In re Rosa

495 B.R. 522, 2013 WL 3380166, 2013 Bankr. LEXIS 2744
CourtUnited States Bankruptcy Court, D. Hawaii
DecidedJuly 8, 2013
DocketNo. 13-00630
StatusPublished
Cited by13 cases

This text of 495 B.R. 522 (In re Rosa) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Rosa, 495 B.R. 522, 2013 WL 3380166, 2013 Bankr. LEXIS 2744 (Haw. 2013).

Opinion

MEMORANDUM OF DECISION ON CHAPTER 13 PLAN CONFIRMATION

ROBERT J. FARIS, Bankruptcy Judge.

The chapter 13 plan in this case provides that title to certain real property shall be vested in the first mortgagee. [523]*523The standing trastee objects. For the following reasons, I conclude that, because the mortgagee did not object, the plan can be confirmed.

According to her schedules, the debtor jointly owns (along with Eduardo Bringas and RBA Holdings LLC) real property in Ewa Beach that is subject to a first mortgage in favor of “City National Bank/ Ocwen Loan Service” and a second mortgage in favor of Franklin Credit Management. The property is apparently subject to homeowners’ association fees. The debtor has no equity in the property and both mortgages are seriously delinquent. The debtor’s modest income is not sufficient to cover the mortgage payments, let alone to cure the delinquencies.

The debtor has wisely decided to get rid of the property. But this is easier said than done. The mortgagor ordinarily cannot compel the mortgagee to foreclose, and the mortgagor cannot convey the property to the mortgagee or anyone else unless the mortgagee/grantee accepts the conveyance.

This poses a serious problem for chapter 13 debtors who own property that is covered by an owners’ association, such as a condominium unit, because “as a matter of law, debtor’s personal liability for HOA dues continues postpetition as long as he maintains his legal, equitable or possesso-ry interest in the property and is unaffected by his discharge.” Foster v. Double R Ranch Assoc. (In re Foster), 435 B.R. 650 (9th Cir. BAP 2010). (Foster applied Washington state condominium law, but Hawaii law appears to be the same. Further, under section 523(a)(16), the same result applies where the debtor obtains a discharge in chapter 7 or a “hardship” discharge under section 1328(b).)

Ms. Rosa’s plan places the first and second mortgage claims in Class 3, which means that she will “surrender” the property to the secured creditors. This treatment is one of the ways in which a chapter 13 plan can deal with a secured claim. 11 U.S.C. § 1325(a)(5)(C). It does not solve the entire problem, however, because surrender does not transfer ownership of the surrendered property. Rather, “surrender” means only that the debtor will make the collateral available so the secured creditor can, if it chooses to do so, exercise its state law rights in the collateral. Pratt v. General Motors Acceptance Corp. (In re Pratt), 462 F.3d 14, 18-19 (1st Cir.2006); In re Gollnitz, 456 B.R. 733, 736 (Bankr. W.D.N.Y.2011) (“Authorization for surrender does not constitute a transfer of title. Rather, transfer requires both the surrender of an interest and its acceptance.”) Therefore, surrender alone does not cut off the debtor’s liability for association fees.

Ms. Rosa’s plan also includes the following nonstandard provision:

All collateral surrendered for Class 3 claims is surrendered in full satisfaction of the underlying claim. Pursuant to §§ 1322(b)(8) and (9), title to the property located at 91-1849 Luahoana Street, Ewa Beach, Hawaii 96707, shall vest in City National Bank/ OCWEN Loan Service upon confirmation, and the Confirmation Order shall constitute a deed of conveyance of the property when recorded at the Bureau of Conveyances. All secured claims secured by the Debt- or’s property in Ewa Beach will be paid by surrender of the collateral and foreclosure of the security interests.

The trustee objects to this provision. The trustee has the duty to appear and be heard at plan confirmation hearings, 11 U.S.C. § 102(b)(2)(B), and he “may object if the plan fails to confirm to all requirements in the Bankruptcy Code,” including those that primarily protect secured creditors. Andrews v. Loheit (In re [524]*524Andrews), 49 F.3d 1404, 1408 (9th Cir. 1995). I rely upon and appreciate his careful review of all provisions of chapter 13 plans.

The trustee correctly points out that surrender does not transfer ownership of the surrendered property. The debtor responds that she is not merely surrendering the property; she is also proposing that title be vested in the first mortgagee, and that the Bankruptcy Code specifically authorizes such a provision:

[T]he plan may ... provide for the vesting of property of the estate, on confirmation of the plan or at a later time, in the debtor or in any other entity....

11 U.S.C. § 1322(b)(9). She also points out that the secured creditors have not objected to the plan.

I agree with the debtor. It is true that “surrender” does not transfer title to the property. But Congress spoke of “vesting,” not “surrender,” in section 1322(b)(9). Under familiar rules of statutory interpretation, courts presume that, when Congress uses different words, it means different things. The plain meaning of “vesting” includes a present transfer of ownership. Thus, section 1322(b)(9) permits inclusion of this nonstandard provision.

The next question is whether the plan can be confirmed with the nonstandard provision. Section 1325(b) states the confirmation requirements applicable to secured claims. The court can confirm a plan only if (1) the secured creditor “accepts” the plan, 11 U.S.C. § 1325(a)(5)(A); (2) the debtor’s payments to the creditor comply with certain standards and the creditor retains its lien, id. § 1325(a)(5)(B); or (3) the debtor “surrenders the property securing such claim to such holder,” id. § 1325(a)(5)(C). These requirements are stated in the disjunctive, so the plan need only satisfy one of the three tests.

The second permitted treatment&emdash;some-times called “cramdown”&emdash;does not apply to this plan. The third standard&emdash;surren-der&emdash;does not fully validate this plan, because the debtor proposes vesting in addition to surrender. Therefore, the plan is confirmable only if the first standard&emdash; acceptance&emdash;is met.

The Bankruptcy Code does not define “accepts” for purposes of chapter 13. The Ninth Circuit and the overwhelming majority of courts hold that a secured creditor’s failure to object to a chapter 13 plan constitutes acceptance. See Andrews v. Loheit (In re Andrews), 49 F.3d 1404, 1409 (9th Cir.1995) (“Here, § 1325(a)(5) is fulfilled because subsection (A) was satisfied when the holders of the secured claims failed to object. In most instances, failure to object translates into acceptance of the plan by the secured creditor.”); In re Szostek, 886 F.2d 1405, 1413 (3d Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 522, 2013 WL 3380166, 2013 Bankr. LEXIS 2744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rosa-hib-2013.