UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN RE:

Carlos F. Mendez

 Debtor.

BK CASE NO. 22-10372-RAM

CHAPTER 13

AJAX MORTGAGE LOAN TRUST 2018-D, MORTGAGE-BACKED SECURITIES, 

SERIES 2018-D, BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE 

TRUSTEE MOTION TO COMPEL CHAPTER 13 PLAN MODIFICATION and/or 

DISMISS CASE

COMES NOW, Ajax Mortgage Loan Trust 2018-D, Mortgage-Backed Securities, Series 2018-D, 

by U.S. Bank National Association, as Indenture Trustee (“Creditor”) by and through its 

undersigned attorney and files this to Compel Chapter 13 Plan Modification or in the alternative 

to dismiss case and states as follows in support:

BACKGROUND

1. On January 18, 2022 Debtor filed a Voluntary Chapter 13 Petition [Doc. 1]. 

2. On February 2, 2022, Debtor filed the Chapter 13 Plan [Doc. 16] seeking mortgage 

modification on the property identified as 1990 Keystone Blvd., Miami, Florida 33181 (the 

“Property”). The Second Amended Plan (the “Plan”) was filed on June 23, 2022 and proposed 

the same treatment as to Creditor [Doc. 38]. Debtors sought to pay adequate protection for the 

mortgage modification mediation payment in the amount of $900 per month, which is less than 

the contractual monthly amount owed to Creditor in the amount of $4,488.19. Further the Plan 

does not include arrearage owed to Creditor based on its request for mortgage modification 

mediation.

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3. On March 23, 2022, Creditor filed its Proof of Claim 3 evidencing its security 

interest in the amount of $467,669.07 with $39,323.48 in arrearage.

4. On May 12, 2022, an order Granting Debtor’s Verified Ex Parte Motion for Referral 

to mortgage Modification Mediation was entered [Doc. 32].

5. On July 25, 2022, the mediator filed the Final Report of Loss Mitigation/Mortgage 

Modification Mediator [Agreement NOT Reached] [Doc. 42].

6. On July 29, 2022, the Plan was confirmed [Doc. 47]. The Order Confirming 

Chapter 13 Plan 

7. To date, more than fourteen (14) days have passed since the Mediator issued the 

Report to the Court of Mediation Conference and Debtor failed to file a Motion to Modify the Plan 

which presently pays an inadequate adequate protection payment to Creditor based on Debtor’s 

initial pursuit of Mortgage Modification Mediation and does not treat the arrears. Upon conclusion 

of an unsuccessful loss mitigation review, the bankruptcy is intended to become a true cure and 

maintain not a park and obstain

BASIS FOR DISMISSAL

8. The Southern District of Florida Bankruptcy MMM Program Procedures require, 

“[i]f the lender and the debtor fail to reach a settlement, then no later than 14 calendar days after 

the mediator’s Final Report is filed, the debtor will amend or modify the plan to (a) conform to the 

lender’s Proof of Claim (if the lender has filed a Proof of Claim), without limiting the Debtor’s 

right to object to the claim or proceed with a motion to value; or (b) provide that the real property 

will be “treated outside the plan.”

9. Debtor fails to comply with the MMM Procedures.

10. 11 U.S.C. 1307(c)(1) allows for dismissal of a cause caused by unreasonable delay 

by the debtor that is prejudicial to creditors.

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11. Debtor is abusing the bankruptcy process attempting to delay the inevitable 

continued foreclosure trial while it lingers in bankruptcy under the guise of seeking a mortgage 

modification mediation that ended on July 25, 2022 with the issuance of the Final Report of 

Mediation. The Modified Plan was due on August 8, 2022; and the Debtor is reposing in a tub of 

her mass pre-petition arrears without comply with the Mortgage Modification Mediation

Procedures. This establishes cause under 11 U.S.C. 1307(c)(1).

12. The Court should not allow willful disobedience of the Order. The Supreme Court 

stated in a 1992 bankruptcy decision that “[d]eadlines may lead to unwelcome results, but they 

prompt parties to act and they produce finality.” Taylor v. Freeland & Krontz, 503 U.S. 638, 644; 

112 S. Ct. 1644, 1648 (1992). Here, the Debtor willfully disregards a court deadline. If it is the 

courts intend to treat debtors and creditors equally in bankruptcy cases, then they must enforce 

deadlines evenly. Deadlines pertaining to actions by debtors must be enforced as readily as 

deadlines that affect trustees or creditors. Penalties for willfully disregarding those deadlines must 

be equally enforced to discourage such behavior. To do so otherwise would constitute bias in 

favor of debtors, render the requirements of the Mortgage Modification Mediation Program 

meaningless and debase the bankruptcy court system.

13. Debtor willfully ignores the Court’s deadlines in in the MMM Procedures and that 

needs to be to their detriment to maintain the integrity of our bankruptcy system and the Mortgage 

Modification Mediation Program. 

14. The Court should dismiss the bankruptcy with a 1-year bar prohibiting refiling.

WHEREFORE, this Court should dismiss the bankruptcy with a one-year bar prohibiting 

refiling the bankruptcy case as befitting this behavior; in the alternative the Court should require 

Debtor to modify the Confirmed Chapter 13 Plan to cure and maintain as to the mortgage or 

surrender; in the alternative an Order should be entered entitling Creditor to a comfort order 

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granting it relief from the automatic stay.

/s/ Allison D. Thompson

Allison D. Thompson

Florida Bar No. 36981

adt@mechaniknuccio.com

MECHANIK NUCCIO HEARNE & WESTER, P.A.

305 South Boulevard

Tampa, Florida 33606-2150

(813) 276-1920 (Tel)

(813) 276-1560 (Fax) 

CERTIFICATE OF SERVICE

I hereby certify that I am admitted to the bar of this Court. I further certify that the 

foregoing document was served either by CM/ECF transmission or standard first class mail this 

10th day of August 2022, to the following: 

Carlos F Mendez

1990 Keystone Blvd

Miami, FL 33181

Debtor

Samir Masri

901 Ponce de Leon Blvd #101

Coral Gables, FL 33134

Debtor Attorney

Nancy K. Neidich

www.ch13miami.com

POB 279806

Miramar, FL 33027

Chapter 13 Trustee

United States Trustee

51 S.W. 1st Ave., Ste. 1204

Miami, Florida 33130

U.S. Trustee

/s/ Allison D. Thompson

Allison D. Thompson

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