Oregon Ex Rel. Director of the Department of Veterans' Affairs v. Hurt (In Re Hurt)

158 B.R. 154
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedSeptember 21, 1993
DocketBAP No. OR-92-1258-ARJ, Bankruptcy No. 391-35495 H13
StatusPublished
Cited by22 cases

This text of 158 B.R. 154 (Oregon Ex Rel. Director of the Department of Veterans' Affairs v. Hurt (In Re Hurt)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel 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
Oregon Ex Rel. Director of the Department of Veterans' Affairs v. Hurt (In Re Hurt), 158 B.R. 154 (bap9 1993).

Opinions

OPINION

ASHLAND, Bankruptcy Judge:

The State of Oregon appeals the bankruptcy court’s order confirming the debtors’ Chapter 13 plan. In re Hurt, 136 B.R. 859 (Bankr.D.Or.1992). The plan attempted to “cure” a default on a mortgage after foreclosure judgment, but prior to the foreclosure sale. We affirm.

STATEMENT OF THE FACTS

The relevant facts are not in dispute. The Oregon Department of Veterans’ Affairs held a note secured by a mortgage against the principal residence of the debtors Charles and Peggy Hurt. The mortgage was judicially foreclosed on June 14, 1991. Prior to the sheriff’s sale, the Hurts filed a Chapter 13 petition.

The Hurts’ plan proposed curing the pre-petition default during the life of the plan while maintaining the regular monthly payments under the original note. The Department of Veterans’ Affairs objected to the terms of the plan maintaining that the Hurts did not have a right to cure under 11 U.S.C. § 1322(b)(5). The bankruptcy court overruled the Veterans’ objection stating that “§ 1322(b)(5) allows a debtor to cure ‘any default’ in the performance of an obligation that was secured by the property in question and maintain payments while the case is pending.” In re Hurt, 136 B.R. 859, 861 (Bankr.D.Or.1992). This appeal followed.

ISSUES

Whether 11 U.S.C. § 1322(b)(5) permits the debtor to cure a default on a debt secured by the debtors’ principal residence following the entry of the foreclosure judgment but prior to the foreclosure sale.

STANDARD OF REVIEW

The interpretation of 11 U.S.C. § 1322(b)(5) is a question of law reviewed de novo. In re Quintana, 915 F.2d 513, 515 (9th Cir.1990); In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986); In re Braker, 125 B.R. 798, 799 (9th Cir. BAP 1991).

DISCUSSION

I. The Circuit Courts Have Not Reached An Identifiable Consensus Interpreting 11 U.S.C. § 1322(b)(5)

Section 1322(b)(5) enables a debtor to cure a default on a home mortgage through a Chapter 13 plan. Section 1322(b)(5) provides:

(b) Subject to subsections (a) and (c) of this section, the plan may—
(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due;

11 U.S.C. § 1322(b)(5). However, § 1322(b)(5) does not specify when this right to cure terminates: (1) at the time of the contractual acceleration; (2) upon entry of foreclosure judgment; (3) at the time of the foreclosure sale; or (4) upon expiration of the redemption period. See, In re Roach, 824 F.2d 1370, 1372 (3d Cir.1987).

[156]*156All of the circuit courts that have addressed the cure provisions in § 1322(b)(5) agree that the default may be cured after the contractual acceleration of the full mortgage. See, In re Thompson, 894 F.2d 1227, 1230 (10th Cir.1990); Justice v. Valley Nat. Bank, 849 F.2d 1078 (8th Cir.1988); In re Roach, 824 F.2d 1370, 1374-77 (3d Cir.1987); In re Metz, 820 F.2d 1495, 1497 (9th Cir.1987); In re Glenn, 760 F.2d 1428, 1431-36 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); In re Clark, 738 F.2d 869, 874 (7th Cir.1984); Grubbs v. Houston First Am. Sav. Ass’n, 730 F.2d 236, 237 (5th Cir.1984) (en banc) vacating 718 F.2d 694 (5th Cir.1983); In re Taddeo, 685 F.2d 24, 26-27 (2d Cir.1982). On the other hand, none of the circuit courts have held that a home mortgage default may be cured during a redemption period following a foreclosure sale. Contra, In re Ivory, 32 B.R. 788 (Bankr.D.Or.1983). Between these polar points on the time line, however, there is substantial disparity in theory among the circuit courts attempting to delineate a definitive cutoff point for a cure. Three theories have evolved to pin point exactly when a debtor may no longer cure: (1) the pragmatic theory; (2) the state law theories; and (3) the estate theory.

A. The Pragmatic Theory

The “pragmatic” theory suggests that the foreclosure sale is the cutoff date for § 1322(b)(5) cure provisions. In re Glenn, 760 F.2d 1428, 1435 (6th Cir.1985). The Sixth Circuit adopted the pragmatic time period primarily because it “works the least violence to the competing concerns evident in the language of the statute....” Glenn, 760 F.2d at 1435. The court’s frustration in attempting to establish a specific cutoff point is evident in the following passage:

We despair of finding any clear-cut statutory language or legislative history that points unerringly to a construction of the statute that is free from challenge. Each of the cases and each result reached therein is subject to some objection either in theory or in practice.

Glenn, 760 F.2d at 1435.

B. The State Law Theory

The “state law” theory looks at a specific state’s statute to delineate the cutoff point for cure. This theory, however, is divided into two subcategories: the title/lien theory and the mortgage contract theory.

1. The Title/Lien Theory

The Seventh Circuit looked at state law to determine whether or not the mortgagor retained legal title in the property after filing the bankruptcy petition, such that the property was part of the estate under 11 U.S.C. §§ 541 and 1306. In re Clark, 738 F.2d 869, 871 (7th Cir.1984). In Clark,

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Bluebook (online)
158 B.R. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oregon-ex-rel-director-of-the-department-of-veterans-affairs-v-hurt-in-bap9-1993.