In re Cruz

152 B.R. 866, 1993 Bankr. LEXIS 571, 1993 WL 127706
CourtDistrict Court, S.D. New York
DecidedApril 13, 1993
DocketBankruptcy No. 92-B-21052
StatusPublished
Cited by2 cases

This text of 152 B.R. 866 (In re Cruz) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cruz, 152 B.R. 866, 1993 Bankr. LEXIS 571, 1993 WL 127706 (S.D.N.Y. 1993).

Opinion

DECISION ON MOTION FOR AN ORDER DETERMINING THE EXTENT OF THE VALUE OF A SECURED CLAIM AND CROSS-MOTION TO DISMISS CASE OR LIFT THE AUTOMATIC STAY

HOWARD SCHWARTZBERG, Bankruptcy Judge.

FACTUAL BACKGROUND

The debtor filed a petition under Chapter 13 of the Bankruptcy Code on June 1, 1992 and scheduled Citibank as a first mortgagee. The debtor and a relative had purchased a three-family house located in Valley Cottage, New York. The house is the debtor’s principal residence.

In connection with the debtor’s purchase of the property, she signed a purchase money mortgage in favor of Citibank in the principal amount of $252,000.00. The loan is amortized over 30 years and is payable in equal installments until November 1, 2017. The current outstanding principal balance on the mortgage is $255,460.17.

Citibank filed a proof of claim in the amount of $298,146.04. Mortgage arrears total $49,909.75. The parties agree that the present market value of the property is $240,000.00.

Citibank contends that even if bifurcation of its claim were permitted, the mortgage arrears portion of its claim must be paid in full to reinstate the mortgage. Citibank reasons that before commencing with the bifurcation process, the mortgage arrears, including accrued interest, the escrow deficit and additional costs should be deducted from Citibank’s claim and paid in full before determining the amount subject to bifurcation.

DISCUSSION

Whether or not to authorize a bifurcation of Citibank’s claim in accordance with 11 U.S.C. § 506(a) and (d) is no longer an open issue in the Second Circuit. In harmonizing the application of 11 U.S.C. §§ 506(a) and 1322(b)(2), the Bellamy court held that bifurcation of a residential mortgagee’s claim secured solely by an interest in the debtor’s residence in a Chapter 13 case was not an improper modification of the mortgagee’s total claim because the secured portion of the claim, as determined under 11 U.S.C. § 506(a), was not modified. In re Bellamy, 962 F.2d 176, 180 (2d Cir. 1992). This holding did not implicate the Supreme Court’s decision in Dewsnup v. Timm, — U.S. -, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), which did not involve a [868]*868Chapter 13 case or the application of 11 U.S.C. § 1322(b)(2). The Supreme Court stated that it took no position on the meaning of the words “allowed secured claim” in other provisions of the Bankruptcy Code not involving Chapter 7 cases. Accordingly, in the Second Circuit, bifurcation of a residential mortgage solely secured by the debtor’s principal residence is permissible. Therefore, Citibank’s cross-motion to dismiss the Chapter 13 petition on the ground the bifurcation is impermissible, is denied.

Prepetition Arrears

The primary issue for determination following a bifurcation under 11 U.S.C. § 506(a) involves the treatment of the mortgage arrears. A Chapter 13 debtor who wishes to reinstate a stripped down residential mortgage that comes due beyond the life of the plan is required to satisfy 11 U.S.C. § 1322(b)(5)1 and must cure all defaults within a reasonable time, maintaining payments while the case is pending on both secured and unsecured claims where final payments are due beyond the length of the plan. Thus, three types of payments are called for: (1) curing of defaults in full, (2) scheduled mortgage payments until the secured claim is fully paid and (3) percentage payments on unsecured claims not less than the amount that would be paid on such claims if the estate were liquidated under Chapter 7 of the Code. 11 U.S.C. § 1325(a)(4).

The debtor argues that if this case were liquidated under Chapter 7 of the Code, Citibank would realize the fair market value of its secured claim, which the parties agree is $240,000.00. • Therefore, Citibank will receive more under the Chapter 13 plan because the debtor proposes to allocate the mortgage arrears of $49,909.75 to the unsecured portion of the mortgage, and Citibank will receive a percentage payment on its unsecured deficiency claim. The debtor reasons that this treatment would give Citibank more than it would receive in a Chapter 7 liquidation, with the result that “everybody wins — at least something.” Debt- or’s Reply Memorandum, at 8.

The flaw in the debtor’s position is that by allocating the mortgage arrears to an unsecured status, she reads out of the Code 11 U.S.C. § 1322(b)(5), which requires the curing of any mortgage defaults within a reasonable time. If the debtor wishes to reinstate the mortgage default, the debtor must satisfy the protection afforded mortgagees under 11 U.S.C. § 1322(b)(5) and may not allocate the mortgage arrears to the unsecured mortgage deficiency. In re Richards, 151 B.R. 8, 18 (Bankr.D.Mass. 1993); In re Session, 128 B.R. 147, 152 (Bankr.E.D.Tex.1991); In re Hayes, 111 B.R. 924, 927 (Bankr.D.Or.1990). As stated in Bellamy:

The debtor must cure arrearages within a reasonable time, see § 1322(b)(5), but need make secured mortgage payments only until the secured claim is fully paid.

In re Bellamy, 962 F.2d at 185 (citations omitted).

It is similarly impermissible to allocate the mortgage arrears to the secured portion of the bifurcated claim where scheduled payments will continue beyond the length of the plan. Sapos v. Provident Institution. of Savings in The Town of Boston (In re Sapos), 967 F.2d 918, 928 (3d Cir.1992) (“Payments under a plan that cures any default must be completed within the life of the plan, which is not to exceed five years. 11 U.S.C. § 1322(c).”); Bellamy, 962 F.2d at 185; Richards, 151 B.R. at 14; In re Cole, 122 B.R. 943 (Bankr. E.D.Pa.1991).

The approach that best harmonizes the interplay between 11 U.S.C. §§ 506(a) and 1322(b)(5) is a two-step process. First, include the prepetition mortgage arrears [869]*869under Citibank’s secured claim for valuation purposes, as determined under 11 U.S.C. § 506(a).

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Bluebook (online)
152 B.R. 866, 1993 Bankr. LEXIS 571, 1993 WL 127706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cruz-nysd-1993.