Campbell v. Marshall & Ilsley Bank (In re Campbell)

498 B.R. 370, 2013 WL 5429927
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMay 23, 2013
DocketNo. G12-23808-REB
StatusPublished
Cited by1 cases

This text of 498 B.R. 370 (Campbell v. Marshall & Ilsley Bank (In re Campbell)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Marshall & Ilsley Bank (In re Campbell), 498 B.R. 370, 2013 WL 5429927 (Ga. 2013).

Opinion

ORDER ON MOTION TO DETERMINE SECURED STATUS OF CLAIM

ROBERT E. BRIZENDINE, Bankruptcy Judge.

Before the Court is the motion of Debt- or-Movants named above, as filed on December 31, 2012 (Docket Entry No. 17), to determine secured status of the claim of Respondent Marshall & Ilsley Bank a/k/a BMO Harris Bank, which came on for hearing as rescheduled on April 24, 2013. In the motion, which is unopposed, Debtors seek a determination that Respondent is deemed to hold a wholly unsecured claim and its lien interest should be declared void herein pursuant to 11 U.S.C. § 506(d) as supported by recent case authority in this circuit. See McNeal v. GMAC Mortgage LLC (In re McNeal, 477 Fed.Appx. 562 (11th Cir.2012) (unpublished per curiam decision). The claim at issue is secured by a second-priority mortgage hen on certain real property of the Debtors located at 206 Bo Simpson Parkway, McDonough, Georgia. Debtors seek relief in view of the fact that the fair market value of the underlying rental property is less than the amount of a first-priority mortgage lien held by another lender on the same property.

Also before the Court is a prior, separate motion filed by Debtors to determine secured status of the claim of Citimort-gage, Inc. (Docket Entry No. 16) that sets forth a similar fact pattern though regarding a different holder of a second-priority mortgage lien on a different parcel of real property owned by Debtors located at 4425 Green Summers Drive, Cumming, Georgia that serves as their residence. In sum, Debtors have second-priority mortgage liens on both certain rental property they own as well as their residence. Both motions were heard on April 24, 2013, and at the hearing the Court raised an inquiry concerning whether Debtors were entitled to an order voiding two different second-priority liens secured by two different properties, one of which is not their home, or whether relief under Section 506(d) and McNeal, supra, Was properly and solely restricted to the second-priority lien on the real property that serves as their residence. Debtors filed their brief in support on May 2, 2013 (Docket Entry No. 20). Upon review of the argument presented and applicable legal authority, the Court finds and concludes that both liens may be voided consistent with the above-referenced authority, and that the relief requested in each motion will be granted.1

This issue arises following the recent unpublished decision of the Eleventh United States Circuit Court of Appeals in McNeal, supra, where the court allowed a Chapter 7 debtor to “strip” off a wholly unsecured lien on his home, relying on the court’s prior ruling in Folendore v. U.S. Small Business Administration, 862 F.2d 1537 (11th Cir.1989). As a matter of statutory interpretation, this Court observes that the ability of a debtor in a Chapter 7 case to use Section 506(d) in this fashion is not a question of first impression, as the United States Supreme Court addressed this situation in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). In that decision, the Supreme Court held that as it construed Section 506(d), this subsection did not provide au[372]*372thority for a Chapter 7 debtor to “strip down” a lien based on the current fair market value of the subject real property to the remaining available equity, when the associated claim of the creditor was both allowed and “secured by a lien with recourse to the underlying collateral,” 502 U.S. at 415-17, 112 S.Ct. 773.2

In McNeal, the Eleventh Circuit relied on Folendore, as opposed to Dewsnup, as offering the “controlling precedent” on the issue of whether a wholly unsecured claim could be voided under Section 506(d). 477 Fed.Appx. at 564. The circuit found determinative the factual difference between a “strip down” as presented in Dewsnup, where the amount of the secured debt is reduced to the value of the collateral, and a “strip off’ as presented in Folendore, where the lien securing a claim that is completely unsecured is voided in its entirety. Based on this distinction, the court concluded in McNeal that it was bound by the ruling in Folendore (862 F.2d at 1538-39), which preceded Dewsnup, and held that a lien may be avoided using Section 506(d) even if the claim is not disallowed. Id.

This Court shares the reservations expressed by its sister bankruptcy court in the case of Malone v. Citibank NA as Trustee of SACO 1 Trust 2006-7 (In re Malone), 489 B.R. 275 (Bankr.N.D.Ga.2013) (Diehl, B. J.), with respect to the relative weight given to this distinction by the circuit court in construing Section 506(d) under Folendore in view of the intervening Supreme Court holding in Dewsnup, supra. This Court also agrees with the conclusion in Malone, however, that application of the prior panel precedent rule by the Eleventh Circuit in McNeal with respect to Folendore is to be accorded deference herein in terms of its conclusion regarding application of Section 506(d).

Given the Eleventh Circuit’s recent conclusion concerning the appropriate prece-dential breadth of Dewsnup in light of the precise facts confronted in McNeal, therefore, this Court turns to the issue presented in this contested matter regarding the scope of the ruling in McNeal. Simply stated, the question for decision herein is whether under the authority of McNeal, these Chapter 7 Debtors may use Section 506(d) to “strip off’ not only a second-priority mortgage lien on their home, but also another second-priority lien encumbering other real property not used as the site of their residence, but held as rental property.

In their brief, Debtors argue for a full application of Folendore despite its blended reading of Section 506(a) and (d), which, as mentioned above, does not arguably seem to survive under the rationale and holding of Dewsnup, which parsed out the meaning of “allowed” and “secured” within the specific context of each respective subsection. See Malone, 489 B.R. at 282-83; see also Wachovia Mortgage v. Smoot, 478 B.R. 555, 565 (E.D.N.Y.2012). Reading Folendore, however, as extant authority, this Court can find no basis as set forth in the reasoning of that decision or in McNeal for limiting the holding in Folen-dore to real property of a Chapter 7 debt- or used as her residence for purposes of voiding a lien under Section 506.

This Court initially approached McNeal as being narrowly confined to its facts [373]*373where the debtor’s home served as collateral for the lien that debtor sought to have declared void.3 Upon further review of the above statutory and case authority, however, the Court concludes that it is neither the use or character of the underlying real property (i.e. as a home or as a rental property) nor the nature of the lien (i.e. consensual or non-consensual) that is determinative in the lien-stripping inquiry. Moreover, the number of properties for which a debtor seeks to strip off a lien in a Chapter 7 case does not appear to be limited. Instead, as stated by the court in

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Cite This Page — Counsel Stack

Bluebook (online)
498 B.R. 370, 2013 WL 5429927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-marshall-ilsley-bank-in-re-campbell-ganb-2013.