Matter of Bunn

128 B.R. 281, 1991 Bankr. LEXIS 789, 1991 WL 104374
CourtUnited States Bankruptcy Court, D. Idaho
DecidedJune 13, 1991
Docket19-40057
StatusPublished
Cited by10 cases

This text of 128 B.R. 281 (Matter of Bunn) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Idaho primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Bunn, 128 B.R. 281, 1991 Bankr. LEXIS 789, 1991 WL 104374 (Idaho 1991).

Opinion

MEMORANDUM OF DECISION

JIM D. PAPPAS, Bankruptcy Judge.

Background and Facts

This case presents interesting issues concerning the relationship of provisions under several chapters of the Bankruptcy Code. The facts are not complicated.

In 1988, the Court confirmed Debtors’ Chapter 13 plan which called for payment to First Security Bank of $4,700 over 36 months, together with interest of 12% per annum on its allowed secured claim as to Debtors’ vehicle. The value on the vehicle and payment terms had been negotiated and agreed to by the parties, and confirmation of the plan was therefore uncontested by the Bank. The plan also contained the following provision as to creditors holding secured claims:

*282 Any portion of the debt owed to a creditor in excess of the allowed value of the collateral will be treated in this plan as an unsecured claim. Each secured creditor shall retain the lien securing his (sic) claim, until the allowed secured claim has been paid as provided herein.

At this agreed value, the Bank also had a substantial unsecured claim for the balance due on its contract.

Debtors made a total of 26 payments to the Trustee through the plan before the case was converted to a Chapter 7 case on February 19, 1991. Of the monies paid in, the Trustee distributed a total of $4,129 on the Bank’s secured claim of which about $523 was attributable to interest, with the balance applicable to the “principal” amount due on the claim.

Mrs. Bunn, now divorced, has filed a motion under Section 722 of the Bankruptcy Code to redeem the vehicle from the lien of Bank’s assignee, Mr. Robert A. Hoag-land. 1 He has objected to the redemption, and has filed a motion for relief from the automatic stay so that he may repossess and sell the vehicle in satisfaction of his lien interest.

Debtor argues that she should be allowed to redeem the vehicle by paying Mr. Hoagland the approximate $571 balance left on the original $4,700 secured claim. If the pickup is to be revalued at this time, she claims that this balance is the current approximate value of the vehicle. By contrast, Mr. Hoagland claims the vehicle must be revalued; that it is now worth at least $3,500; and that in order for Debtor to redeem the vehicle, the Code would now require a cash payment to him in that amount, without regard to any payments made during the pendency of the Chapter 13 plan.

Both parties have eloquently argued their respective positions. However, after reviewing the authorities the Court is convinced that neither position is the correct one under the facts of this case. However, Debtor should have an opportunity to redeem the vehicle, if she can, by payment of the proper amount discussed below.

Discussion

Section 722 of the Bankruptcy Code provides:

An individual debtor may, whether or not the debtor has waived the right to redeem under this section, redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempted under section 522 of this title or has been abandoned under section 554 of this title, by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien.

11 U.S.C. § 722. The only issue presented is the amount of Mr. Hoagland’s allowed secured claim for purposes of the proposed redemption. 2

Creditor acknowledges that by confirmation of the plan the Court impliedly, if not expressly, fixed the amount of Mr. Hoag-land’s allowed secured claim at $4,700. This valuation is made under authority of Section 506(a) of the Code. Creditor now argues, however, that a new valuation is needed because under the provision cited above, the Court is instructed to determine secured claims “in light of the purpose of the valuation and of the proposed disposition or use of such property....” 11 U.S.C. § 506(a). The Court accepts the mandate of the statute, but disagrees that in application to these facts a new valuation is required.

It is true the initial valuation was made in connection with plan confirmation, *283 whereas now a motion to redeem is before the Court. However, it is also true that in both cases the proposed use or disposition of the vehicle was for Debtor to retain it and to satisfy Creditor’s allowed secured claim, originally through installment payments with time-value interest, and now in cash. Because of this, the Court cannot see why a different valuation standard should be applicable. “Once the underse-cured creditor’s claim has been divided for § 506(a) purposes in the chapter 13 case, there is no reason to divide the claim again when the case is converted.” In re Hargis, 103 B.R. 912, 916 (Bankr.E.D.Tenn.1989). Collier seems to agree with this approach:

If the allowed secured claim is not fully satisfied in the chapter 13 plan due, for example, to a hardship discharge under section 1328(b) or a conversion to chapter 7, a lien will continue to exist after the case to the extent that the allowed secured claim has not been fully paid.

5 L. King, Collier on Bankruptcy, ¶ 1300.73[4] at 1300-148-149 (15th ed. 1990).

If this approach was not adopted here, the secured creditor would receive a windfall. That is, the total “principal” amount paid through the Chapter 13 plan to Mr. Hoagland, when combined with the current value of the vehicle to be realized on repossession according to his value estimates, would likely exceed the value of the vehicle at the original petition date. In re Tluscik, 122 B.R. 728, 729 (Bankr.W.D.Mo.1991) (Creditor’s position “afford[s] an underse-cured creditor two bites of the same apple.”). It is difficult to see how this result is in harmony with Section 506(a) or why Mr. Hoagland should be preferred in comparison to the amounts realized, for example, by other creditors whose collateral was surrendered for liquidation through the plan. See 11 U.S.C. § 1325(a)(5)(C).

Were this originally a Chapter 11 case, the Bank could have made an election under Section 1111(b)(2) of the Code to have a secured claim to the full extent of the balance due, without regard to the value of the collateral. In Chapter 13 cases, however, Congress included no analogous provision and therefore it must be assumed that undersecured creditors do not have lien rights beyond the value of their collateral. Hargis, 103 B.R. at 915.

There are other reasons for the result adopted by the Court. Section 506(d) of the Code provides that:

(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void unless—

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Cite This Page — Counsel Stack

Bluebook (online)
128 B.R. 281, 1991 Bankr. LEXIS 789, 1991 WL 104374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-bunn-idb-1991.