In Re Jean R. Deseno, Debtor. Midlantic National Bank v. Jean R. Deseno, Us Trustee, Trustee

17 F.3d 642
CourtCourt of Appeals for the Third Circuit
DecidedMarch 16, 1994
Docket93-5275
StatusPublished
Cited by29 cases

This text of 17 F.3d 642 (In Re Jean R. Deseno, Debtor. Midlantic National Bank v. Jean R. Deseno, Us Trustee, Trustee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Jean R. Deseno, Debtor. Midlantic National Bank v. Jean R. Deseno, Us Trustee, Trustee, 17 F.3d 642 (3d Cir. 1994).

Opinions

OPINION OF THE COURT

ROTH, Circuit Judge:

This appeal requires us to determine whether Chapter 11 of the Bankruptcy Code authorizes a debtor to cure or modify a foreclosure judgment obtained under New Jersey law. The bankruptcy court concluded that it does and thereby denied appellee Midlantic National Bank’s motion requesting relief from the automatic stay. Midlantic appealed to the district court, which reversed the decision of the bankruptcy court. We will affirm the district court’s decision insofar as it holds that a Chapter 11 debtor may not cure a default on a home mortgage following a foreclosure judgment in New Jersey. Because we agree with the bankruptcy court that Chapter 11 allows a debtor to modify such a foreclosure judgment, however, we will reverse the decision of the district court on that issue.

I.

Midlantic holds a first purchase money mortgage, executed by the debtor Jean R. DeSeno and her ex-husband Stefano T. De-Seno and dated November 19, 1979, on the property which is Ms. DeSeno’s residence. Pursuant to a judgment of divorce on April 20, 1992, title to the property was transferred solely to Ms. DeSeno. On August 20, 1991, Midlantic obtained a foreclosure judgment in the Superior Court of New Jersey on the mortgage. Pursuant to the judgment, the court issued a writ of execution directing the Sheriff of Monmouth County to sell the property in order to satisfy the judgment. The Sheriff scheduled the sale for March 2, 1992; however, at the request of Ms. DeSeno the sale was postponed until March 30. On March 25, 1992, prior to the foreclosure sale, Ms. DeSeno filed her petition for protection under Chapter 11 of the Bankruptcy Code.

On September 9, 1992, Midlantic filed a motion for relief from the automatic stay, arguing, inter alia, that it was entitled to relief from the stay under this court’s decisions in In re Roach, 824 F.2d 1370 (3d Cir.1987), and First Nat’l Fidelity Corp. v. Perry, 945 F.2d 61 (3d Cir.1991). On October 19, 1992, the bankruptcy court entered an order denying Midiantic’s motion on the basis of its conclusion that Roach and Perry do not apply in Chapter 11 cases.

Midlantic appealed this order to the district court. On April 5, 1993, the district court vacated the bankruptcy court’s order, reasoning that Roach and Perry do apply in Chapter 11 cases, and remanded the case to that court. On- May 3, 1993, Ms. DeSeno filed a timely appeal. The bankruptcy court has stayed all proceedings in the case pending the outcome of this appeal.

II.

The district court had jurisdiction over the appeal from the bankruptcy court’s final order denying Midiantic’s request for relief pursuant to 28 U.S.C. § 158(a). We have jurisdiction over this appeal from the final order of the district court pursuant to 28 U.S.C. § 158(d). Because this appeal concerns the appropriateness of the legal standards applied by the district and bankruptcy courts, our review is plenary. Perry, 945 F.2d at 62.

III.

Both Chapter 11 and Chapter 13 authorize a debtor’s bankruptcy plan to provide for the “curing or waiving of any default.” 11 U.S.C. §§ 1123(a)(5)(G) & 1322(b)(3). See also 11 U.S.C. § 1322(b)(5). In Roach, 824 F.2d at 1376, this court observed that “[§] 1123 of Chapter 11 and § 1322 of Chapter 13 are parallel provisions, and we believe it very likely that Congress’ understanding of the [644]*644authorization to cure defaults in each was identical.” Based on this understanding, we looked to the text and legislative history of 11 U.S.C. §§ 1123 & 1124 to guide our interpretation of the scope of the authorization to cure defaults in Chapter 13. We restated and relied on that reasoning in Appeal of Capps, 836 F.2d 773, 775-76 (3d Cir.1987). The Second Circuit has also concluded that the concept of “curing a default” has the same meaning in Chapters 7, 11, and 13. In re Taddeo, 685 F.2d 24, 28-29 (2d Cir.1982).

In Roach, we held that “§ 1322(b) must be read in the context of state law and ... its right to cure a default on a mortgage on a home located in New Jersey terminates upon entry of a foreclosure judgment.” 824 F.2d at 1373. We reasoned that § 1322(b)(5) authorized the curing of a default only in a contractual relationship, which, under New Jersey law, ceases to exist following a foreclosure judgment. Since the mortgage no longer exists, its default can no longer be cured, and the mortgagee’s rights arise solely from the judgment. Moreover, we noted that the rights in the property created by a foreclosure judgment are of a different nature than those established by the mortgage in that the foreclosure judgment makes the entire amount of the debt immediately due and payable out of the proceeds of the sale of the property. Because we could find no “statutory language, legislative history, or a significant federal interest mandating federal interference with state foreclosure judgments,” id. at 1378-79, we held “that in New Jersey the right to cure a default on a home mortgage under § 1322(b) does not extend beyond the entry of a foreclosure judgment.” Id. at 1379.

We decline to reconsider our conclusions in Roach and we will specifically extend our holding in that case to Chapter 11. Neither the text of the statute, the legislative history, nor the policies animating the Bankruptcy Code suggest that the concept of “curing a default” should be ascribed any more than a single, consistent meaning throughout the Code. Thus, absent a change in New Jersey’s law concerning foreclosure judgments, we will not re-examine our holding that entry of a foreclosure judgment on a New Jersey home mortgage terminates a debtor’s right to cure a default on that mortgage. In this case, Midlantic has obtained a foreclosure judgment on Ms. DeSeno’s mortgage. As a result, her right to cure her default on the mortgage has terminated, and Midlantic cannot be prevented from lifting the stay on this basis.

IV.

We must next consider whether a Chapter 11 debtor has the authority to provide for modification of a foreclosure judgment as part of a plan of reorganization.2 The modification power is found in § 1123(a), which provides in relevant part:

Notwithstanding any otherwise applicable nonbankruptcy law, a plan shall—
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(5) provide adequate means for the plan’s implementation, such as—
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Bluebook (online)
17 F.3d 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jean-r-deseno-debtor-midlantic-national-bank-v-jean-r-deseno-us-ca3-1994.