In re Travers

541 B.R. 639, 2015 WL 7307239
CourtUnited States Bankruptcy Court, E.D. Kentucky
DecidedNovember 18, 2015
DocketCASE NO. 15-50844
StatusPublished
Cited by1 cases

This text of 541 B.R. 639 (In re Travers) 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 Travers, 541 B.R. 639, 2015 WL 7307239 (Ky. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

Gregory R. Schaaf, Bankruptcy Judge

This matter is before the Court on the Response and Objection to Motion to Avoid Lien and Objection to Amended Chapter 13 Plan [ECF Nos. 25 and 26] of Creditor United Bank & Trust Company, Versailles, KY, successor by merger to Citizens Bank of Jessamine County (“United Bank”) to (i) its treatment in the proposed plan [ECF No. 19], and (ii) the Motion to Avoid Junior Lien of United Bank Pursuant to 11 U.S.C. § 506(a) [ECF No. 21], The matter is fully briefed and oral argument was held on November 5, 2015. [ECF No. 33-Debtors’ Response and Objection; No. 51-Chapter 13 Trustee’s Memorandum; No. 52&emdash;United Bank’s Reply Memorandum; and No. 53&emdash; Debtors’ Reply Memorandum.]

United Bank has a second lien on the Debtors’ residence, which is also encumbered by a first lien held by Green Tree Servicing LLC in the amount of $332,290.32. [POC 6-1.] United Bank and the Debtors agree the market value of the property is $290,000.00, so there is no equity available to cover United Bank’s lien (ie., the lien is wholly underwater). [ECF No. 45.] Therefore, the Debtor may strip-off the United Bank lien under current Sixth Circuit precedent in Lane v. Western Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002).

United Bank argues, however, that the recent Supreme Court decision in Bank of America, N.A. v. Caulkett, - U.S.-, 135 S.Ct. 1995, 192 L.Ed.2d 52 (2015), changes this result. United Bank admitted at oral argument that Caulkett did not explicitly overrule Lane, but argues the logical implications of the decision would lead to a different result if the Sixth Circuit were to reconsider the issue in this case. See, e.g., Davis v. Springleaf Fin. Servs. (In re Davis), Case No. 15-40069, Adv. No. 15-4020, 2015 WL 5299458, *2 n. 4 (Bankr.S.D.Ga. Sept. 9, 2015) (speculating that the reasoning underlying the Caulkett decision may require a reexamination of cases allowing strip-off of wholly underwater liens in Chapter 13 cases). United Bank, therefore, seeks an order rejecting the Debtors’ proposed avoidance of its lien and holding that Lane was abrogated by Caulkett.

United Bank cannot explain, however, how a lower court may ignore clear precedent from the Sixth Circuit. “[A] published prior panel decision [of the Sixth Circuit] ‘remains controlling authority unless [641]*641an inconsistent decision of the United States Supreme Court requires modification of the decision or [the Sixth Circuit] sitting en banc overrules the prior decision.’” A.B.C. Beverage Corp. v. United States, 756 F.3d 438, 441 (6th Cir.2014) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). The Sixth Circuit has not overruled Lane, so United Bank must show that the Sixth Circuit is required to modify Lane based on Caulkett.

United Bank has a high burden of persuasion because circuit precedent is not easily overruled by Supreme Court precedent, absent explicit direction of that intent. “[BJinding circuit precedent ... cannot be lightly determined to be overturned based upon a broad interpretation of a. Supreme Court decision.” Lawson v. Conley (In re Conley), 482 B.R. 191, 206 (Bankr.S.D.Ohio 2012). Rather, only “a clear directive from the Supreme Court” will require a change. United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006). Caulkett does not mandate overturning Lane.

Caulkett merely applies the interpretation of 11 U.S.C. § 506(d) in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) to underwater liens. The Supreme Court in Caulkett held that strip-off of a wholly underwater lien was not available in Chapter 7 because “Dexvsnup defined the term ‘secured claim’ in § 506(d) to mean a claim supported by a security interest in property, regardless of whether the value of that property would be sufficient to cover the claim.” Caulkett, 135 S.Ct. at 1999. The Sixth Circuit already reached that conclusion in Talbert v. City Mortgage Services (In re Talbert), 344 F.3d 555 (6th Cir.2003), a year after Lane was decided.

Lane was an interpretation of the Supreme Court’s decision in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Nobel-man, decided one year after Dewsnup, addressed whether a chapter 13 debtor could modify the unsecured portion of an undersecured claim secured by a residential mortgage. The Supreme Court determined that a chapter 13 debtor should look “to § 506(a) for a judicial valuation of the collateral to determine the status of the bank’s secured claim.” Nobelman, 508 U.S. at 328, 113 S.Ct. 2106. If the valuation reveals that a claim has a “secured component,” the debtor may not use 11 U.S.C. § 1322(b)(2) to modify the lien. Id. at 331, 113 S.Ct. 2106.

Based on Nobelman, the Sixth Circuit decided that a debtor may use § 1322(b)(2) to modify a claim that has no secured component. Lane, 280 F.3d at 669. In reaching this decision, the Sixth Circuit placed special emphasis on the Supreme Court’s endorsement of a § 506(a) judicial valuation of collateral as the proper first step in determining the secured status of a claim. Id. at 667. The Lane court reasoned that such an approach “means that it must make a difference whether the overall claim belongs in the pigeonhole marked ‘secured claims’ or the pigeonhole marked ‘unsecured claims,’ as those terms are defined in § 506(a).” Id. The Sixth Circuit concluded that “the only apparent reason why the classification could make a difference is that the special protection accorded by the antimodification provision [of § 1322(b)(2) ] extends to the rights of holders of ‘secured claims’ and does not extend to the rights of holders of ‘unsecured claims.’ ” Id. at 668.

Nobelman and Lane address § 506(a) and § 1322(b)(2); they do not consider the pre-existing decision in Dewsnup or [642]*642§ 506(d).1 Caulkett itself specifically rejected applying the logic of Nobelman in the § 506(d) context:

Nor do we think Nobelman v. American Savings Bank supports the debtors’ proposed distinction. Nobelman said nothing about the meaning of the term “secured claim” in § 506(d).

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Cite This Page — Counsel Stack

Bluebook (online)
541 B.R. 639, 2015 WL 7307239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-travers-kyeb-2015.