In re Varner

530 B.R. 621, 2015 Bankr. LEXIS 1586, 2015 WL 2095822
CourtUnited States Bankruptcy Court, M.D. North Carolina
DecidedMay 1, 2015
DocketCase No. 14-51410
StatusPublished
Cited by2 cases

This text of 530 B.R. 621 (In re Varner) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Varner, 530 B.R. 621, 2015 Bankr. LEXIS 1586, 2015 WL 2095822 (N.C. 2015).

Opinion

ORDER

CATHARINE R. ARON, UNITED STATES BANKRUPTCY JUDGE

THIS MATTER came on for hearing on April 1, 2015, in Winston-Salem, North Carolina upon the objection by the Chapter 13 Trustee (the “Trustee”) to confirmation of the plan. Thomas Anderson appeared on behalf of Don and Patti Varner (the “Debtors”), and Kathryn Bringle appeared on behalf of the Trustee. After considering the documents on the record and the arguments of counsel, the Court concludes that the Trustee’s objection to the Debtor’s plan should be sustained.

Background

The Debtors own real property in Pilot Mountain, North Carolina, that serves as their primary residence. In 2003 the Debtors executed a note, secured by a deed of trust, to CitiFinancial Mortgage (“CitiFinancial”) with a variable interest rate of 9.75%. On December 30, 2014, the Debtors filed for relief under Chapter 13 of Title 11. CitiFinancial filed a proof of claim purporting to have a secured claim of $42,087.68 with an annual interest rate of 9.08%. According to the documents attached to their proof of claim, the note will mature in approximately August 2018.

The Debtors’ proposed plan seeks to modify CitiFinancial’s interest rate. In the Debtor’s proposed plan CitiFinancial will be paid in full as a secured claim over the life of the plan, which is estimated to last at least three years. Rather than the 9.08% interest rate listed in its proof of claim, the Debtor’s propose to pay CitiFi-nancial at a rate of 5.25%. The Trustee filed an objection to confirmation of the Debtor’s plan, seeking guidance from the Court as to the appropriate interest rate for CitiFinancial’s claim for plan purposes.

Discussion

The ability of a debtor to modify secured claims in Chapter 13 is limited. A debtor’s Chapter 13 plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence.” 11 U.S.C. § 1322(b)(2). However, under § 1322(c)(2), a security interest in a debtor’s principal residence can in fact be modified if “the last payment on the original payment schedule ... is due before the date on which the final payment under the plan is due.” In other words, § 1322(c)(2) allows secured claims to be modified, notwithstanding § 1322(b)(2), if the claim matured pre-petition or will mature during the life of the plan. See In re McNeill, 2006 WL 1314333, at *3 (Bankr.M.D.N.C. May 12, 2006) (“There is no distinction made in the statute between curing a default on a loan that matures post-petition, but prior to completion of the plan, and a loan that matures pre-petition.”). In such instances, “the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5).” 11 U.S.C. § 1322(c)(2).

The Fourth Circuit has previously interpreted the language in § 1322(c)(2). In In re Witt, the debtors proposed a Chapter 13 plan to bifurcate a secured creditor’s claim, which was secured by their primary residence, into a secured and unsecured claim. 113 F.3d 508, 510 (1997). This proposed [623]*623plan was made after the Supreme Court ruled in Nobelman v. Am. Savs. Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), that § 506(a) does not allow for the bifurcation of a debt that secures a debt- or’s primary residence. The debtors acknowledged that their plan was similar to the plan rejected by Nobelmcm, but argued that the Bankruptcy Reform Act of 1994, which amended § 1322(c) to include its present language, allowed them to modify a secured creditor’s claim by bifurcation. Witt, 113 F.3d at 510-11. The issue before the Fourth Circuit was whether the addition of § 1322(c)(2) overruled Nobel-man and allowed for bifurcation.

The Fourth Circuit ultimately disagreed with the debtors’ argument. The key phrase in § 1322(c)(2), “the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5),” was determined to be ambiguous in what the statute specifically permitted: modification of the payment or the claim itself. Id. at 511. Viewing the purpose of § 1322(c)(2) as addressing plan payments, the Fourth Circuit interpreted “claim” to be a part of the phrase “payment of the claim” such that the provision authorized the modification of payments and not the claim itself. Id. Additionally, the Fourth Circuit drew support from the legislative history of § 1322(c)(2), which made no mention of Nobelmcm or Congress’s intention to overrule it. Id. at 513. After interpreting § 1322(c)(2) to only allow for the modification of payments, the Fourth Circuit ruled that a debtor may not bifurcate a secured debt for a hen on a debtor’s principal residence. Id. at 513-14.

The reaction to Witt outside of the Fourth Circuit was uniformly critical. The Eleventh Circuit rejected Witt’s analysis, calling it “a grammatically strained reading of the statute ... [which] contradicts the rule of the last antecedent.” Am. Gen. Fin., Inc. v. Paschen (In re Paschen), 296 F.3d 1203, 1208-09 (11th Cir.2002). See also 8 Collier on Bankruptcy ¶ 1322.17 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (citing favorably Paschen and calling Witt’s reading of § 1322(c)(2) “strained”). Another court found that “the Witt court’s reading of § 1322(c) makes nonsense of the cross reference to § 1325(a) ...” First Union Mortg. Corp. v. Eubanks (In re Eubanks), 219. B.R. 468, 473 (6th Cir. BAP 1998).

The reaction to Witt by lower courts within the Fourth Circuit was equally critical. In In re Hubbell, a secured creditor objected to a Chapter 13 plan confirmation and cited Witt for the proposition that the plan could not modify the contractual interest rate of its claim. 496 B.R. 784 (Bankr.E.D.N.C.2013). The Hubbell court confined Witt by noting criticism of the decision by other courts and by limiting its holding “that Section 1322(c)(2) did not overrule Nobelman.” Id. at 791-92 (quoting Nat’l Mortg. Ass’n v. Griffin (In re Griffin), 489 B.R. 638, 642-43 (Bankr.D.Md.2013)). If Witt is understood in this narrow manner, then the modification of a secured- creditor’s interest rate under § 1322(c)(2) is permissible as a mere “restructuring [of] the interest rate and other payment terms.” Hubbell, 496 B.R. at 792. Additionally, as Hubbell itself points out, there are other courts who have allowed the modification of interest rates post-Wfti. See Griffin, 489 B.R. at 644 (stating the court would conduct an eviden-tiary hearing if the parties did not agree on an interest rate); In re Farooq, 2010 WL 348039, at *2 (Bankr.E.D.Va. Jan. 29, 2010) (“The rate of interest need not be the contract rate ... although the claim cannot be bifurcated into secured and unsecured components, it can be reamor-tized”); In re Joyner, 2008 WL 4346467, at *2 (Bankr.E.D.N.C. Sep. 17, 2008) (“[A]n exception to this anti-modification provi

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Bluebook (online)
530 B.R. 621, 2015 Bankr. LEXIS 1586, 2015 WL 2095822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-varner-ncmb-2015.