IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF TENNESSEE – NASHVILLE DIVISION

IN RE: SHERYL LYNN PIGG XXX-XX-2683 1217-A GOODLOE DRIVE NASHVILLE, TN 37215 DEBTOR, SHERYL LYNN PIGG, PLAINTIFF, VS. BAC HOME LOANS SERVICING, LP C/O CT Corporation System 800 S Gay Street Suite 2021 Knoxville, TN 37929 USA BANK OF AMERICA, N.A. 9000 Southside Blvd. Building 700 Jacksonville, FL 32256 BELLE MANAGEMENT CORP. C/O Dana Tiblier Suite 201 7091 Old Harding Pike Nashville, TN 37221 DEFENDANT.

CASE NO. 10-10168-GP3-7 CHAPTER 7 JUDGE GEORGE C. PAINE II ADV. PROC. NO. 3:10-ap-00642

AMENDED

COMPLAINT TO AUTHORIZE CONVEYANCE OR COMPEL FORECLOSURE AND

ASSUMPTION OF OBLIGATION TO PAY HOMEOWNERS ASSOCIATION PARTIES JURISDICTION VENUE Sheryl Lynn Pigg, by and through counsel, for cause of action says:

1. This adversary proceeding is brought pursuant to Bankruptcy Rule 7001 of Title 11, United States Code. This is a core proceeding over which the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A) & (O).

2. This is an action arising in a bankruptcy case under Title 11. Venue is proper in this

court pursuant to 28 U.S.C. § 1409.

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CAUSE OF ACTION

3. The Debtor, Sheryl Lynn Pigg, filed a voluntary petition in bankruptcy with this Court on September 21, 2010. She listed on Schedule A attached to her petition her fee simple ownership of one piece of real estate, a condominium at 8563 Sawyer Brown Road, River Plantation Section 10, Nashville, Davidson County, TN 37221 (Parcel ID 142 13 0C 037.00). This real estate is hereinafter referred to as “condominium.”

4. The Defendants BAC Home Loans Servicing, LP and Bank of America, N.A. were listed

on Schedule D attached to the Debtor’s petition as the lender holding a first mortgage on the condominium. These Defendants are hereinafter referred to as BAC/Bank of America.

5. The Defendant Belle Management Corp. was listed on Schedule G attached to the

Debtor’s petition as a creditor with which the Debtor had an executory contract. Belle Management is an agent for River Plantation, Section 10, and is the management arm of the homeowners association for the development in which the condominium is located.

6. In the Nashville Flood, May 1 and 2, 2010, the first floor of the condominium’s two floors

was completely inundated by water. The water level reached the ceiling of the first floor destroying the interior of the condominium and its contents. The Debtor was rescued along with some of her neighbors from the second floor level on Sunday, May 2. The condominium was unfit for occupancy. The Debtor moved to her current address and during the following weeks decided not to restore and move back to the condominium. The Debtor did not have flood insurance.

7. The Debtor salvaged what she could. The furniture that was destroyed was removed

from the condominium. The wallboard and insulation were removed from the condominium in keeping with the instructions of the homeowners association.

8. The Debtor estimated on Schedule D attached to her voluntary petition that the payoff

balance owed BAC/Bank of America was $97,498.48. 9. The current value of the condominium is approximately $55,000.00. 10. On the “Chapter 7 Individual Debtor’s Statement of Intention” attached to the Debtor’s

voluntary petition, the Debtor indicated that it was her intention to surrender the condominium.

11. The Trustee has determined there is no equity in the condominium and has determined

it to be a burdensome asset of the Bankruptcy Estate. 12. An organization identifying itself as BAC Field Services Corporation has changed the

locks on the condominium and placed a notice in the front window of the condominium which states in part as follows: To protect the interest of the lender and in accordance with the terms of the security instrument, the property has been secured to prevent entry by unauthorized persons. The notice also includes an emergency phone number and the following statement regarding ownership of the condominium: BAC Field

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Services Corporation does not own the property and should not be contacted regarding its sale or rental… Photographs of the notice are attached hereto as Exhibit 1.

