a creditor's attorney’s fees under an enforceable contract that gives rise 

to the claim. 

10. Moreover, a contract allocating attorney's fees that is enforceable under 

substantive, nonbankruptcy law is allowable in bankruptcy except where the Bankruptcy Code 

provides otherwise. Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 

443, 127 S. Ct. 1199, 1200, 167 L. Ed. 2d 178 (2007).

11. Under 11 U.S.C § 502(b), the bankruptcy court “shall allow” a creditor's claim 

“except to the extent that” the claim implicates any of the nine enumerated exceptions.

12. Therefore, attorney’s fees included in the Notice are included in the Claim of 

Secured Creditor as the fees are recoverable under paragraph # 9 of the Mortgage which together 

with the Note give rise to the Claim and do not fall under the exceptions 11 U.S.C. § 502(b)(2)-

(9).

13. Furthermore, the Supreme Court in. Travelers Cas. & Sur. Co. of Am. v. Pac. Gas 

& Elec. Co., made clear that the creditor’s under secured status does not preclude contractual 

attorney fees merely by virtue of the fees being incurred post-petition.

14. Additionally, disallowing the attorney’s fees that are recoverable under nonbankruptcy law directly violates the non-modification provision of the Bankruptcy Code, 11 

U.S.C. § 1322(b)(2) which prohibits modifying the rights of holders of secured claims secured 

only by a security interest in real property that is Debtor’s principal residence. 

15. Hence, the Objection should be overruled as the attorney’s fees are recoverable 

under non-bankruptcy law pursuant to the plain language of the Mortgage and thus, should be 

allowed under 11 U.S.C § 502(b) and disallowing the fees would violate 11 U.S.C. § 1322(b)(2).

16. Creditor reserves the right to supplement this Response.

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WHEREFORE, Secured Creditor respectfully requests that this Honorable Court 

overrule the Debtor’s Objection To Creditor, U.S. Bank Trust National Association, As Trustee 

Of The Chalet Series Iii Trust, Notice Of Post-Petition Mortgage Fees, Expenses And Charges 

and for any such other relief that the Court deems just and proper.

Dated this 11th day of June, 2021.

Respectfully submitted,

GHIDOTTI | BERGER, LLP

Attorneys for Secured Creditor

1031 N. Miami Beach Blvd.

North Miami Beach, Florida 33162

Telephone: (305) 501.2808

Facsimile: (954) 780.5578

By: /s/ Melbalynn Fisher 

Melbalynn Fisher, Esq.

Florida Bar No. 107698

mfisher@ghidottiberger.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 11, 2021, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. 

I also certify that the foregoing document is being served this day, either via transmission

of Notice of Electronic Filing generated by CM/ECF or by first class U.S. Mail, upon:

By: /s/ Melbalynn Fisher

 Melbalynn Fisher, Esq

Debtor

Miguel Elias-Saud

1857 SW 14 TERRACE

Miami, FL 33145

Trustee

Nancy K. Neidich

POB 279806

Miramar, FL 33027

Debtor’s Counsel

Michael A. Frank, Esq.

10 NW LeJeune Rd #620

Miami, FL 33126

U.S. Trustee

United States Trustee - ORL7/13, 7

51 S.W. 1st Ave.

Suite 1204

Miami, FL 33130

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