In re Morton, BAP No. 09-8006.

• Decision Date: 09 September 2009
• Docket Number: BAP No. 09-8006.
• Citation: 410 B.R. 556
• Parties: In re Sean Brant MORTON, Debtor. Ford Motor Credit Co. LLC, Appellant, v. Sean Brant Morton, Appellee.
• Court: U.S. Bankruptcy Appellate Panel, Sixth Circuit

410 B.R. 556

In re Sean Brant MORTON, Debtor Ford Motor Credit Co. LLC, Appellant, v. Sean Brant Morton, Appellee.

BAP No. 09-8006.

United States Bankruptcy Appellate Panel of the Sixth Circuit.

Argued: August 18, 2009.

Decided and Filed: September 9, 2009.

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ARGUED AND ON BRIEF: John A. Schuh, Sr., Schuh & Goldberg, LLP, Cincinnati, Ohio, for Appellant.

Before: BOSWELL, HARRIS, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.

OPINION

G. HARVEY BOSWELL, Bankruptcy Judge.

In this appeal, Ford Motor Credit Company, LLC ("Ford") seeks reversal of an order entered sua sponte by the bankruptcy court disapproving an attorney certified reaffirmation agreement entered into by Ford and Sean Brant Morton ("Debtor").¹

I. ISSUE ON APPEAL

The issue presented by this appeal is whether the bankruptcy court erred in sua sponte disapproving the attorney certified reaffirmation agreement between Ford and the Debtor as not in the best interest of the debtor.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the Panel and no party has elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6) and (c)(1). A final order of the bankruptcy court may be appealed as of right. 28 U.S.C. § 158(a)(1). In bankruptcy cases, an order that finally disposes of discrete disputes within a larger case may be appealed immediately. See In re Dow Corning Corp., 86 F.3d 482, 488 (6th Cir.1996). The order denying the parties' reaffirmation agreement is a final order. In addition, inclusion of the phrase "without prejudice" does not affect the order's finality. See Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845-46 (6th Cir.2007) (dismissal of complaint without prejudice is final when plaintiff intends to stand on the complaint as dismissed).

The bankruptcy court's interpretation of 11 U.S.C. § 524 is reviewed de novo. See Brock v. Branch Banking & Trust Co. (In re Johnson), 380 B.R. 455, 458 (6th Cir. BAP 2007) (interpretation of Bankruptcy Code reviewed de novo). "Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court's determination." Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). The bankruptcy court's application of 11 U.S.C. § 524 to the particular facts of this case poses a mixed question of law and fact. We therefore "break" the appeal "down into its constituent parts and apply the appropriate standard of review for each part." WesBanco Bank Barnesville v. Rafoth (In re Baker & Getty Fin. Servs., Inc.), 106 F.3d 1255, 1259 (6th Cir.1997).

The court's conclusions of law are reviewed de novo. General Elec. Credit Equities, Inc. v. Brice Rd. Develops., LLC (In re Brice Rd. Develops., LLC), 392 B.R. 274 (6th Cir. BAP 2008). The court's findings of fact are reviewed under the clearly erroneous standard. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.2007). "A finding of fact is clearly erroneous `when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

III. FACTS

On December 5, 2008, the Debtor, represented by counsel, filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. Also on December 5, 2008, pursuant to 11 U.S.C. § 521(a)(2)(A), the Debtor filed a Statement of Intention with respect to debts secured by property of the estate, and indicated his intention to reaffirm his debt to Ford and retain the collateral for that debt, a 2006 Ford F-150. On January 5, 2009, Ford filed a proof of claim setting forth the value of the Ford F-150 at $31,157.44. With the assistance of counsel, the Debtor then entered into an attorney certified reaffirmation agreement with Ford. The agreement was filed with the bankruptcy court on January 12, 2009.

The reaffirmation agreement stated that pursuant to the Retail Installment Contract dated November 7, 2006, the original purchase price for the 2006 Ford F-150 was $42,931.84, and that the Debtor sought to reaffirm $30,513.88 with interest at 1.9%. The agreement contained all required parts of a reaffirmation agreement and was, therefore, in compliance with 11 U.S.C. § 524(k). The repayment schedule set forth in the agreement was 47 payments of $673.79.

Part D Statement in Support of Reaffirmation Agreement provides, "I can afford to make the payments on the reaffirmed debt because my monthly income (take home pay plus any other income received) is $3,626.63, and my actual current monthly expenses including monthly payments on post-bankruptcy debt and other reaffirmation agreements total $2,906.89, leaving $719.74 to make the required payment on this reaffirmed debt." (App. at 10.) The income and expense information provided on Schedules I and J, which were attached to the agreement, matches the information provided on part D of the agreement.