13. The Debtor can no longer gain access to the condominium. 14. The Debtor has not made a payment to BAC/Bank of America on her mortgage since

April 2010. The mortgage note is in default. 15. The Debtor has abandoned the property. The BAC/Bank of America, N.A. deed of trust

of record as Document # 20011212-0137352 Register’s Office of Davidson County, Tennessee and recorded December 12, 2001 states as follows at Paragraph 9(c) regarding the lender’s rights when the property is abandoned: …the 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 protecting and/or assessing the value of the property, and securing and/or repairing the property.

16. BAC/Bank of America is clearly within its rights to take control of the condominium and

secure it. 17. The Debtor has neither occupied nor received any benefit from the condominium since

the date of the filing of her bankruptcy. 18. The relationship between the Debtor and Belle Management Corp. is contractual. Both

parties to the contract have ongoing obligations to the other. The Debtor is compelled to pay association dues which she has not done since the filing of this bankruptcy and the association is compelled to provide services. It is therefore an executory contract.

19. The services to be provided by Belle Management to occupants of River Plantation

condominiums include but are not limited to: maintenance, signage, landscaping and security.

20. BAC/Bank of America is benefitted each day by the services provided by Belle

Management and the homeowners association. 21. By letter dated September 30, 2010, counsel for Belle Management Corp., pointed out

to Debtor’s counsel, John C. McLemore, the provisions of 11 U.S.C. § 523(a)(16) and stated the homeowners association expects to be paid dues accumulating after the filing of the bankruptcy for as long as the Debtor is the titled owner of the property.

22. Thus far, Belle Management Corp. has made no attempt to collect this alleged debt

from the Debtor, but such an effort would interfere with the Debtor’s right to a fresh start following the discharge of the debts on which she was obligated at the time of the filing of her bankruptcy.

23. The Defendants BAC/Bank of America have had more than adequate opportunity since

May 2, 2010 to declare the Debtor’s obligation to them in default and foreclose. Neither has attempted foreclosure.

24. The Defendants BAC/Bank of America are reluctant to foreclose because they know

the foreclosing party will more than likely be the successful bidder at the foreclosure

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sale, take title to horribly distressed property and immediately become responsible for real estate taxes and homeowners association fees.

25. By motion filed October 8, 2010, Robert H. Waldschmidt rejected the executory contract

between the Debtor and Belle Management Corp. Belle Management has objected to the rejection.

WHEREFORE, the Plaintiff Sheryl Lynn Pigg prays that the Court enter an order

authorizing her to execute a quitclaim deed to the condominium unit at 8563 Sawyer Brown Road, River Plantation Section 10, Nashville, Davidson County, TN 37221 (Parcel ID 142 13 0C 037.00) to BAC Home Loans Servicing, LP and/or Bank of America as a conveyance in lieu of foreclosure.

The Plaintiff further prays that the Court authorize her to date the quitclaim deed September

21, 2010, the date of the filing of her Chapter 7 Bankruptcy petition.

The Plaintiff further prays that the Court order the date of delivery of the deed and its acceptance by BAC Home Loans Servicing, LP and/or Bank of America to be September 21, 2010.

The Plaintiff further prays that should the Debtor be required to certify on the deed the

actual consideration for the transfer that the Court set the consideration at $10.00.

In the alternative the Plaintiff prays that the Court enter an Order directing Bank of America and/or BAC Home Loans Servicing, LP to foreclose on the condominium within 60 days of the date of the Court’s order, and

Further Order that Bank of America and/or BAC Home Loans Servicing, LP are liable for

the payment of all homeowners association fees and assessments due by the owner of the condominium unit at 8563 Sawyer Brown Road, River Plantation Section 10, Nashville, Davidson County, TN 37221 (Parcel ID 142 13 0C 037.00) since September 21, 2010 through and including the date of foreclosure.

The Plaintiff prays for such other and further relief as may be just.

DATED this 24th day of January, 2011. Respectfully submitted, GARFINKLE, McLEMORE & YOUNG, PLLC /s/ John C. McLemore John C. McLemore, Tn. Bar No. 3430 2000 Richard Jones Road, Suite 250 P.O. Box 158249 Nashville, Tennessee 37215-8249 (615) 383-9495 (phone) (615) 292-9848 (fax) jmclemore@gmylaw.com Attorneys for Debtor

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