In re Cordes
Decision Date | 13 March 1984 |
Docket Number | Ref. No. M3-164,Bankruptcy No. SA 83-01110 PE,Adv. No. SA 83-2599. |
Citation | 37 BR 582 |
Parties | In re Friedhelm CORDES, Marlene Cordes, Debtors. GEICO FINANCIAL SERVICES, INC., Plaintiff, v. Friedhelm CORDES, Marlene Cordes, John Kroh, Trustee, Defendants. Friedhelm CORDES, and Marlene Cordes, Plaintiffs, v. GEICO FINANCIAL SERVICES, INC., et al., Defendants. PRECISION MORTGAGE SERVICE, INC. and Precision Mortgage Corporation, a California corporation, Counter-claimants, v. Friedhelm CORDES and Marlene Cordes, Counter-defendants. |
Court | U.S. Bankruptcy Court — Central District of California |
Pagter Law Corporation, Santa Ana, Cal., for Cordes.
A.C. Foell, Garden Grove, Cal., for Geico Financial Services, Inc.
Blake, Niermann & Barnett, Santa Ana, Cal., for Precision Mortgage Services.
The Chapter 7 debtors seek to amend the judgment entered December 16, 1983 and the findings of fact and conclusions of law contained in my memorandum of decision, particularly as to the secured status of Government Employees Insurance Co. (Geico) under 11 U.S.C. § 506.
The issue is whether the court can avoid a lien on the Chapter 7 debtors' residence to the extent that the obligation exceeds the amount of the creditor's secured claim. I hold that the lien cannot be avoided.
Geico filed a secured claim for $100,000. in the Cordeses' bankruptcy case on April 1, 1983. In the findings of fact filed November 17, 1983, I made the following findings:
Under this section, if applicable, Geico would hold a secured claim for $84,000. and an unsecured claim for $24,000. Section 506(d)(1) provides:
Because Geico has filed a secured claim and the debtors have, in effect requested that I determine and allow Geico's claim as part secured and part unsecured, 11 U.S.C. § 506(d)(1) is complied with. That distinguishes this proceeding from In re Hotel Associates Inc., (Bkrtcy.E.D.Pa.1980) 3 B.R. 340, 6 B.C.D. 145 ( ) and In re Spadel, (Bkrtcy.W.D. Pa.1982) 28 B.R. 537, 10 B.C.D. 506 ( ).
Section 506 does not operate in a vacuum. It must be read together with other parts of the Code. For example, § 363(b) authorizes the trustee to sell property of the estate and subsection (k) of § 363 provides:
At a sale under subsection (b) of this section of property that is subject to a lien that secures an allowed claim, if the holder of such claim purchases such property, such holder may offset such claim against the purchase price of such property.
The legislative history shows:
Subsection (e) now (k) also provides that where a sale of the property is proposed, an entity that has an interest in such property may bid at the sale thereof and set off against the purchase price up to the amount of such entity\'s claim. No prior valuation under section 506(a) would limit this bidding right, since the bid at the sale would be determinative of value.
Senate Report 95-989, 95th Cong.2d, Sess. 55, U.S.Code Cong. & Admin.News 1978, p. 5787, (1978).
The language in § 363(k) refers to a lien secured by an allowed claim, not a lien secured by an allowed secured claim (Cf. § 722—redemption for payment of allowed secured claim).
Section 506 would not afford the debtors the relief they...
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