Bank of America, NA v. Nemcik (In Re Nemcik)

Eleventh Circuit

Bank of America, NA v. Nemcik (In Re Nemcik)

573 F. App'x 917

CourtCourt of Appeals for the Eleventh Circuit

DecidedSeptember 3, 2014

Docket14-11290

StatusUnpublished

This text of 573 F. App'x 917 (Bank of America, NA v. Nemcik (In Re Nemcik)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bank of America, NA v. Nemcik (In Re Nemcik), 573 F. App'x 917 (11th Cir. 2014).

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Opinion

PER CURIAM:

Bank of America appeals from the district court’s order affirming an order from the bankruptcy court voiding Bank of America’s lien on Kimberley Nemcik’s property in a Chapter 7 bankruptcy proceeding she initiated. Nemcik’s property was subject to two mortgage liens at the time she filed for bankruptcy. The debt owed on the first mortgage exceeded the fair market value of the property. Because the debt secured by the first lien exceeded the value of the property, Bank *918 of America’s junior lien was considered to be wholly “underwater.” This being the case, Nemcik moved the bankruptcy court to “strip off’ or “void” — that is, extinguish in its entirety — Bank of America’s lien.

Bank of America’s response to Nemcik’s motion acknowledged that under binding Eleventh Circuit precedent holding that a wholly underwater junior lien is voidable, the motion should be granted. See Folendore v. U.S. Small Bus. Admin., 862 F.2d 1537, 1538-39 (11th Cir.1989); see also McNeal v. GMAC Mortg., LLC, 735 F.3d 1263, 1265-66 (11th Cir.2012) (per curiam). For that reason, the bankruptcy court granted Nemcik’s motion. Bank of America appealed to the district court, but moved for summary affirmance in light of this Court’s binding precedent. The district court granted the motion, and Bank of America now seeks the appellate review that its motion for summary affirmance was intended to expedite.

Bank of America maintains that Folen-dore and McNeal should be overturned in light of Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), which held that a chapter 7 debtor could not “strip down” a creditor’s lien on real property where the value of the property is less than what is due to be paid to the creditor. Id. at 417, 112 S.Ct. at 778. But in McNeal, we reaffirmed Folendore despite the holding in Dewsnup. McNeal, 735 F.3d at 1265-66. As Bank of America concedes, we are bound as a panel to follow our Court’s decision in McNeal. We therefore AFFIRM.

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PER CURIAM:

Bank of America appeals from the district court’s order affirming an order from the bankruptcy court voiding Bank of America’s lien on Kimberley Nemcik’s property in a Chapter 7 bankruptcy proceeding she initiated. Nemcik’s property was subject to two mortgage liens at the time she filed for bankruptcy. The debt owed on the first mortgage exceeded the fair market value of the property. Because the debt secured by the first lien exceeded the value of the property, Bank *918 of America’s junior lien was considered to be wholly “underwater.” This being the case, Nemcik moved the bankruptcy court to “strip off’ or “void” — that is, extinguish in its entirety — Bank of America’s lien.

Bank of America’s response to Nemcik’s motion acknowledged that under binding Eleventh Circuit precedent holding that a wholly underwater junior lien is voidable, the motion should be granted. See Folendore v. U.S. Small Bus. Admin., 862 F.2d 1537, 1538-39 (11th Cir.1989); see also McNeal v. GMAC Mortg., LLC, 735 F.3d 1263, 1265-66 (11th Cir.2012) (per curiam). For that reason, the bankruptcy court granted Nemcik’s motion. Bank of America appealed to the district court, but moved for summary affirmance in light of this Court’s binding precedent. The district court granted the motion, and Bank of America now seeks the appellate review that its motion for summary affirmance was intended to expedite.

Bank of America maintains that Folen-dore and McNeal should be overturned in light of Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), which held that a chapter 7 debtor could not “strip down” a creditor’s lien on real property where the value of the property is less than what is due to be paid to the creditor. Id. at 417, 112 S.Ct. at 778. But in McNeal, we reaffirmed Folendore despite the holding in Dewsnup. McNeal, 735 F.3d at 1265-66. As Bank of America concedes, we are bound as a panel to follow our Court’s decision in McNeal. We therefore AFFIRM.

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573 F. App'x 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-america-na-v-nemcik-in-re-nemcik-ca11-2014.

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