Shull v. PNC Bank (In re Shull)

493 B.R. 453
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedMay 31, 2013
DocketBankruptcy No. 1-12-bk-04856 RNO; Adversary No. 1-12-ap-00308 RNO
StatusPublished
Cited by7 cases

This text of 493 B.R. 453 (Shull v. PNC Bank (In re Shull)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shull v. PNC Bank (In re Shull), 493 B.R. 453 (Pa. 2013).

Opinion

OPINION

ROBERT N. OPEL, II, Bankruptcy Judge.

This Adversary Proceeding was commenced by a six-paragraph Complaint to Determine Extent of Secured Status filed by the Plaintiff, Donnie E. Shull, Jr., (“Debtor” or “Plaintiff’) against the Defendant, PNC Bank, (“Bank”). On April 5, 2013, the Debtor filed a Motion for Summary Judgment. On April 8, 2013, the Bank, in turn, filed its Motion for Summary Judgment. For the reasons stated below, I will grant the Bank’s Motion for Summary Judgment and deny the Debt- or’s Motion for Summary Judgment.

I. JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(2). This is a core proceeding under 28 U.S.C. § 157(b)(2)(E).

II. FACTS

The Debtor filed a Chapter 13 bankruptcy on August 17, 2012. The Debtor has filed a Chapter 13 Plan to which the Bank has objected and, at this writing, there is no confirmed Chapter 13 plan.

[455]*455The Complaint is titled “Complaint to Determine Extent of Secured Status”. Essentially, the Complaint avers that the Bank’s mortgage is in a second position and that its lien on the Debtor’s residence “... is also by its terms secured by rents and personal property.” Pl.’s Compl. ¶ 4. The Complaint further alleges that the market value of the Debtor’s residence is $143,000.00 and prays that the Bank’s second mortgage (“Mortgage” or “Bank’s Mortgage”) be reduced to $43,301.64, the alleged remaining equity in the residence after the allowance of a first mortgage held by JP Morgan Chase.

The Bank timely answered the Complaint. The Answer affirmatively avers that the Mortgage does not grant the Bank the right to collect rents. Further, the Answer alleges “... a security interest is granted to PNC Bank that is limited to fixtures.” Def.’s Answer ¶ 4. The Answer further avers that modification of the Bank’s Mortgage is prevented by the anti-modification provisions contained in 11 U.S.C. § 1322(b)(2).1

The dueling Motions for Summary Judgment have been briefed and those matters are ripe for decision.

III. DISCUSSION

A. Summary Judgement Standard

Summary judgment is governed by Federal Rule of Civil Procedure 56 which is made applicable to bankruptcy adversary proceedings by Federal Rule of Bankruptcy Procedure 7056. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party has the burden of demonstrating that a genuine issue of material fact is absent. In re Madera, 363 B.R. 718, 724 (Bankr.E.D.Pa.2007).

“In evaluating the evidence, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 276 (3d Cir.2001). Further, "... at the summary judgment stage the judge’s function is not to himself weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

B. Anti-Modification Clause

Chapter 13 of the Bankruptcy Code vests a debtor with significant rights and responsibilities. For example, subject to notice and an opportunity to be heard, a Chapter 13 debtor may sell property during the pendency of the Chapter 13 proceeding. 11 U.S.C. § 1303. Further, if a Chapter 13 debtor obtains confirmation of his or her Chapter 13 plan, after the completion of payments under the plan, the Chapter 13 debtor will receive a discharge. The Chapter 13 discharge is broader in certain respects than the discharge obtained under Chapter 7 or 11. For example, obligations which are within the ambit of § 523(a)(15) — generally, obligations to a former spouse incurred in the course of a divorce — are dischargeable in a Chapter 13 proceeding. 11 U.S.C. § 1328(a)(2).

[456]*456A Chapter 13 plan may also provide for the curing or waiving of any default. 11 U.S.C. § 1322(b)(3); In re Connors, 497 F.3d 314, 318 (3d Cir.2007).

However, a Chapter 13 debtor’s ability to modify the rights of the holders of a secured claim, like the Bank, is not unlimited. Section 1322(b)(2) provides that a plan may:

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 ...

(emphasis added). The Third Circuit has noted, with respect to § 1322(b)(2), often referred to as the anti-modification clause:

The legislative history of § 1322(b)(2) indicates that it was designed to protect and promote the increased production of homes and to encourage private individual ownership of homes as a traditional and important value in American life. The statute does that by affording anti-modification protection to home mortgage lenders in order to encourage the flow of capital into the home lending market.

In re Ferandos, 402 F.3d 147, 151 (3d Cir.2005) (internal citations omitted).

The scope of the protection provided to a residential mortgage lender under the anti-modification clause was effectively broadened when the Bankruptcy Code was amended in 2005 by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). BAPCPA did so by defining the term “debtor’s principal residence” as:

(13A) The term “debtor’s principal residence”—
(A)means a residential structure if used as the principal residence by the debtor, including incidental property, without regard to whether that structure is attached to real property;

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Cite This Page — Counsel Stack

Bluebook (online)
493 B.R. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shull-v-pnc-bank-in-re-shull-pamb-2013.