In re Parker

563 B.R. 650, 77 Collier Bankr. Cas. 2d 103, 2017 Bankr. LEXIS 41
CourtUnited States Bankruptcy Court, E.D. Kentucky
DecidedJanuary 6, 2017
DocketCASE NO. 16-30313
StatusPublished
Cited by1 cases

This text of 563 B.R. 650 (In re Parker) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Parker, 563 B.R. 650, 77 Collier Bankr. Cas. 2d 103, 2017 Bankr. LEXIS 41 (Ky. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

Gregory R. Schaaf, Bankruptcy Judge

This matter is before the Court on the Creditor Kentucky Housing Corporation’s Objection to Confirmation [ECF No. 20] of the Debtor’s proposed Chapter 13 Plan [ECF No. 12]. For the reasons stated more fully below, the Creditor’s Objection to Confirmation is sustained and the Debt- or shall have 14 days to file an amended plan in conformity with this Order.

I. RELEVANT FACTS AND PROCEDURAL HISTORY.

The Debtor filed for chapter 13 relief on August 1, 2016. The Debtor’s principal residence is located at 210 Swigert Avenue, Frankfort, Kentucky (the “Property”). [Schedule A, ECF No. 11.] The Property is valued at $55,000.00 [id.] and is subject to a mortgage lien held by Kentucky Housing Corporation (“KHC”) that secures a debt of $41,750.00. [Schedule D, ECF No. 11.] The Debtor proposes to pay KHC the entire debt in equal monthly installments over the five year term of her plan. [Chapter 13 Plan, ECF No. 12.]

Prior to the Debtor’s bankruptcy filing, KHC obtained a Judgment and Order of Sale of the Property in the Franklin Circuit Court. [Judgment and Order of Sale, Exhibit E, ECF No. 41-5.] The Property was subsequently sold at a foreclosure sale with KHC as the successful bidder. [KHC Objection to Confirmation, ECF No. 20 at ¶¶ 2-3; Master Commissioner’s Report of Sale, Exhibit F, ECF No. 41-6.] The auction price was $51,500.00, which equaled the total amount due to KHC, including attorney fees and costs of sale.1 [M] The sale is not yet confirmed by the state court, a requirement under Kentucky law before the sale is final. Regardless, KHC argues the foreclosure sale prevents the Debtor from making a proposal to cure the debt through her plan and therefore her plan violates 11 U.S.C. § 1325(a)(1), § 1325(a)(3), and § 1325(a)(7). [KHC Objection to Confirmation, ECF No. 20 at ¶¶ 6-10.]

A hearing was held on November 10, 2016, and the parties were allowed additional time to brief the issues. [See ECF Nos. 41 and 42.] The Court heard further arguments of counsel on December 22, 2016, and the matter was taken under submission. [ECF No. 46.]

II. DISCUSSION.

A. The Cut-Off Date for the Statutory Right to Cüre under § 1322(b) is the End of the Auction Sale of the Mortgaged Premises.

Federal bankruptcy law provides a statutory right to cure a default on a debt [652]*652secured by real property. 11 U.S.C. §§ 1322(b)(2), (3) and (5). Prior to 1994, the statute did not address “the point in the foreclosure process at which a Chapter 13 debtor loses the right to cure a default on a real estate mortgage on his principal residence.” Federal Land Bank of Louisville v. Glenn (In re Glenn), 760 F.2d 1428, 1429 (6th Cir. 1985). Therefore, in 1985, the Sixth Circuit decided: “The event we choose as the cut-off date of the statutory right to cure defaults is the sale of the mortgaged premises.” Id. at 1435.

The Sixth Circuit recognized that any solution had objections in theory or practice. Id. But this “pragmatic” approach “works the least violence to the competing concerns evident in the language of the statute but also one that is most readily capable of use.” Id. The Sixth Circuit made it clear that “in so ruling we avoid any effort to analyze the transaction in terms of state property law,” Id. at 1436.

Other courts struggled with this question to the point that Congress decided to act. In 1994, Congress added § 1322(c) in an attempt to resolve the dispute. Section 1322(c), reads:

(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law—
(1) a default with respect to, or that gave rise to, a lien on the debt- or’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; and
(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.

11 U.S.C. § 1322(c).

Unfortunately, this amendment did not resolve the controversy. Courts continued to wrestle with the language of the statute and, in particular, reconcile the statutory language with its legislative history. See Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 130.1, at ¶¶ 14-15, Sec. Rev. June 2, 2014, www.Chapterl3online.com (explaining “significant inconsistencies” between the language of new § 1322(c)(1) and the legislative history, which the author blames for the “chaos of inconsistent interpretations and outcomes” as a result).

In 2005, the Sixth Circuit once again addressed the termination of the Debtor’s statutory right to cure. This time the issue was “whether a default on a residential mortgage may be ‘cured’ through the filing of a Chapter 13 petition and plan after a foreclosure sale but before the expiration of a state-law redemption period.” Cain v. Wells Fargo Bank, N.A. (In re Cain), 423 F.3d 617, 618 (6th Cir. 2005). The Sixth Circuit recognized the continuing conflict with the statutory right to cure and déter-mined that. § 1322(c)(1) unambiguously sets the date of the foreclosure sale as the cut-off date:

The meaning of § 1322(c)(1), which took effect in 1994, is a question on which the courts have “divided into two main schools of thought.” In re Crawford, 232 B.R. 92, 95 (Bankr. N.D. Ohio 1999).
“Generally, one line of cases holds that the new statutory language is unambiguous and cuts off the right to cure at the foreclosure auction. The other line of eases finds the language ambiguous, looks to the legislative his[653]*653tory for guidance, and concludes that the debtor’s right to cure extends beyond the auction date to the point in time where the sale is completed under state law.” Id. at 95-96.

We agree with the courts that have held § 1322(c)(1) to be unambiguous. In our view, “a foreclosure sale” is a single, discrete event—typically an auction at which the highest bidder purchases the property. See Crawford, 232 B.R. at 96; In re McCaRN, 218 B.R. 154, 160 (10th Cir. BAP 1998). But see In re Beeman, 235 B.R. 519, 525 (Bankr.D.N.H.1999) (holding that a foreclosure sale occurs “upon the completion of a process, and not upon the occurrence of a single event such as a foreclosure auction”). Our interpretation is consistent with In re Glenn, 760 F.2d 1428 (6th Cir.), cert. denied,

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563 B.R. 650, 77 Collier Bankr. Cas. 2d 103, 2017 Bankr. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-parker-kyeb-2017.