In re Mayer-Myers

345 B.R. 127, 2006 Bankr. LEXIS 1088, 2006 WL 1649021
CourtUnited States Bankruptcy Court, D. Vermont
DecidedJune 15, 2006
DocketNo. 05-12466
StatusPublished
Cited by2 cases

This text of 345 B.R. 127 (In re Mayer-Myers) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Mayer-Myers, 345 B.R. 127, 2006 Bankr. LEXIS 1088, 2006 WL 1649021 (Vt. 2006).

Opinion

MEMORANDUM OF DECISION

COLLEEN A. BROWN, Bankruptcy Judge.

Sustaining Objection to Chapter 13 Plan Green Tree Servicing, LLC, as successor in interest to Green Tree Financial Servicing Corporation (“Green Tree”) has objected to the confirmation of the chapter 13 Plan filed by Cynthia Mayer-Myers’ (the “Debtor”), alleging that the Plan violates the anti-modification directive set forth in § 1322(b)(2).1 The Debtor contends it is not improper for her Plan to modify Green Tree’s rights because Green Tree’s mortgage is not secured solely by real property that is the Debtor’s primary residence, since Green Tree has also taken a security interest in the Debtor’s bank accounts and rents. For the reasons set forth below, the Court determines that neither Green Tree’s right to set off nor the assignment of rents contained in the mortgage constitute additional security, and therefore, Green Tree’s claim is secured only by the Debtor’s primary residence. Accordingly, pursuant to § 1322(b)(2), the Debtor has no right to modify the rights of Green Tree in connection with the subject claim and the Court must sustain Green Tree’s objection to the Debtor’s plan.

Background Facts

Green Tree and the Debtor (collectively, the “Parties”) have stipulated to the pertinent facts. Green Tree holds a properly perfected first lien on the Debtor’s property by virtue of a properly recorded mortgage deed dated September 24, 1999 (doc. # 22, ¶ 1). The mortgage covers land and premises, including a manufactured home, which the Debtor occupies as her principal residence (Id. at ¶¶ 2-3). The mortgage lien secures a promissory note which is currently in default (Id. at ¶ 4). The Debt- or has not made a payment to Green Tree under the promissory note since November 18, 2002 and is more than $32,533.00 past due (Id. at ¶ 5). The Debtor has proposed a Chapter 13 plan that seeks to modify Green Tree’s claim (Id. at ¶ 8).

Issue Presented

The question before the Court is whether Green Tree’s claim is secured only by real property that is the Debtor’s principal residence and hence entitled to protection from the modification of its claim under § 1322(b)(2).

Discussion

Section 1322(b)(2) allows a chapter 13 plan to modify the rights of the holders of secured claims “other than a claim se[129]*129cured only by a security interest in real property that is the debtor’s principal residence.....” (emphasis added). This language is unambiguous. In re Loper, 222 B.R. 431, 437 (D.Vt.1998). The Debtor’s plan may modify Green Tree’s rights unless Green Tree’s claim is secured only by a security interest in the Debtor’s residential real property. If Green Tree has supplemented its collateral by taking a security interest in property other than the Debtor’s personal residence, then its claim is not protected from modification and Green Tree’s rights may be modified in chapter 13. Thus, the Court must determine whether Green Tree’s security interest essentially encompasses one property interest or several. The extent of a mortgagee’s property rights is determined by state law. Nobelman v. American Sav. Bank, 508 U.S. 324, 329, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993).

The mortgage between the Parties granted Green Tree a security interest described as follows:

In the following described property: All of thé property located at Hillside Road, in the City/Town/Village of North Ben-nington, County of Bennington, and State of Vt, in which Borrower has an ownership, leasehold or other legal interest. . .together with a security interest in that certain 2000, 56 x 28 Georgetown mobile home... [t]together will all rights, easements, appurtenances, royalties, mineral rights, oil and gas rights, all water and riparian rights, ditches, and water stock and all existing and future improvements, structures, fixtures, and replacements that may now, or at any time in the future, be part of the real estate described above (all referred to as the ‘Property’).

The mortgage also contains an assignment of leases and rents clause that provides as follows:

ASSIGNMENT OF LEASES AND RENTS. Mortgagor irrevocably grants, bargains, conveys and mortgages to Lender as additional security all the right, title and interest in and to any and all existing or future leases, subleases, and any other written or verbal agreements for the use and occupancy of any portion of the Property, including any extensions, renewals, modifications or substitutions of such agreements (all referred to as “Leases”) and rents, issues and profits (all referred to as “Rents”). Mortgagor will promptly provide Lender with true and correct copies of all existing and future Leases. Mortgagor may collect, receive, enjoy and use the Rents so long as Mortgagor is not in default in the terms of this Security Instrument.

The promissory note provides Green Tree with the right to set off any amount due and payable under the note against any right the Debtor might have to receive money from Green Tree (doc. # 22, Ex. B. p. 2). The Debtor asserts that the Note grants Green Tree additional collateral in the form of the right to set off and that the above language in the. mortgage grants Green Tree an additional security interest in rents. Such security interests, the Debtor posits, are above and beyond the security interest in the Debtor’s primary residence and hence take Green Tree outside the scope of parties protected by § 1322(b)(2), and allow the Debtor to modify Green Tree’s rights in her chapter 13 plan.

The Court’s response to the Debt- or’s argument with respect to the right to set off is straightforward. The right to set off is contractual in nature. O’Donnell v. Bank of Vermont, 166 Vt. 221, 225, 692 A.2d 1212 (1997). The Debtor’s granting to Green Tree of a right to set off any amounts due and payable under the Note is not tantamount to the granting of a [130]*130security interest. The Note did not create a separate security interest in personal property. The Note contains no granting language with respect to the right to set off or describes no funds the Debtor might receive from Green Tree. Accordingly, Green Tree’s right to set off is not a basis for allowing the Debtor to modify Green Tree’s rights under the plan.

The question of whether the Assignment of Leases and Rents constitutes a security interest beyond a security interest in the Debtor’s primary residence is more complicated. The Parties have not pointed to any Vermont statute or case directly on point and the Court’s independent research has revealed none. However, Green Tree argues that the definition of “homestead” under Vermont’s homestead statute indicates that Vermont law considers rents an extension of real property. See 27 V.S.A. § 101. While Green Tree’s focus on the definition of a “homestead” under Vermont law is creative, it is misplaced. This is an exemption concept and describes the res that the state has carved out as being protected from execution by creditors; it has nothing to do with security interests.

For guidance on the question of how security interests in rent relate to mortgages against real estate the Court relies upon the state law of secured transactions. The Vermont statute on point, 9A V.S.A. § 9-109.

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Cite This Page — Counsel Stack

Bluebook (online)
345 B.R. 127, 2006 Bankr. LEXIS 1088, 2006 WL 1649021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mayer-myers-vtb-2006.