First Union Mortgage Corp. v. Eubanks (In Re Eubanks)

1998 FED App. 0011P, 219 B.R. 468, 40 Collier Bankr. Cas. 2d 18, 1998 Bankr. LEXIS 548, 1998 WL 234206
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedMay 12, 1998
DocketBAP 97-8078, 97-8084
StatusPublished
Cited by124 cases

This text of 1998 FED App. 0011P (First Union Mortgage Corp. v. Eubanks (In Re Eubanks)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Union Mortgage Corp. v. Eubanks (In Re Eubanks), 1998 FED App. 0011P, 219 B.R. 468, 40 Collier Bankr. Cas. 2d 18, 1998 Bankr. LEXIS 548, 1998 WL 234206 (bap6 1998).

Opinions

OPINION

First Union Mortgage Corporation appeals the bankruptcy court’s orders overruling objections and confirming the Debtors’ Chapter 13 plan. The bankruptcy court held that the 1994 enactment of 11 U.S.C. § 1322(c)(2) created an exception to the protection from modification in § 1322(b)(2) that permitted a Chapter 13 plan to bifurcate an underseeured “short term” mortgage on the debtors’ principal residence. We affirm.

I.ISSUE ON APPEAL

Whether 11 U.S.C. § 1322(c)(2) permits bifurcation of an undersecured mortgage on a Chapter 13 debtor’s principle residence when the last payment on the original payment schedule is due before the final payment under the plan.

II.JURISDICTION AND STANDARD OF REVIEW

The United States District Court for the Southern District of Ohio authorized appeals to the Bankruptcy Appellate Panel of the Sixth Circuit. The order confirming this Chapter 13 plan was a final order for purposes of appeal to the BAP. See Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474 (6th Cir.1992).

The appeal presents only a legal question. A bankruptcy court’s conclusions of law are reviewed de novo. See, e.g., National City Bank v. Elliott (In re Elliott), 214 B.R. 148 (6th Cir. BAP 1997) (citations omitted). De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination. In re Schaffrath, 214 B.R. 153, 154 (6th Cir. BAP 1997) (citation omitted). The facts of this case are not disputed.

III.FACTS

On July 6, 1995, the Debtors, Timothy and Tonya Eubanks, executed a $16,400 note in favor of First Union Home Equity Bank, N.A The Note is secured by a second mortgage on the Debtors’ principal residence. The Note requires 60 monthly payments and will máture on July 11, 2000. The first mortgage is held by Waterfield Mortgage Company.

The Debtors filed Chapter 13 on October 16, 1996. First Union filed a proof of claim for $14,526.13. Waterfield filed a proof of claim for its first mortgage for $34,973.61. These two encumbrances total, $49,499.74. The appraised value of the Debtors’ residence is $45,000. First Union is underse-cured by' approximately $4,500.1

The Debtors proposed a Chapter 13 plan that bifurcated First Union’s claim into its allowable secured and unsecured components in accordance with 11 U.S.C. § 506(a).2 First Union’s allowed secured claim (approximately $10,000) would be paid in full with interest pursuant to § 1325(a)(5) under the [470]*470Debtors’ plan. Its unsecured claim (approximately $4,500) would receive the 10% dividend provided for all unsecured claimholders.

First Union objected to confirmation on the ground that bifurcation of its claim was a modification prohibited by § 1322(b)(2). First Union conceded that its claim was the type of “short term” mortgage addressed by the 1994 enactment of § 1322(c)(2); but argued that § 1322(c)(2) created only a limited exception to the anti-modification protection of home mortgages in § 1322(b)(2), allowing the curing of defaults on “short term” mortgages, but not bifurcation.

The bankruptcy court overruled First Union’s objection to confirmation, adopting the well-reasoned analysis of In re Young, 199 B.R. 643 (Bankr.E.D.Tenn.1996). The bankruptcy court held that § 1322(c)(2) creates an exception to the protection from modification in § 1322(b)(2) and authorizes “claim splitting” with respect to the discrete group of home mortgages- described in the new subsection. In re Eubanks, No. 96-57615 (Bankr.S.D.Ohio July 3, 1997). The bankruptcy court confirmed the Debtors’ plan. First Union appealed.

IV. DISCUSSION

Enacted as part of the Bankruptcy Reform Act of 1994, 11 U.S.C. § 1322(c)(2) provides:

(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law—

(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to'section 1325(a)(5) of this title.

Pub.L.- No. 103-393,. 108 Stat. 4106, § 301 (Oct. 22, 1994) (emphasis added) (codified at 11 U.S.C. § 1322(c)(2)).

New § 1322(c)(2) is a statutory exception to the protection from modification afforded most home mortgage lenders in Chapter 13 cases by § 1322(b)(2). The introductory phrase, “[njotwithstanding subsection (b)(2),” “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other séction.” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 1903, 123 L.Ed.2d 572 (1993) (citing Shomberg v. United States, 348 U.S. 540, 547-48, 75 S.Ct. 509, 512-13, 99 L.Ed. 624 (1955)). Interpreting identical “notwithstanding” language in § 1322(b)(5), the Supreme Court acknowledged that these words create a “statutory limitation[ ]” on the rights of mortgage holders in Chapter 13 cases. Nobelman v. American Savings Bank, 508 U.S. 324, 331, 113 S.Ct. 2106, 2110, 124 L.Ed.2d 228 (1993). See also In re Bagne, 219 B.R. 272, 276 (Bankr.E.D.Cal.1998) (“Section 1322(b)(5) provides an exception to [§ 1322(b)(2) ]____ Another exception ... is found in § 1322(c)(2)____ Plainly, this language [‘notwithstanding subsection [1322](b)(2)’] instructs the court to disregard § 1322(b)(2).”).

Section 1322(b)(2), the subsection to which § 1322(c)(2) is an exception, provides:

(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 claims....

11 U.S.C. § 1322(b)(2).

In Chapter 13 cases, § 1322(b) grants debtors broad power to modify the rights of the holders of secured claims.

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1998 FED App. 0011P, 219 B.R. 468, 40 Collier Bankr. Cas. 2d 18, 1998 Bankr. LEXIS 548, 1998 WL 234206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-union-mortgage-corp-v-eubanks-in-re-eubanks-bap6-1998.