Malone v. Citibank NA ex rel. SACO 1 Trust 2006-7 (In re Malone)

489 B.R. 275, 69 Collier Bankr. Cas. 2d 938, 2013 Bankr. LEXIS 1282, 2013 WL 1342942
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMarch 28, 2013
DocketNo. 12-61289-MGD
StatusPublished
Cited by5 cases

This text of 489 B.R. 275 (Malone v. Citibank NA ex rel. SACO 1 Trust 2006-7 (In re Malone)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malone v. Citibank NA ex rel. SACO 1 Trust 2006-7 (In re Malone), 489 B.R. 275, 69 Collier Bankr. Cas. 2d 938, 2013 Bankr. LEXIS 1282, 2013 WL 1342942 (Ga. 2013).

Opinion

ORDER GRANTING DEBTOR’S MOTION TO DETERMINE SECURED STATUS OF CLAIM

MARY GRACE DIEHL, Bankruptcy Judge.

This case presents the legal question of whether section 506 of the Bankruptcy Code permits a chapter 7 debtor to “strip off’ a junior mortgage lien where the value of the real property is less than the amount of debt securing the senior lien. This action is complicated by the recent unpublished decision entered by the Eleventh Circuit. In re McNeal, 477 Fed.Appx. 562 (11th Cir.2012). Irrespective of the unpublished nature of the McNeal opinion, this court gives great weight and deference to any ruling by the Eleventh Circuit. In the absence of the McNeal decision, this court would apply Dewsn-up’s § 506(d) analysis to these facts. Yet, the three judge per curium, panel in McNeal addressed this same issue and came to a different conclusion. For the reasons explained below, Debtor’s motion is GRANTED.

Jurisdiction over this action is set forth in 28 U.S.C. §§ 157(b) and 1334(b). The matter is a core proceeding under 28 U.S.C. § 157(b)(2)(K) and venue is proper.

1. FACTS

Debtor first filed a chapter 13 bankruptcy petition and later converted to a chapter 7 case. The Motion to Determine Status of Wholly Unsecured Second Mortgage on Real Property (“Motion”) was filed when Debtor’s case was pending as a chapter 13, but the court heard this matter only after conversion to chapter 7. (Docket No. 14). Respondent (“Citibank”) filed a response in opposition to the Motion (Docket No. 32), and a hearing was held on the matter. Milton D. Jones appeared on behalf of Debtor and Whitney Groff appeared for Citibank. The parties submitted post-hearing briefs,1 and the matter was taken under advisement.

The parties agree on the relevant facts. Debtor owns real property, 6925 Beaver Trail, Riverdale, Georgia, which is subject to two security deeds. JPMorgan Chase Bank, NA purportedly holds or services the first priority security deed. The outstanding balance on its corresponding note is approximately $153,088.37. Citibank holds a valid second priority security deed on the Property and the balance on the corresponding note is approximately $32,197.36. The parties agree that the value of Property was $62,100.00.2

[277]*277II. LAW

Debtor’s motion raises the question of whether section 506 of the Bankruptcy Code permits a chapter 7 debtor to “strip off,” or completely void, a junior security deed where the value of the collateral does not extend to the subordinate lien. In a chapter 7 case, the analysis of this issue is limited to the operation of 11 U.S.C. § 506(a) and (d).

Section 506(a) determines the secured status of a claim and allows for an un-dersecured claim to be bifurcated. The relevant statutory language for this action is:

An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim.

11 U.S.C. § 506(a)(1). Debtor’s “strip off’ theory relies upon the interplay of § 506(a)(1)’s bifurcation tool with § 506(d). Section 506(d) provides: “To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void...” 11 U.S.C. § 506(d).3

Debtor’s ability to use § 506(d) to void Citibank’s lien is an issue of statutory interpretation. This is not a novel question of statutory interpretation; however, the parties disagree as to what caselaw is binding precedent on this court. The legal issue presented here is complicated by the recent unpublished decision entered by the Eleventh Circuit. In re McNeal, 477 Fed.Appx. 562 (11th Cir.2012) (per curium). The unpublished nature of McNeal is used by each party in support of its argument for opposite outcomes.

Eleventh Circuit Rule 36-2 provides that an unpublished decision does not serve as binding precedent for lower courts. Of course, the McNeal opinion operates as persuasive authority. Debtor urges the court to adopt McNeal’s rationale, which determined that the controlling law in this circuit permits a chapter 7 debtor to “strip off’ a wholly unsecured lien by relying on the holding in Folendore v. U.S. Small Business Administration, 862 F.2d 1537 (11th Cir.1989). McNeal, 477 Fed.Appx. at 564-65. In contrast, Citibank asserts that McNeal is wrongly decided and that the intervening Supreme Court decision of Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) prohibits voiding its junior security deed. The court will first summarize Dewnsup, McNeal, and Folendore to best determine the applicable binding precedent.

A. Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).

The relevant facts in Dewsnup were that the debtor and creditors entered into a loan agreement, which was secured by a deed of trust on two parcels of the debtor’s farmland. Dewsnup v. Timm, 502 U.S. at 412, 112 S.Ct. 773. The debtor defaulted and her chapter 7 bankruptcy4 filing [278]*278stayed the foreclosure. Id. at 412-13, 112 S.Ct. 773.

During the chapter 7 proceeding, the debtor initiated an adversary proceeding to “strip down”5 the balance she owed on the loan to the present fair market value of the real property securing the loan. Id. The debtor claimed her property was “underwater” — that the $120,000 outstanding balance of the loan exceeded the fair market value of the farmland. Id. The debtor reasoned that a “strip down” was authorized “by the interrelationship of the security-reducing provision of § 506(a) and the hen-voiding provision of § 506(d).” Id.

The bankruptcy court, the district court, and the Tenth Circuit all disagreed and refused to allow the debtor to “strip down” the claim under the terms of the Bankruptcy Code. Id. at 413-14, 112 S.Ct. 773. The bankruptcy court reasoned that § 506 did not apply to the facts at hand because the trustee abandoned the farmland pursuant to § 554, thereby rendering § 506 inapplicable because the property was no longer “property in which the estate has an interest.” 11 U.S.C. § 506

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489 B.R. 275, 69 Collier Bankr. Cas. 2d 938, 2013 Bankr. LEXIS 1282, 2013 WL 1342942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-citibank-na-ex-rel-saco-1-trust-2006-7-in-re-malone-ganb-2013.