In re Manor

569 B.R. 764, 77 Collier Bankr. Cas. 2d 2009, 2017 Bankr. LEXIS 1769
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJune 27, 2017
DocketCase Number: 17-10248-13
StatusPublished
Cited by1 cases

This text of 569 B.R. 764 (In re Manor) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Manor, 569 B.R. 764, 77 Collier Bankr. Cas. 2d 2009, 2017 Bankr. LEXIS 1769 (Wis. 2017).

Opinion

MEMORANDUM DECISION

Catherine J. Furay, U.S. Bankruptcy Judge

This matter is before the Court on the objection of the Debtor, Annette Sue Man- or (“Manor”), to the Proof of Claim of Members Cooperative Credit Union (the “Credit Union”). Manor seeks to reduce the secured claim by certain amounts she believes should not be included in the claim as purchase money amounts securing the claim.

[765]*765FACTS

On October 7, 2016, Manor purchased a new Dodge Ram vehicle (the “Dodge”). The price of the Dodge was $43,176.00. She traded in a Chevrolet Silverado (the “Silverado”) for the purchase. She owed more on the Silverado than its trade-in value, resulting in negative equity of $6,343.65. Instead of paying off the loan on the old car, Manor had the negative equity included in the financing of the Dodge. The negative balance, GAP insurance, a service contract, and taxes were added to the purchase price for the Dodge, resulting in total financing of $44,892.56 after deducting the trade-in and cash down payment.

Manor filed a voluntary Chapter 13 on January 30, 2017. The Credit Union filed Proof of Claim No. 7 asserting a claim in the amount of $44,006.96. There is no dispute this is the total amount due the Credit Union. Manor and the Credit Union agree the Dodge was purchased within 910 days of the date of the filing of Manor’s bankruptcy. The parties agree the value of the Dodge is $29,500.00.

DISCUSSION

The issue in this case is whether Manor can cramdown the value of the Credit Union’s collateral to its value or, alternatively, whether the secured claim of the Credit Union can be reduced by the amounts of the negative equity, GAP insurance, service contract, and taxes that were financed by Manor.

Numerous courts have wrestled with this issue reaching an array of divergent results. However, in 2010, the Seventh Circuit joined the Second, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits1 in concluding that a purchase money security interest in a vehicle includes negative equity. Howard v. AmeriCredit Fin. Servs. (In re Howard), 597 F.3d 852, 858 (7th Cir. 2010). Since the Seventh Circuit’s ruling in Hoivard, the Sixth Circuit has also joined the majority of circuit courts in finding a purchase money security interest in a vehicle includes negative equity. See Nuvell Credit Corp. v. Westfall (In re Westfall), 599 F.3d 498, 503 (6th Cir. 2010).

11 U.S.C. § 1325(a) authorizes cram-downs in Chapter 13 bankruptcies. In re Howard, 597 F.3d at 854. Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), the Bankruptcy Code generally allowed Chapter 13 debtors to modify the rights of a secured creditor holding a purchase money security interest in a vehicle by bifurcating the creditor’s claim into secured and unsecured portions. The secured amount was determined based on the vehicle’s fair market value on the petition date. The balance was then classified as an unsecured claim. See 11 U.S.C. §§ 506(a)(1), 1325(a). After bifurcating the claim, the debtor could treat the secured and unsecured portions separately in accordance with the priority scheme established by the Code. This process, known as “cramdown,” essentially permitted a debtor to strip a secured creditor’s lien down to the value of the collateral, with the remaining balance receiving payment on a pro-rata basis as an unsecured claim pursuant to the terms of the plan.

Congress amended the Code to prevent cramdown of certain secured consumer [766]*766debts. Relevant to this ease is a section added in BAPCPA referred to as the “hanging paragraph.” It states:

For purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day period preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49) acquired for the personal use of the debtor ....

11 U.S.C. § 1325(a).

The restrictions created by this provision preclude bifurcating a secured debt incurred within the 910 days prior to bankruptcy into secured and unsecured portions based on the value of the vehicle. Where the debtor seeks to retain the vehicle, a creditor whose claim meets the four criteria set forth in the hanging paragraph — (1) the creditor holds a purchase money security interest, (2) the debt was incurred within 910 days of filing, (3) the collateral consists of a motor vehicle, and (4) the debtor acquired the vehicle for his/her personal use — receives protection from bifurcation and cramdown.

It is undisputed that (1) the Credit Union financed the purchase of the Dodge, (2) the Dodge was purchased within 910 days of the filing of Manor’s petition, (3) the collateral is a vehicle, and (4) Manor acquired the Dodge for personal use. Thus, the restriction from the hanging paragraph applies and Manor cannot bifurcate the Credit Union’s claim. The remaining issue to be addressed is whether the inclusion of negative equity, taxes, the service contract, and insurance are to be included in the secured claim for the purposes of section 1325(a).

Including negative equity in the purchase price of a vehicle is “often necessary to enable the purchase of the car ....” In re Howard, 597 F.3d at 857. “Negative equity” is a well-established fact of life in autq financing. Approximately one-third of the car sales in America involve a trade-in vehicle with a negative equity balance. AmeriCredit Fin. Servs. v. Penrod (In re Penrod), 611 F.3d 1158, 1162 (9th Cir. 2010) (citing In re Howard, 597 F.3d at 857-58).

To decide this issue, the Court must analyze the definition of “purchase money security interest” under Wisconsin law. Revised Article 9, Section 9-103, as enacted in Wisconsin, including the Official Comments, provides that “[a] security interest in goods is a purchase-money security interest” to the extent it “secures a purchase-money obligation incurred with respect to that collateral.” Wis. Stat. § 409.103(1). The section continues to explain that a purchase money obligation is an “obligation ... incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.” The Comments make clear that expenses incurred in connection with acquiring rights in the collateral, including sales taxes and other similar obligations, are part of the price because they enable the purchase.

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569 B.R. 764, 77 Collier Bankr. Cas. 2d 2009, 2017 Bankr. LEXIS 1769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-manor-wiwb-2017.