Part C of the agreement bears the signature of Debtor's counsel certifying that "(1) this agreement represents a fully informed and voluntary agreement by the debtor; (2) this agreement does not impose an undue hardship on the debtor or any dependent of the debtor; and (3) [he has] fully advised the debtor of the legal effect and consequences of this agreement and any default under this agreement." (App. at 11.)

On January 21, 2009, the bankruptcy court, sua sponte, without notice or a hearing, entered an order denying approval of the agreement which stated, in pertinent part:

The Court is obliged by statute to determine whether a Reaffirmation is in the best interest of the Debtor.

In this case the Court has consulted the NADA Official Used Car Guide. That guide shows several models of the 2006 Ford F 150. The NADA book shows no present value for this vehicle in excess of approximately half the amount proposed to be reaffirmed.

Under these circumstances the Court cannot approve the Reaffirmation Agreement, and approval is denied, without prejudice.

(App. at 1-2.)

Ford timely appealed the bankruptcy court's order.

On March 31, 2009, the bankruptcy court entered a discharge order.

IV. DISCUSSION

Before we address the merits of the appeal before us, we must address the issue of whether Ford in fact has standing to bring this appeal. See Harker v. Troutman (In re Troutman Enters., Inc.), 286 F.3d 359, 364 (6th Cir.2002) ("Standing is a jurisdictional requirement and we are under a continuing obligation to verify our jurisdiction over a particular case.") Appellate standing in bankruptcy cases is more limited than Article III standing or the prudential requirements associated with federal standing generally. Moran v. LTV Steel Co., Inc. (In re LTV Steel Co., Inc.), 560 F.3d 449, 452-53 (6th Cir.2009). As this Panel has previously explained:

In order to have standing to appeal a bankruptcy court order, an appellant must have been "directly and adversely affected pecuniarily by the order." Derived from the now-repealed Bankruptcy Act of 1898, "[t]his principle, also known as the `person aggrieved' doctrine, limits standing to persons with a financial stake in the bankruptcy court's order." Thus, a party may only appeal a bankruptcy court order when it diminishes their property, increases their burdens or impairs their rights.

Travelers Cas. & Sur. v. Corbin (In re First Cincinnati, Inc.), 286 B.R. 49, 51 (6th Cir. BAP 2002) (citations omitted.)

While neither this Panel nor the Sixth Circuit Court of Appeals has previously addressed the standing of a creditor to appeal a bankruptcy court's disapproval of a reaffirmation agreement, the Sixth Circuit has recognized that creditors generally have appellate standing with respect to orders directly affecting the assets from which they seek to be paid. See Hyundai Translead, Inc. v. Jackson Truck & Trailer Repair, Inc. (In re Trailer Source, Inc.), 555 F.3d 231, 250 (6th Cir.2009). Additionally, because Ford's rights were detrimentally affected when the bankruptcy court issued its order disapproving the reaffirmation agreement, Ford has standing to bring this appeal. See McClellan Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668, 670-71 (9th Cir.1998) (concluding creditor has standing to appeal order voiding reaffirmation agreement); BankBoston, N.A. v. Claflin (In re Claflin), 249 B.R. 840 (1st Cir. BAP 2000) (finding creditor had standing to appeal denial of approval of reaffirmation agreement); BankBoston, N.A. v. Nanton, 239 B.R. 419, 421 (D.Mass.1999) (concluding creditor had standing to appeal order declaring reaffirmation agreement unenforceable). Having concluded that Ford does indeed have standing to bring this appeal, and that we therefore have jurisdiction to hear the appeal, we turn now to the merits.

Pursuant to 11 U.S.C. § 524, after filing a bankruptcy petition, a debtor may enter into a contract with a creditor in which he agrees to pay an otherwise dischargeable debt. 11 U.S.C. § 524. To be binding, such an agreement reaffirming a debt must comply with the requirements set forth in 11 U.S.C. § 524(c). When a debtor is represented by counsel, as the Debtor was here, a reaffirmation agreement between the debtor and a creditor is enforceable, to the extent enforceable under applicable nonbankruptcy law, only if: (1) the agreement is made prior to the entry of the debtor's discharge, (2) the debtor receives certain disclosures set forth in § 524(k), (3) the agreement is filed with the bankruptcy court and the debtor's counsel signs an accompanying affidavit or declaration attesting that (a) the agreement represents a fully informed and voluntary agreement by...