In re Howard

507 B.R. 394, 2014 WL 1230226
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMarch 14, 2014
DocketNo. 13-65741
StatusPublished
Cited by8 cases

This text of 507 B.R. 394 (In re Howard) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Howard, 507 B.R. 394, 2014 WL 1230226 (Ga. 2014).

Opinion

ORDER

JAMES R. SACCA, Bankruptcy Judge.

Can an order confirming a Chapter 13 plan treating a pawn transaction as a secured claim bind the pawn broker where the redemption period had expired pre-petition, bul; where the Debtor had physical possession of the goods on the petition date? This issue is before the Court on USA Title Pawn’s (“USA Title”) Motion to Terminate Automatic Stay (the “Motion”), filed on January 1, 2014 [Doc. No. 30]. The matter came on for hearing on February 20, 2014. In addition to the Motion and arguments of counsel, the Court has considered USA Title’s “Supplemental Citation of Authority in Support of Motion for Relief from Stay” [Doc. No. 35] and all other matters of record.

In the Motion, USA Title asks the Court for permission to take possession of two motor vehicles currently in the physical possession of the Debtor. USA Title claims these vehicles are neither the property of the Debtor nor the property of the Debtor’s estate. The Debtor contends otherwise and asserts that USA Title is bound by the terms of her confirmed Chapter 13 plan. Accordingly, the Court must determine the parties’ respective interests in the vehicles and the effect of the confirmation of the plan.

Background

The facts here are not in dispute. The Debtor executed two separate pawn contracts with USA Title involving two motor vehicles. Under the first pawn contract, dated June 25, 2012, USA Title received a security interest in Debtor’s 2006 Suzuki Aeris (the “Suzuki”) in exchange for a $1,856.18 cash loan to the Debtor. Under the second pawn contract, dated August 3, 2012, USA Title received a security interest in the Debtor’s 1999 Chevrolet Tahoe (the “Chevrolet”) in exchange for a $1,803.84 cash loan to the Debtor.

The Debtor did not make the payments as required by the pawn contracts. The Suzuki contract was in default on April 23, 2013 and the grace period within which to redeem the vehicle expired on May 23, 2013. The Chevrolet contract was in default on June 4, 2013 and the grace period within which to redeem that vehicle expired on July 5, 2013. There was no extension of the redemption period nor did the Debtor redeem either vehicle. The Debtor did not file her Chapter 13 case until July 19, 2013. She listed USA Title as a creditor on her mailing matrix and on her schedule of creditors holding secured claims. She also proposed a plan which provided for USA Title to be treated as the holder of claims to which a § 506 valuation is applicable.1 Although USA [397]*397Title did receive notice of the case and the proposed treatment in the plan, USA Title did not object to the plan, nor did it file a claim in the case. The plan was confirmed on November 8, 2013 [Doc. No. 22].

The Parties’ Respective Interests in the Vehicles

Pursuant to 11 U.S.C. § 541, upon the filing of a voluntary petition by a debtor, an estate is created which comprises “all legal or equitable interests of the debtor in property” at that time. Property of the estate includes, among other things, tangible property that a debtor owns subject to a lien or security interest. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Whether a debtor has a legal or equitable interest in property at the commencement of a bankruptcy case is determined by reference to state law. Butner v. U.S., 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). The Georgia law applicable to this case is found in three sections of the Official Code of Georgia Annotated: O.C.G.A. § 44-12-130, O.C.G.A. § 44-12-131 and O.C.G.A. § 44-14-403.

O.C.G.A. § 44-12-130 defines a “pawn transaction” as “any loan on the security of pledged goods or any purchase of pledged goods on the condition that the pledged goods may be redeemed or repurchased by the pledgor or seller for a fixed price within a fixed period of time.” Although a pledged good2 customarily requires the creditor to have control of the property, the Georgia Code permits a borrower to pledge a motor vehicle by providing that the pawnbroker’s possession of the vehicle’s certificate of title is “conclusively deemed to be possession of the motor vehicle.” O.C.G.A. § 44-12-130(5). In this matter, both vehicles were pledged goods, as the Debtor delivered both vehicles’ certificates of title to USA Title in exchange for cash loans. The loans were made with conditions that the Debtor may redeem the vehicles for a fixed price within a fixed period of time; thus both transactions were pawn transactions within the meaning of O.C.G.A. § 44-12-130.

O.C.G.A. § 44-12-131 requires specific provisions in a pawn transaction. This section provides that all pawn transactions must be for at least a thirty-day period but may be continued or extended for additional thirty-day periods by written agreement of the parties. O.C.G.A. § 44-12-131(a)(1). If the pledgor — who retains physical possession and use of the motor vehicle — defaults in making the contracted payments, the lender may then repossess the vehicle itself. O.C.G.A. § 44-12-131(a)(3).

If the parties do not agree to extend or continue the pawn transaction and the borrower does not pay the principal, interest, and charges in full to redeem the pawned property by the maturity date (as may be extended), the borrower has an additional grace period of thirty days — in the case of motor vehicles — to redeem the pawned property. O.C.G.A. § 44-14-403(b)(1), (2). To redeem such property, the borrower must pay the principal, interest, and other charges due on the maturity date plus an additional interest charge of up to 12.5 percent of the principal. O.C.G.A. § 44-14-403(b)(3). If the vehicle is not timely redeemed, O.C.G.A. § 44-14-[398]

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Cite This Page — Counsel Stack

Bluebook (online)
507 B.R. 394, 2014 WL 1230226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-howard-ganb-2014.