Thursday, June 19, 2014
11th Circuit: §506(d) "Strip-Offs" Part Deux
What Has Gone Before
Back in April, I posted about the U.S. Supreme Court's denial of certiorari on an unpublished order of the 11th Circuit Court of Appeals, in which the 11th Circuit followed a previous unpublished decision that allowed wholly unsecured liens to be "stripped off" in Chapter 7, using 11 U.S.C. §§506(a) & (e). As I discussed in that post, the 11th Circuit interpreted Dewsnup v. Timm, 502 U.S. 410 (1992) to be limited to partially secured first mortgages, and followed its own precedent -- handed down before Dewsnup v. Timm -- in ruling that 11 U.S.C. §506 could be used to void wholly unsecured mortgages and liens in Chapter 7. See Folendore v. United States Small Bus. Admin., 862 F.2d 1537 (11th Cir. 1989).
I also noted that the 11 Circuit stood as an outlier on this issue, and that the other circuits reaching the same issue had ruled that Dewsnup v. Timm controlled (and forbade) the use of §506 against wholly unsecured liens in Chapter 7. My prior blog post is here: http://impudentbankruptcylawyer.blogspot.com/2014/04/now-in-play-506d-strip-offs-in-chapter-7.html
The 11th Circuit Speaks Again
The 11th Circuit, on June 18, 2014, published a decision in which it adopted the majority view allowing debtors to use a "Chapter 20" to strip off liens. The decision is Wells Fargo Bank, N.A. v. Scantling (In re Scantling), ___ F.3d ____ (11th Cir. Docket No 13-10558, 6/18/14), and you can read it here: http://www.ca11.uscourts.gov/opinions/ops/201310558.pdf.
You won't find "Chapter 20" in the Bankruptcy Code; bankruptcy lawyers use it as a term of art to describe a two-step process used to strip off unsecured junior liens and mortgages. First, the debtor files a Chapter 7 bankruptcy and obtains a discharge of the underlying promissory note and other debt. Second, immediately after the Chapter 7 discharge, the debtor files a Chapter 13, in which the debtor files a plan (usually with token payments for lien creditors) and files a motion, under 11 U.S.C. §506, to determine that the liens remaining after the Chapter 7 are void because they are wholly unsecured.
Here's the trick: the debtor in these circumstances does not care that he or she cannot get a "discharge" in Chapter 13; the debtor's sole purpose is to use his or her Chapter 13 case to void and "strip off" the unsecured mortgages. 11 U.S.C. §1328(f) mandates a four year waiting period (after the date the debtor filed the prior Chapter 7) for filing a Chapter 13 in which the debtor seeks a discharge. But -- nothing in the Bankruptcy Code prohibits the debtor from filing a Chapter 13 for another purpose in that four year waiting period, so long as the debtor can confirm a plan according to the dictates of Chapter 13.
Wells Fargo argued that the Chapter 13 plan and discharge must go hand-in-hand. However, a Chapter 13 plan does more than secure a discharge after all its payments are completed: it allows the debtor to cure mortgage defaults; pay off income tax debt over five years, without further accrual of interest and penalties; and allows the avoidance of wholly unsecured mortgages, even on the debtor's primary residence. 11 U.S.C. §1322(b)(2) states that the plan may: "modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims." Although the SCOTUS has ruled that Chapter 13 debtors cannot use §506(a) to modify a partially secured mortgage on a residence, Nobelman v. American Savings Bank, 508 U.S. 324 (1993), most circuits -- including the 11th Circuit -- have ruled that a §506(a) valuation can be combined with §1322(b)(2) provision in a plan to void a wholly unsecured mortgage. See Tanner v. Firstplus Financial, Inc. (In re Tanner), 217 F.3d 1357 (11th Cir. 2000). In other words, if there is no equity in the residence to secure any part of the mortgage, the mortgage becomes a wounded gazelle on the African savannah, and the Chapter 13 plan is the lion.
The 11th Circuit recognized Chapter 13's versatility and thus followed the majority of bankruptcy courts, district courts and circuit courts in allowing Ms. Scantling's "Chapter 20" and her plan to void Well Fargo's second and third mortgages on her residence.
Of particular interest is footnote 5 of the decision, in which the 11th Circuit stated:
We are also mindful of the recent unpublished opinion in Wilmington Trust, National 5 Ass’n v. Malone (In re Malone), No. 13-13688, 2014 WL 1778982 (11th Cir. May 6, 2014), which was decided after oral argument in the instant case, in which a panel of this court recently found it was bound by prior published decisions and affirmed a decision by the bankruptcy court, in a Chapter 7 proceeding, that allowed a debtor to strip off a worthless second priority lien.
The Bottom Line
Debtors in the 11th Circuit have the best of both worlds: if they are daring, they can try to strip off their wholly unsecured mortgages in their Chapter 7 case (and now, those debtors have a footnote in a published opinion to cite). If they are not daring (and have the funds for filing two bankruptcy cases), they can take the safer route of a "Chapter 20" to get rid of their second or third mortgage.
©Kevin C. McGee 2014