UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN RE:

AVA C. BENJAMIN,

Debtor.

______________________________________/ 

Case No. 19-25801-LMI

Chapter 13

TIAA FSB’S OBJECTION TO DEBTOR’S MOTION TO MODIFY CHAPTER 13 PLAN

AND SECOND MODIFIED CHAPTER 13 PLAN

TIAA FSB (“Secured Creditor”), by and through undersigned counsel, files this Objection 

to Debtor’s Motion to Modify Chapter 13 Plan and Second Modified Chapter 13 Plan, and in 

support states as follows:

1. On November 22, 2019, Ava C. Benjamin (“Debtor”) commenced this 

bankruptcy case by filing a petition for relief under Chapter 13 of the United States Bankruptcy 

Code [D.E. #1].

2. Secured Creditor holds a first mortgage position on Debtor’s real property located 

at 2246 NW 61 Street, Miami, FL 33142 (the “Property”), by virtue of a Mortgage which is 

recorded in Official Records Book 27103, at Page 4531, of the Public Records of Miami-Dade 

County, Florida. The Mortgage secures a Note in the amount of $116,000.00. 

3. Secured Creditor filed a Proof of Claim [Claim # 7] on January 8, 2020 in this case, 

in the principal balance amount of $82,488.08 with arrears in the amount of $17,818.30. At the 

time of filing, the regular monthly mortgage payment was $765.91.

4. On May 19, 2020, Secured Creditor filed a Notice of Post-petition Mortgage Fees, 

Expenses, and Charges (“PPFN”) in the amount of $665.00.

5. Subsequent to the Secured Creditor’s filed Proof of Claim #7, and in compliance 

with the requirements of Fed.R.Bankr.P.3002.1, Secured Creditor filed two separate Notice of 

Mortgage Payment Changes as follows:

a. Notice of Mortgage Payment Change filed on October 5, 2020, for a payment 

change effective on November 1, 2020 in the amount of $1,258.38 (the 

“11/1/2020 NOPC”).

Case 19-25801-LMI Doc 89 Filed 11/10/21 Page 1 of 4
b. Notice of Mortgage Payment Change filed on December 10, 2020, for a payment 

change effective on January 1, 2021 in the amount of $943.86 (the “1/1/2021

NOPC”).

6. Debtor’s First Modified Plan [D.E. #73] was confirmed by Order dated March 18, 

2021 [D.E. #75] which conformed to Claim 7 and each of the filed Notices of Mortgage Payment 

Changes.

7. On October 20, 2021, Debtor file a Motion to Modify Chapter 13 Plan [D.E. #83]. 

According to the proposed Second Modified Chapter 13 Plan [D.E.# 87] (“Modified Plan”), 

Debtor proposed to retain the Property, cure the pre-petition arrearage, and provide for the ongoing 

monthly mortgage payment.

8. While the Modified Plan continues to propose the curing of arrears in the amount 

of $17,818.30, Debtor is no longer proposing to maintain the ongoing monthly mortgage payments 

in accordance with Claim #7 or the previously filed Notice of Mortgage Payment Changes. The 

Modified Plan also seeks to skip payments of the pre-petition arrearage for months 23 through 28 

and fails to provide for the filed PPFN.

9. Pursuant to 11 U.S.C. §1325(a)(5)(B)(iii)(I), Secured Creditor is entitled to period 

payments in equal amounts that conform with Claim #7 and each of the filed Notice of Mortgage

Payment Changes. Secured Creditor objects to any plan which does not provide for payments in 

equal amounts. Secured Creditor objects to proposed Modified Plan treatment to skip payments as 

to the curing of the arrearage for months 23 through 28. If a Chapter 13 Plan includes periodic 

payments on a secured claim, such payments shall be in equal monthly amounts. In re Benedicto, 

15-28671-RAM, DE# 143. In re Gonzalez, 14-20339-LMI. If a debtor proposes to pay its lender 

a fixed sum in monthly payments, the monthly payments must be in equal amounts. Id. The Court 

has held that the Debtor must make plan payments to Creditors in equal monthly installments.

10. Therefore, the Modified Plan is not in compliance with the requirements of 11 

U.S.C. §1322(b)(3) and 11 U.S.C. §1325(a)(5) and cannot be confirmed.

11. Secured Creditor objects to any plan which does not provide for the ongoing 

monthly mortgage payments that conforms with Claim #7, does not provide for the filed PPFN,

and does not provide for each of the filed Notice of Mortgage Payment Changes.

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12. Secured Creditor hereby reserves the right to supplement this Objection at or prior 

to the hearing.

WHEREFORE, Secured Creditor respectfully requests the entry of an Order which denies 

confirmation of the Modified Plan unless such plan is modified to overcome the objections of 

Secured Creditor as stated herein.

Respectfully Submitted:

/s/ Jennifer Laufgas

Jennifer Laufgas

Bar No.: 56181

Aldridge Pite, LLP

Attorney for Secured Creditor

Fifteen Piedmont Center

3575 Piedmont Road, N.E., Suite 500

Atlanta, GA 30305

Phone: (404) 994-7400

Fax: (888) 873-6147

Email: Jlaufgas@aldridgepite.com

Case 19-25801-LMI Doc 89 Filed 11/10/21 Page 3 of 4
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Objection to Motion 

to Modify Chapter 13 Plan was served electronically or via U.S. Mail, first-class postage prepaid, 

to: 

DEBTOR

Ava C Benjamin

2246 NW 61st Street

Miami, FL 33142-7829

DEBTOR’S ATTORNEY 

Jose A Blanco

Jose A. Blanco, P.A.

jose@blancopa.com

TRUSTEE

(via electronic notice)

Nancy K. Neidich

e2c8f01@ch13miami.com

UNITED STATES TRUSTEE

(via electronic notice)

Office of the US Trustee

USTPRegion21.MM.ECF@usdoj.gov

Dated: November 10, 2021

/s/ Jennifer Laufgas

Jennifer Laufgas

Bar No.: 56181

Aldridge Pite, LLP

Attorney for Secured Creditor

Fifteen Piedmont Center

3575 Piedmont Road, N.E., Suite 500

Atlanta, GA 30305

Phone: (404) 994-7400

Fax: (888) 873-6147

Email: Jlaufgas@aldridgepite.com

Case 19-25801-LMI Doc 89 Filed 11/10/21 Page 4 of 4