In re Clark

738 F.2d 869, 10 Collier Bankr. Cas. 2d 1280, 1984 U.S. App. LEXIS 20750
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 6, 1984
DocketNo. 83-2269
StatusPublished
Cited by96 cases

This text of 738 F.2d 869 (In re Clark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Clark, 738 F.2d 869, 10 Collier Bankr. Cas. 2d 1280, 1984 U.S. App. LEXIS 20750 (7th Cir. 1984).

Opinion

PRENTICE H. MARSHALL, District Judge.

The question presented in this appeal is whether a debtor who has filed a petition in bankruptcy under chapter 13 of the Bankruptcy Code is entitled under the Code to “cure” a default on a residential mortgage loan though he filed- the bankruptcy petition only after a state court had entered a judgment of foreclosure. The district court, 32 B.R. 711, on appeal from a final order confirming the debtors’ plan, held that he cannot. 'We reverse.

On September 4, 1974, appellants Hugh and Joanne Clark obtained a loan from appellee Federal Land Bank of St. Paul (“Bank”) secured by a first mortgage of appellants’ farm in Jackson County, Wisconsin. The farm included a residence that appellants used until the winter of 1981-82 when their gas service was cut off due to nonpayment of their bill, leading to frozen pipes and resultant water damage to the home.

On September 3, 1981, the Bank commenced a foreclosure action against the Clarks in the Circuit Court of Jackson County, Wisconsin. The Clarks did not respond to the lawsuit. On February 2,1982, the circuit court found pursuant to Wis. Stat.Ann. § 846.102 (West 1977 & Supp. 1983)1 that appellants had abandoned the premises and that they had made no homestead claim under id. § 846.11,2 and it entered a judgment of foreclosure. Under § 846.102, foreclosure sale was authorized any time after April 2, 1982.

On May 27,1982, before sale of the property and before notice of sale was given, the Clarks filed a petition in bankruptcy under chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301-30 (1982). The plan confirmed by the bankruptcy court pursuant to id. § 1325 on October 15, 1982 provides for payments over a period of thirty-six months to cure prior defaults in payment [871]*871on the mortgage loan while maintaining current payments. The bankruptcy court found that the bank was adequately protected. Id. § 1325(a)(5)(B)(ii). It determined that the value of the property was over $130,000 and found that the bank’s security interest for its claim of approximately $24,000 was junior only to unpaid taxes and a mechanic’s lien of approximately $5,000.

The Bank appealed to the district court, arguing that mortgagors of a farm including a residence are not entitled under chapter 13 to cure their defaults and restore their mortgage payments once a judgment of foreclosure is entered against them. The district court accepted the Bank’s position and on June 16, 1983 entered an order reversing the bankruptcy court’s approval of the plan and remanding the case to the bankruptcy court. This appeal followed.

Despite the judgment of foreclosure, the Clarks still had an interest in the property at the time they filed their petition in bankruptcy, such that the property was part of the estate under 11 U.S.C. §§ 541 and 1307. Under Wisconsin law, a mortgagee has only a lien on the mortgaged property even after a judgment of foreclosure is entered. Neither equitable nor legal title passes until the foreclosure sale is held. A judgment of foreclosure “does little more than determine that the mortgagor is in default, the amount of principal and interest unpaid, the amounts due to plaintiff mortgagee for taxes, etc____ The judgment does not destroy the lien of the mortgage but rather judicially determines the amount thereof.” Marshall & Ilsley Bank v. Greene, 227 Wis. 155, 164, 278 N.W. 425, 429 (1938).3 See also Bank of Commerce v. Waukesha County, 89 Wis.2d 715, 723, 279 N.W.2d 237, 241 (1979) (Wisconsin follows “lien” theory of mortgages); In re Lynch, 12 B.R. 533, 534-35 (Bankr.W.D.Wis.1981) (mortgagor loses interest in property only after foreclosure sale).

The curing of defaults in chapter 13 cases is governed by § 1322, the pertinent parts of which provide that

(b) 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;
(3) provide for. the curing or waiving of any default;
(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due;

11 U.S.C. § 1322(b) (1982).

Under § 1322(b)(2), if what the bankruptcy court did was a modification of the Bank’s rights, it was not permitted, as the Bank’s claim was secured only by its security interest in the Clarks’ property, which includes their principal residence.4 The Clarks argue that the bankruptcy court merely permitted them to cure the default, which they argue was permitted under (b)(5). The Bank responds that (b)(5) was unavailable here, for reasons we will discuss in a moment. We will address these issues in turn.

The terms “modify” and “cure” are nowhere defined in the Bankruptcy Code. [872]*872However, it is clear that Congress intended “cure” to mean something different from “modify”; otherwise, in light of (b)(2), (b)(3) would be superfluous. It is well established that a court should avoid a construction of a statute that renders a portion of the statute superfluous. See Bird v. United States, 187 U.S. 118, 124, 23 S.Ct. 42, 44, 47 L.Ed. 100 (1902); Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir.1979); United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir.1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969).

Absent a persuasive reason to the contrary, we are to attribute to the words of a statute their common meaning. See, e.g., NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981); Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981). The common meaning of “cure” is to remedy, restore, remove, or rectify, see Webster’s Third International Dictionary 555 (1971), and as the term relates to defaults, “cure” means to restore matters to the status quo ante. See, e.g., Jack LaLanne Biltmore Health Spa, Inc. v. Builtland Partners, 99 A.D.2d 705, 471 N.Y.S.2d 854, 856 (1984) (default on lease);

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Bluebook (online)
738 F.2d 869, 10 Collier Bankr. Cas. 2d 1280, 1984 U.S. App. LEXIS 20750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-clark-ca7-1984.