In re Lister

593 B.R. 587
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedSeptember 25, 2018
DocketCase No. 17-12377
StatusPublished
Cited by3 cases

This text of 593 B.R. 587 (In re Lister) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lister, 593 B.R. 587 (Ohio 2018).

Opinion

Beth A. Buchanan, United States Bankruptcy Judge

U.S. Bank Trust, NA (the "Creditor") argues that the proposed cramdown of the Creditor's secured claim by Debtors Amy and James Lister ("Debtors") in their chapter 13 plan [Docket Number 17] is prohibited by the anti-modification provision of 11 U.S.C. § 1322(b)(2). The Debtors maintain that the anti-modification provision does not apply because Creditor's claim is secured by real property that is not solely the Debtors' principal residence. For the reasons that follow, this Court finds that 11 U.S.C. § 1322(b)(2) precludes the modification of the Creditor's claim.

I. FINDINGS OF FACT

The parties stipulated [Docket Number 24] to the following facts:

1. Debtors own the real property located at and commonly referred to as 10038 State Route 775, Scottown, Ohio 45678 (the "Property").

2. Debtors have owned the Property since 1996.

3. The Property consists of two adjacent parcels of real estate that are both pledged as collateral through a consensual mortgage for the debt owed to Creditor. The mortgage in question was executed on May 16, 2005 and was recorded with the Lawrence County Recorder's office on May 26, 2005. The mortgage fully matures on May 16, 2025.

4. The Debtors have owned and operated a home childcare on the premises for the past twenty-one years. This encompasses the entirety of the time that Creditor has held a mortgage against the Property.

5. Debtors receive monthly rent in the amount of approximately $600.00 for the rental of a separate structure that exists on the Property. The separate structure serves as a residence for a third-party.

*590Debtors began the rental of this separate structure in October of 2014.

6. Debtors and Creditor agree that the information presented in the stipulations is submitted in lieu of testimony of the Debtors and such information is accepted as truthful and accurate. Creditor waives its rights to cross examination of the Debtors as witnesses.

7. Debtors obtained an appraisal of the entirety of the Property on April 25, 2017, with such appraisal being completed by licensed appraiser Jeffrey Hunter. A copy of the appraisal has been filed with the Court as ECF No. 9 and shall be considered Joint Exhibit 1 (the "Appraisal"). This Appraisal shall be admitted as evidence.1

The parties further stipulated [Docket Number 43] to the admission of the following additional exhibits, which were attached to the parties' respective briefs:

a. Debtors' Exhibits
i. Exhibit A - Deed
ii. Exhibit B - Mortgage
iii. Exhibit C - Lawrence County Auditor Property Cards
b. Creditor's Exhibits
i. Exhibit A - Lawrence County Auditor Property Cards
ii. Exhibit B - Debtors' 2016 Bankruptcy Petition
iii. Exhibit C - Debtors' 2016 Bankruptcy Docket
iv. Exhibit D - Foreclosure Complaint
v. Exhibit E - Answer to Foreclosure Complaint
vi. Exhibit F - Debtors' Notice of Filing Real Estate Appraisal
vii. Exhibit G - Creditor's Proof of Claim

II. ANALYSIS

Jurisdiction over this matter is vested in this Court by virtue of 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding under 28 U.S.C. § 157(b)(2)(L).

Section 1322(b)(2)2 provides that a chapter 13 "plan may ... 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 [.]" 11 U.S.C. § 1322(b)(2) (emphasis added). This is known as the anti-modification provision or exception.

The two threshold legal issues before this Court are: (1) whether the anti-modification provision of § 1322(b)(2) applies to a security interest in real property that is the debtor's principal residence, if that property also hosts commercial activities-so called "mixed-use properties;" and, (2) the point in time for determining the debtor's "principal residence" status under § 1322(b)(2). Courts have grappled with these issues for the past twenty-plus years. Before weighing in, this Court will endeavor to summarize the divergent approaches.

A. Section 1322(b)(2) and "mixed-use property"

There are three differing approaches for determining the applicability of the antimodification *591provision where the real property at issue serves as more than the debtor's principal residence. The vast majority of the cases in the mixed-use context involve real property that includes the debtor's principal residence as well as other income-producing rental property.

1. Approach # 1: Real property that is only the debtor's principal residence (the "Bright-Line Only Approach" )

The "majority" of courts have adopted a bright-line approach concluding that the antimodification provision does not apply unless the real property is only the debtor's principal residence. See e.g. , Scarborough v. Chase Manhattan Mortg. Corp. (In re Scarborough) , 461 F.3d 406, 411 (3rd Cir. 2006) ; Lomas Mortg., Inc. v. Louis , 82 F.3d 1, 7 (1st Cir. 1996) ; In re Abrego , 506 B.R. 509, 515 (Bankr. N.D. Ill.

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Bluebook (online)
593 B.R. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lister-ohsb-2018.