In re Cain

513 B.R. 316, 71 Collier Bankr. Cas. 2d 1720, 2014 Bankr. LEXIS 3060, 2014 WL 3397702
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedJuly 14, 2014
DocketBAP No. 13-8045
StatusPublished
Cited by5 cases

This text of 513 B.R. 316 (In re Cain) 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
In re Cain, 513 B.R. 316, 71 Collier Bankr. Cas. 2d 1720, 2014 Bankr. LEXIS 3060, 2014 WL 3397702 (bap6 2014).

Opinion

OPINION

MARIAN F. HARRISON, Bankruptcy Judge.

Debtor Andrea M. Cain (the “Debtor”) appeals the August 9, 2013 order of the United States Bankruptcy Court for the Northern District of Ohio (the “Bankruptcy Court”) denying the Debtor’s unopposed Motion to Avoid the Mortgage Lien of Amerifirst Home Improvement Financial Company (“Amerifirst”). For the reasons that follow, the Panel REVERSES the Bankruptcy Court’s denial of the Debt- or’s Motion to Avoid the Mortgage Lien of Amerifirst.

I. ISSUES ON APPEAL

The Debtor raises two issues in this appeal. The central and determinative issue is whether a debtor may strip off a wholly unsecured, inferior mortgage lien on the debtor’s primary residence in a Chapter 13 case filed less than four years after having received a Chapter 7 discharge. The second issue is whether a bankruptcy court is bound by the terms of a confirmed plan.

II. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit Court (“BAP”) has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and no party has timely elected to have this appeal heard by [318]*318the district court. 28 U.S.C. § 158(b)(6), (e)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (quotation marks and citations omitted). “[T]he concept of finality applied to appeals in bankruptcy is broader and more flexible than the concept applied in ordinary civil litigation.” Millers Cove Energy Co., Inc. v. Moore (In re Millers Cove Energy Co., Inc.), 128 F.3d 449, 451 (6th Cir.1997) (citations omitted). “This finality requirement is considered in a more pragmatic and less technical way in bankruptcy cases than in other situations .... In bankruptcy cases, a functional and practical application [of Section 158] is to be the rule.” Lindsey v. O’Brien, Tanski, Tanzer & Young Health Care Providers of Connecticut (In re Dow Corning Corp.), 86 F.3d 482, 488 (6th Cir.1996) (quotation marks and citation omitted). In bankruptcy cases, an order that finally disposes of discrete disputes within a larger case may be appealed immediately. Id. It appears that the Bankruptcy Court’s order denying the Debtor’s motion to avoid Am-erifirst’s mortgage lien is a final order because it was entered after the completion of the Debtor’s confirmed plan and the closing of her case without a discharge. No other issues remain in the Bankruptcy Court.

There are no factual disputes, and the Bankruptcy Court denied the Debtor’s motion based on conclusions of law. Conclusions of law are reviewed de novo. Corzin v. Fordu (In re Fordu), 209 B.R. 854, 857 (6th Cir. BAP 1997). “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007) (citation omitted). Essentially, the reviewing court decides the issue “as if it had not been heard before.” Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions, Inc.), 338 B.R. 300, 302 (6th Cir. BAP 2006) (citation omitted). “No deference is given to the trial court’s conclusions of law.” Id.

III. FACTS

The Debtor first filed a Chapter 7 petition and received a discharge on February 1, 2008. On July 3, 2008, the Debtor filed the present Chapter 13 case to pay an outstanding auto loan and tax obligations, to cure the default on her first mortgage, and to avoid a wholly unsecured second mortgage on her residence. The Debtor’s Amended Chapter 13 Plan, dated August 21, 2008, was confirmed on September 18, 2008. The confirmed Chapter 13 plan included the following provision:

Debtors will avoid the mortgage and/or judgment liens of Amerifirst Home Improvement Finance, Squires Construction Company, & Ohio Department of Taxation, which [are] wholly unsecured pursuant to 11 U.S.C. §§ 506(a), 1322(b)(2) & 1325(a)(5)(B), and which wholly impairs Debtors’ exemption in their residence home pursuant to 11 U.S.C. § 522(f). Any unsecured claim filed by said creditor(s) shall be disallowed as discharged in Debtors’ Chapter 7 Bankruptcy Case No. 08-10687 filed February 1, 2008 unless otherwise allowed by a separate order of the Court.

Because the Debtor had received a Chapter 7 discharge within the preceding four years, the Debtor was not eligible for a discharge in her Chapter 13 case. See 11 U.S.C. § 1328(f)(1). Accordingly, upon [319]*319completion of the Debtor’s payments under the plan, the Chapter 13 Trustee filed his Motion for Order Releasing Wages and Closing Case Without a Discharge. The Chapter 13 Trustee’s motion was granted on May 6, 2013. On May 17, 2013, the Debtor filed a Motion to Avoid Mortgage Lien on Real Estate against Amerifirst in order to effectuate the provisions of her confirmed Chapter 13 Plan and to avoid Amerifirst’s second mortgage lien on her residence. At the time of the Chapter 13 filing, the Debtor’s residence was valued at not more than $100,800. The residence was encumbered by Everhome Mortgage Company’s first mortgage in the amount of $106,306.38 and by Amerifirst’s second mortgage in the amount of $9,415.28.

No party-in-interest objected to the Debtor’s Motion to Avoid Mortgage Lien on Real Estate, however, the Bankruptcy Court denied the motion by order, dated August 9, 2013. The Bankruptcy Court held:

The lien stripping power of 11 U.S.C. § 506 is unavailable to Debtor. She received a Chapter 7 discharge within four years of filing this case and is therefore ineligible for a Chapter 13 discharge. 11 U.S.C. § 1328(f)(1). Pursuant to § 1325(a)(5), the lien stays in place until discharge or payment of the underlying debt. Because the Debtor is ineligible for a discharge, the mortgage lien will stay in place until payment of the underlying debt.

IV. DISCUSSION

The determinative issue in this appeal concerns the interplay between various provisions of the Bankruptcy Code affecting “Chapter 20” debtors.1

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Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 316, 71 Collier Bankr. Cas. 2d 1720, 2014 Bankr. LEXIS 3060, 2014 WL 3397702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cain-bap6-2014.