Pawtucket Credit Union v. Picchi (In re Picchi)

448 B.R. 870
Bankruptcy Appellate Panel of the First Circuit·Decided April 11, 2011·No. BAP No. RI 10-055; Bankruptcy No. 10-11020-ANV·Published·Cited by 3 cases

Opinion

KORNREICH, Bankruptcy Judge.

Marie T. Picchi (“Picchi”) is the debtor in this chapter 13 case from the District of Rhode Island. Pawtucket Credit Union (“Pawtucket”) is the holder of a claim secured by a second mortgage against Pic-chi’s two-family home. Picchi’s plan, which modifies Pawtucket’s rights as a mortgagee, was confirmed by the bankruptcy court over Pawtucket’s objection. On appeal Pawtucket argues that the bankruptcy court erred in concluding that § 1322(b)(2) permits a debtor to modify the rights of a mortgagee in a two-family home.1 For the reasons expressed below, we AFFIRM.

BACKGROUND

Picchi filed a chapter 13 petition in March 2010. Her schedules show her to be the owner of a two-family home (the “property”) valued at $125,000.00. She resides in one unit and rents out the second unit. Picchi’s schedules also show the property to be subject to a first mortgage in favor of Navigant Credit Union in the amount of $134,928.00, a second mortgage in favor of Pawtucket in the amount of $87,032.00, and a third mortgage in favor of Beneficial Mortgage Co. of Rhode Island (“Beneficial”) in the amount of $16,382.00.

Picchi’s plan reduced the value of Paw-tucket’s secured claim to zero because, at $125,000.00, the value of the property would have been consumed totally by the senior secured claim.2 Pawtucket objected to its treatment under the plan, arguing that Picchi had undervalued the property and that the anti-modification clause in § 1322(b)(2) prohibited Picchi from modifying its rights.3 Pawtucket argued that [872] the rule permitting modification of a mortgagee’s rights in a multi-unit dwelling, see Lomas Mortgage, Inc. v. Louis, 82 F.3d 1 (1st Cir.1996), has been abrogated by the definitions of “debtor’s principal residence” and “incidental property” introduced into the Code by BAPCPA. Specifically, Paw-tucket urged the bankruptcy court to conclude that its claim was secured solely by Picchi’s “principal residence” and that the second unit in the two-family home was simply “incidental property.” The bankruptcy judge rejected this notion and overruled Pawtucket’s objection based upon his own decision in In re French, 174 B.R. 1 (Bankr.D.Mass.1994).4 An order confirming the plan was entered. This appeal followed.

On December 22, 2010, after the briefs were filed, the Bankruptcy Technical Corrections Act of 2010 (“BTCA”) became law without any express statement of temporal scope. See Pub.L. 111-327, 124 Stat. 3557 (Dec. 22, 2010). Although the legislative history provides that BTCA was “not intended to enact any substantive change to the Bankruptcy Code,” see 156 Cong. Rec. H7158 (daily ed. Sept. 28, 2010) (statement of Rep. Smith), there is no clear statement in the record on whether it was intended to have prospective or retroactive applicability. Among other things, BTCA amends § 101(13A) of the Code which defines debtor’s principal residence.5 The legislative record indicates that “[this] amendment clarifies that the definition pertains to a structure used by the debtor as a principal residence.” See 156 Cong. Rec. H7158 (daily ed. Sept. 28, 2010). Despite the centrality of the meaning of “debtor’s principal residence” to the outcome of this case, neither party has asked us (a) to determine whether the revised definition contained in BTCA should apply in this case; or (b) to remand this case for such a determination in the bankruptcy court. Therefore, our review of the bankruptcy court’s decision will be based upon the law as it was at the time of that decision.

JURISDICTION

We have jurisdiction to hear appeals from final judgments, orders and decrees and, subject to our discretion, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it “ends the litigation on the merits and leaves nothing for the court to do but [873] execute the judgment.” Id. at 646 (citations omitted). The bankruptcy court’s decision to modify Pawtucket’s claim under § 1322(b)(2) is a final order. See E. Sav. Bank, FSB v. LaFata (In re LaFata), 483 F.3d 13, 18 (1st Cir.2007); Carvalho v. Fed. Nat’l Mortgage Ass’n (In re Carvalho), 335 F.3d 45, 49 (1st Cir.2003) (holding that an order confirming a plan is customarily res judicata to all issues that were or could have been decided during the confirmation process).

STANDARD OF REVIEW

The facts in this case are not in dispute. We will apply de novo review to the legal issues presented in this appeal. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010); Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008).

DISCUSSION

The bankruptcy court did not err in permitting the modification of Pawtucket’s secured claim and confirming Picchi’s plan. These actions were in accord with the principle of claim bifurcation, codified in § 506(a)6 and did not violate the anti-modification clause contained within § 1322(b)(2). Moreover, with respect to Pawtucket’s specific concerns, the definitions of “debtor’s principal residence” and “incidental property” introduced by BAPCPA did not alter the scope of the anti-modification clause.

The bifurcation process separates an under-secured claim into two parts: a secured claim pegged at the value of the collateral and an unsecured claim for the difference between the value of the debt and the value of the collateral. In chapter 13, as in other chapter proceedings, bifurcation may be forced upon a secured party by a plan proponent. However, this process, known as “strip down” or “cram down,” is barred by § 1322(b)(2) where the claim is “secured only by a lien on the debtor’s principle residence.” Nobelman v. American Sav. Bank, 508 U.S. 324, 332, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). But, in deciding Nobelman, the Supreme Court did not address when a claim is secured only by a security interest in real property that is the debtor’s principle residence.

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Pawtucket Credit Union v. Picchi (In re Picchi), 448 B.R. 870 (bap1 2011).

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