Ilya Belotserkovsky v. Bank of America, N.A.

581 F. App'x 824

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 28, 2014
• Docket: 13-1429, 13-14438, 13-14908, 13-15839, 14-10137, 14-11012, 14-11387, 14-11676
• Status: Unpublished

Opinion

PER CURIAM:

The following facts are undisputed. The appellees filed voluntary petitions for bankruptcy under Chapter 7 of the Bankruptcy Code. In their petitions, they reported that their homes were subject to two mortgage liens. In every case, appellant Bank of America, N.A. held the second-priority mortgage liens. In every case, the value of the home was less than the balance of the senior lienholder’s mortgage. Each petitioner sought a determination from the bankruptcy court that Bank of America’s junior mortgage lien was wholly unsecured and, therefore, void under 11 U.S.C. § 506(a) and (d). The bankruptcy court granted each motion. Bank of America appealed in every case and the district court affirmed every time.

Bank of America brought separate appeals to this Court. The appellees filed motions to consolidate the appeals, which this Court granted. Bank of America filed a motion for initial hearing en banc, which this Court denied.

When the district court affirms the bankruptcy court’s order, we review only the bankruptcy court’s decision on appeal. Educ. Credit Mgmt. Corp. v. Mosley, 494 F.3d 1320, 1324 (11th Cir.2007). We review de novo the bankruptcy court’s legal conclusions. Hemar Ins. Corp. of Am. v. Cox, 338 F.3d 1238, 1241 (11th Cir.2003).

In Folendore v. United States Small Bus. Admin., 862 F.2d 1537 (11th Cir.1989), we held that an allowed claim that is wholly unsecured — just as Bank of America’s claims are here — is voidable under the plain language of section 506(d). Id. at 1538-39. Bank of America contends that the Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), abrogated our Folen-dore decision. Bank of America concedes, however, that “[ujnder our prior panel precedent rule, a later panel may depart from an earlier panel’s decision only when the intervening Supreme Court decision is ‘clearly on point.’ ” Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.2007). Bank of America also concedes that our decision in In re McNeal, 735 F.3d 1263 (11th Cir.2012), held that the Supreme Court’s decision in Dewsnwp is not clearly on point because it “disallowed only a ‘strip down’ of a partially secured mortgage lien and did not address a ‘strip off” of a wholly unsecured lien.” Id. at 1265. Our Folendore and McNeal decisions control this case.

AFFIRMED.