Wong v. Green Tree Servicing, LLC (In re Wong)

488 B.R. 537
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 14, 2013
DocketBankruptcy No. 1-12-40026-ess; Adversary No. 1-12-01189-ess
StatusPublished
Cited by5 cases

This text of 488 B.R. 537 (Wong v. Green Tree Servicing, LLC (In re Wong)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wong v. Green Tree Servicing, LLC (In re Wong), 488 B.R. 537 (N.Y. 2013).

Opinion

MEMORANDUM DECISION ON THE TRUSTEE’S MOTION TO DISMISS THE ADVERSARY PROCEEDING

ELIZABETH S. STONG, Bankruptcy Judge.

Introduction

Before the Court is the motion of the Chapter 13 trustee, Marianne DeRosa, to dismiss the adversary proceeding initiated by Manuel Wong a/k/a Manuel Baldeon, against Green Tree Servicing, LLC and Mortgage World Bankers, Inc. By this action, the Debtor seeks to avoid two junior mortgage liens encumbering his principal residence and to reclassify the underlying claims as unsecured pursuant to Bankruptcy Code Section 1322(b), which allows for the modification of secured creditors’ rights in a Chapter 13 plan, and Section 506(a), which provides the framework to determine whether an allowed claim should be classified as secured.

The question posed by the Trustee’s motion is whether a debtor who has obtained a Chapter 7 discharge within the last four years, and is therefore ineligible to receive [540]*540a discharge in a subsequent Chapter 13 bankruptcy case, may nevertheless use Section 1322(b) to avoid a junior mortgage lien and treat the underlying claim as unsecured in a Chapter 13 plan.1

The defendants in this action are Green Tree Servicing, LLC (“Green Tree”) and Mortgage World Bankers, Inc. (“Mortgage World”). Green Tree and Mortgage World each holds a junior mortgage lien on the Debtor’s principal residence.

It is well settled that a Chapter 13 debt- or may not avoid the unsecured portion of a partially secured residential mortgage lien on the debtor’s principal residence and treat the underlying claim as secured only to the extent of the value of the collateral. See Nobelman v. American Sav. Bank, 508 U.S. 324, 332, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Similarly, it is well settled in the Second Circuit that a Chapter 13 debt- or may avoid a wholly unsecured junior mortgage lien and treat the underlying claim as unsecured in a Chapter 13 plan. See Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 127 (2d Cir.2001).

The issue presented here has divided courts within this District and across the country. Compare In re Miller, 462 B.R. 421, 434-35 (Bankr.E.D.N.Y.2011) (Trust, J.) (holding that a Chapter 13 debtor who may not receive a discharge pursuant to Section 1328(f) is nevertheless able to avoid a wholly unsecured junior mortgage lien in a Chapter 13 plan that treats the underlying claim as a general unsecured claim); with Orkwis v. MERS (In re Orkwis), 457 B.R. 243, 252 (Bankr.E.D.N.Y. 2011) (Grossman, J.) (holding that a Chapter 13 debtor may avoid a wholly unsecured junior mortgage lien in a Chapter 13 plan only upon the completion of plan payments and the entry of a discharge).

Many courts have found that a Chapter 13 debtor who is ineligible for discharge may nevertheless modify the rights of a wholly unsecured junior mortgagee, reasoning that the underlying claims are valued as unsecured pursuant to Section 506(a) and that the junior mortgagee’s unsecured liens are not entitled to the protections in Section 1322(b) or Section 1325(a)(5). As one court in this District concluded, consistent with the Second Circuit’s holding in Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir.2001), “because the junior lien is wholly unsecured under § 506(a), the anti-modification prohibition of § 1322(b)(2) does not apply, and the treatment provisions of § 1325(a)(5) applicable to secured claims do not apply.” In re Miller, 462 B.R. at 434.

Another court in this Circuit similarly held that “under the Second Circuit law— because, obviously, we’re all governed by the Pond case — 1325(a)(5) doesn’t kick in.... and the Pond rationale is consistent with not having it kick in.” Transcript of Confirmation Hearing and Motion To Avoid Lien at 4, In re Maria Sands, Case No. 12-23241-RDD (S.D.N.Y. Sept. 12, 2012).

Courts in other circuits have joined the growing consensus of opinion that in a Chapter 13 bankruptcy case in which the debtor is ineligible for a discharge, the rights of “[a] creditor who [does] not hold a secured claim pursuant to [Section] 506(a).... are subject to modification through the chapter 13 plan — pursuant to Section 1322(b)(2) — and [such creditors] do not qualify to be treated as secured creditors for purposes of Section 1325(a)(5).” In re Okosisi, 451 B.R. 90, 98 (Bankr. D.Nev.2011) (quotation omitted).

[541]*541And as one court observed, this conclusion is consistent with “the majority view” espoused by at least “five other Courts of Appeals and two Bankruptcy Appellate Panels” “that a claim for which there is no value in the collateral is a completely unsecured claim for valuation and Chapter 13 plan purposes.” In re Frazier, 448 B.R. 803, 810 n. 5 (Bankr.E.D.Cal.2011), aff'd, 469 B.R. 889 (E.D.Cal.2012).

Other courts have reached the opposite conclusion, finding that lien avoidance becomes permanent only upon the entry of a discharge, so that a debtor who is ineligible to receive a discharge may not avoid a wholly unsecured junior lien or treat the underlying claim as unsecured in the plan. See In re Gerardin, 447 B.R. 342, 349 (Bankr.S.D.Fla.2011) (reasoning that “a debtor’s inability to receive a discharge in a ‘Chapter 20’ case prevents a debtor from stripping wholly unsecured liens in a Chapter 13 plan as the actual strip off or lien avoidance only occurs at discharge”); In re Fenn, 428 B.R. 494, 500 (Bankr. N.D.Ill.2010) (stating that when “a debtor is not eligible for a § 1328 discharge, allowing plan modifications to be permanent, in this case — allowing a permanent strip-off of the junior mortgage lien — after the end of the plan results in a de facto discharge, a benefit to which the Debtors herein are not entitled”); In re Jarvis, 390 B.R. 600, 605-06 (Bankr.C.D.Ill.2008) (holding that “[a] no-discharge Chapter 13 case may not, however, result in a permanent modification of a creditor’s rights where such modification has traditionally only been achieved through a discharge and where such modification is not binding if a case is dismissed or converted”).

And some courts permit a debtor who is ineligible to receive a discharge to modify the rights of the creditor over the life of the plan, but reinstate the creditor’s original rights upon plan completion and the closing of the case. This third approach, like the second approach, holds that discharge is necessary in order permanently to avoid a lien. See In re Orkwis, 457 B.R. at 250 (holding that “regardless of the treatment afforded in a Chapter 13 plan, a secured creditor retains its lien until the entry of the discharge”); In re Trujillo, 2010 WL 4669095, at *2 (Bankr.M.D.Fla. Nov. 10, 2010) (holding that “[wjhere a debtor is ineligible to receive a discharge in a Chapter 13, any modifications to the creditor’s rights are not permanent and have no binding effect once the plan ends”); In re Lilly, 378 B.R. 232, 236 (Bankr.C.D.Ill.2007) (holding that “[wjhere a debtor does not receive a discharge, however, any modifications to a creditor’s rights imposed in the plan are not permanent and have no binding effect once the term of the plan ends”).

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Cite This Page — Counsel Stack

Bluebook (online)
488 B.R. 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wong-v-green-tree-servicing-llc-in-re-wong-nyeb-2013.