Lomas Mortgage USA v. Wiese

980 F.2d 1279
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 4, 1992
DocketNos. 91-36082, 91-36173
StatusPublished
Cited by30 cases

This text of 980 F.2d 1279 (Lomas Mortgage USA v. Wiese) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lomas Mortgage USA v. Wiese, 980 F.2d 1279 (9th Cir. 1992).

Opinion

T.G. NELSON, Circuit Judge:

Lomas Mortgage (Lomas), a partially secured and unsecured creditor of Chapter 13 debtors, Daniel and Sue Ann Wiese, held a security interest in the Wieses’ residence. Lomas appeals the district court’s partial affirmance of the bankruptcy court’s order confirming the Wieses’ Chapter 13 plan. The Wieses cross-appeal the district court’s calculation of the amount of the secured claim in their residence.

I. BACKGROUND

The Wieses purchased their residential real property in September, 1985, with the aid of a mortgage loan which was secured by a deed of trust against their residence. The loan was covered by private mortgage insurance which protected the lender in case of default by the Wieses and a decline in the value of the collateral. The note and deed of trust were assigned by the original lender to the Federal National Mortgage Association (FNMA).

The Wieses filed this Chapter 13 proceeding with the Bankruptcy Court on January 25, 1990. At the time of their petition, the residence was worth less than the $155,000 balance still outstanding on the debt, due to a downturn in the Alaskan real estate market and economy. The bankruptcy court confirmed the Wieses’ Chapter 13 plan on November 2, 1990, in an order that provided:

The debtor and Lomas Mortgage USA and Federal National Mortgage Association ... have stipulated that the secured claim of Secured Creditor is $145,000.00, less $11,000.00 to repair a septic system and certain other “transaction costs” of $13,500.00, for [a] net figure of $120,-500.... This is secured by a deed of trust in favor of Secured Creditor against the real property that is the debt- or’s principal residence. Secured Creditor therefore has an allowed secured claim of [$120,500]. The balance [of] Secured Creditor’s claim is disallowed as a secured claim but is allowed as a general unsecured claim....

Lomas appealed the order of confirmation to the district court which affirmed the confirmation of the plan and reversed the bankruptcy court’s reduction of the secured claim based upon transaction costs. As a result of the partial reversal, Lomas’ secured claim was raised to the full $145,-000. Lomas appealed and the Wieses cross-appealed contending the transaction costs were valid.

Lomas concedes that our decision in Hougland v. Lomas & Nettleton Co. (In re [1281]*1281Hougland), 886 F.2d 1182 (9th Cir.1989), which permitted modification of unsecured portions of the debt, controls. It argues, however, that we should reverse our earlier ruling because the plain meaning of 11 U.S.C. § 1322(b) prohibits modification of both the secured and unsecured portions of a residential mortgagee’s claim. Lomas claims that Hougland was based on faulty reasoning because it “ignored” the definition of the word “claim” provided by section 101(5)(A) as a “right to payment” whether it is secured or unsecured.1 Second, Lomas urges us to overrule Hougland in light of the recent Supreme Court ruling in Dewsnup v. Timm, — U.S. -, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). Finally, Lomas contends that Hougland’s interpretation of the statute creates absurdities by eliminating the special protection for residential mortgagees. We reject these contentions and affirm.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the interpretation of a statute by the district court and bankruptcy - court. In re Am. Mariner Indus., Inc., 734 F.2d 426, 429 (9th Cir.1984).

III. DISCUSSION

A. Bifurcation and Modification of Unsecured Claims

Hougland concerns the interplay between two bankruptcy statutes, 11 U.S.C. §§ 506(a) and 1322(b)(2). 886 F.2d at 1183. That case resolved two issues and held that: (1) a Chapter 13 debtor could bifurcate a claim secured only by the debt- or’s principal residence into a secured and unsecured portion; and, (2) the lender’s rights on the unsecured claim could be modified. Id. at 1185. We now reaffirm our holding in Hougland.

Initially, Hougland noted that “ ‘[s]ub-section (a) of § 506 provides that a claim is secured only to the extent of the value of the property on which the lien is fixed; the remainder of that claim is considered unsecured.’ ” Id. at 1183 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 239, 109 S.Ct. 1026, 1029, 103 L.Ed.2d 290 (1989)). Second, the court observed that section 1322, dealing with debtors’ plans in Chapter 13 proceedings, provides in part:

(b) Subject to subsections (a) and (e) of this section, the plan may ...
(2) 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, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims....

Id. (emphasis in original). Finally, after acknowledging the split in authority, Houg-land agreed with the line of cases which “found that nothing in section 1322 affects the determination under section 506(a) that an undersecured claim can be divided into a secured portion and an unsecured portion.” Id.

In allowing the modification of the unsecured portion of a claim, Hougland reasoned that the meaning of the statute begins and ends with the language of the statute itself:

It should first be noted that it is clear that section 506(a) applies to Chapter 13 proceedings. See § 103(a). There is, therefore, no reason to believe that the phrases “secured claim” and “unsecured claim” in section 1322(b) have any meaning other than those given to them by section 506(a). It follows that Lomas’ claim had a “secured claim” and an “unsecured claim” component.
That being said, we can look at the “other than” clause. That clause follows the secured claim portion of the sentence and precedes the unsecured claim portion. Certainly it refers to what preceded it, and indicates that a secured resi[1282]*1282dential real estate claim will have special protection. Indeed, if the referent of the “other than” clause is not the secured claim language which precedes it, what could the referent be? It would be most unusual if it were the unsecured claim language or the whole sentence. That strongly indicates that only the “secured claim” portion is protected.

Hougland, 886 F.2d at 1183-84.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

KIETH EDWARD KRANTZ
D. Montana, 2020
Brawders v. County of Ventura (In Re Brawders)
503 F.3d 856 (Ninth Circuit, 2007)
Enewally v. Washington Mutual Bank (In re Enewally)
368 F.3d 1165 (Ninth Circuit, 2004)
In Re Freudenheim
189 B.R. 279 (W.D. New York, 1995)
Dupree v. Lomas Mortgage USA, Inc. (In Re Dupree)
183 B.R. 270 (W.D. Oklahoma, 1995)
In Re Myers
178 B.R. 518 (W.D. Oklahoma, 1995)
In re Capital West Investors
178 B.R. 824 (N.D. California, 1995)
Assocs Cmercl Corp v. Rash
Fifth Circuit, 1994
In Re Rivers End Apartments, Ltd.
167 B.R. 470 (S.D. Ohio, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
980 F.2d 1279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lomas-mortgage-usa-v-wiese-ca9-1992.