Abdosh v. IndyMac Mortgage Corp. (In re Abdosh)

513 B.R. 882
CourtUnited States Bankruptcy Court, D. Maryland
DecidedJuly 30, 2014
DocketBankruptcy No. 13-29298PM; Adversary No. 14-00190PM
StatusPublished
Cited by2 cases

This text of 513 B.R. 882 (Abdosh v. IndyMac Mortgage Corp. (In re Abdosh)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abdosh v. IndyMac Mortgage Corp. (In re Abdosh), 513 B.R. 882 (Md. 2014).

Opinion

MEMORANDUM OF DECISION

PAUL MANNES, Bankruptcy Judge.

This adversary proceeding follows on the heels of this court’s decision in the case of Akwa v. Residential Credit Solutions, Inc. (In re Akwa), 2014 WL 3566812 (Bankr.D.Md.2014), where, as here, the debtor sought to strip down or bifurcate the claim of the secured creditor. In this bankruptcy case under Chapter 13 filed November 14, 2013, the Debtors’ Schedules filed December 12, 2013, valued their residence at $58,000.00 and listed encumbrances held by IndyMac Mortgage Corp. (“IndyMac”) securing a debt of $135,000.00 and a junior lien held by Suntrust Bank (“Suntrust”) securing a debt of $11,819.95.1 The Defendant, Ocwen Loan Servicing, LLC (“Ocwen”), services the IndyMac debt. Ocwen and Suntrust filed proofs of claim in the amounts of $137,180.16 and $11,412.28, respectively.

In the complaint filed March 29, 2014, the Plaintiffs sought avoidance of the Sun-trust lien in its entirety and reduction of [884]*884the debt secured by the IndyMac lien to $58,000.00. Suntrust did not file a response to the complaint. On July 11, 2014, the court entered a judgment by default as to Suntrust pursuant to the authority of such cases as In re Millard, 414 B.R. 73, 76-77 (D.Md.2009) aff'd 404 Fed.Appx. 713 (C.A.4 2011). As the district court pointed out in Millard:

A. The Interplay of 11 U.S.C. §§ 506(a) and 1322(b)(2)
In Nobelman [v. American Savings Bank], the Supreme Court analyzed the interplay between claim-bifurcation under § 506(a) and the anti-modification clause of § 1322(b)(2) to determine whether a debtor could bifurcate a single, undersecured residential mortgage claim into secured and unsecured components pursuant to § 506(a).

Section 506(a), which applies to Chapter 13 plans pursuant to 11 U.S.C. § 103, states that

(a)(1) An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest is less than the amount of such claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.

11 U.S.C. § 506(a). Thus, under § 506(a), “an allowed claim secured by a lien on the debtor’s property is a secured claim to the extent of the value of the property; to the extent the claim exceeds the value of the property, it is an unsecured claim.” Nobelman, 508 U.S. at 328, 113 S.Ct. 2106. However, § 1322(b)(2), which applies only to Chapter 13 bankruptcy, provides that

(b) Subject to subsections (a) and (c) of this section, 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 ...
11 U.S.C. § 1322(b)(2). The Nobelman Court concluded that where a creditor’s lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured component. Nobelman, 508 U.S. at 332, 113 S.Ct. 2106; see Johnson [v. Asset Management Group, LLC], 226 B.R. [364] at 366 [ (D.Md.1998) ].

Id. at 76.

Ocwen filed this Motion to Dismiss Complaint. By virtue of 11 U.S.C. § 1322(b)(2), Ocwen argues that its claim cannot be bifurcated into secured and unsecured components and, on that account, the Complaint must be dismissed. The following sections of the Bankruptcy Code are pertinent to this issue:

11 U.S.C. § 506. Determination of secured status
[885]*885(a)(1) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to set-off, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim[.]
11 U.S.C. § 1322. Contents of plan
(b) Subject to subsections (a) and (c) of this section, the plan may—
(2) 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 elaims[.]
11 U.S.C. § 101. Definitions
(13A) The term “debtor’s principal residence”—
(A) means a residential structure if used as the principal residence by the debtor, including incidental property, without regard to whether that structure is attached to real property; and
(B) includes an individual condominium or cooperative unit, a mobile or manufactured home, or trailer if used as the principal residence by the debt- or.
(27B) The term “incidental property” means, with respect to a debtor’s principal residence—
(A) property commonly conveyed with a principal residence in the area where the real property is located;
(B) all easements, rights, appurtenances, fixtures, rents, royalties, mineral rights, oil or gas rights or profits, water rights, escrow funds, or insurance proceeds; and

(C)all replacements or additions

The question presented is whether certain provisions of the Deed of Trust securing Ocwen’s principal ensnare other collateral so that the loan is secured by more than the Debtors’ principal residence.

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Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdosh-v-indymac-mortgage-corp-in-re-abdosh-mdb-2014.