In re Pluta

• Decision Date: 30 September 1996
• Docket Number: Bankruptcy No. 96-41357-HJB.
• Parties: In re Anthony J. PLUTA, Debtor.
• Court: United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts

200 B.R. 740 (1996)

In re Anthony J. PLUTA, Debtor.

Bankruptcy No. 96-41357-HJB.

United States Bankruptcy Court, D. Massachusetts.

September 30, 1996.

Francis Lafayette, for Debtor.

David M. Banash, Boston, MA, for Chrysler.

Denise Pappalardo, Chapter 13 Trustee.

MEMORANDUM OF DECISION

HENRY J. BOROFF, Bankruptcy Judge.

I. Introduction

Before the Court is a "Motion To Require Lienholder To Return Collateral (Motor Vehicle)" (the "Turnover Motion")¹ filed by Anthony J. Pluta (the "Debtor") and a "Motion For Relief From Automatic Stay of Chrysler Financial Corporation" (the "§ 362 Motion") ("Chrysler"). The issues for determination are (1) whether a certain 1995 Jeep Cherokee (the "Collateral" or the "Jeep") repossessed by Chrysler shortly before the commencement of the case constitutes property of the Debtor's estate and, if so, (2) whether Chrysler is entitled to relief from the automatic stay under 11 U.S.C. § 362(d) so that Chrysler might sell the Collateral.

II. Facts

The material facts in this case are not disputed. On or about October 31, 1995, the Debtor entered into a retail installment contract (the "Contract") with Cahillane Motors, Inc. for the purchase of the Jeep. Cahillane then assigned its interest in the Contract to Chrysler. The Contract requires the Debtor to make monthly payments in the sum of $389.79 through November 2000. Chrysler alleges and the Debtor does not deny that, as of February 5, 1996, the Debtor had made none of the required payments to Chrysler. On March 5, 1996, after giving notice to the Debtor of his payment defaults and his right to cure, Chrysler repossessed the Jeep. Thereafter, Chrysler notified the Debtor of his right to redeem the Jeep prior to March 26, 1996.

On March 19, 1996 (the "Petition Date"), prior to the expiration of the redemption period mandated by Massachusetts law, the Debtor filed a petition in this Court under Chapter 13 of the Bankruptcy Code. On April 12, 1996, the Debtor filed the Turnover Motion seeking return of the Jeep. On April 24, 1996, Chrysler filed an opposition to the Turnover Motion together with its § 362 Motion seeking leave to sell its Collateral. On May 8, 1996, the Court held a hearing on both the Turnover and § 362 Motions. At the conclusion of the hearing, the Court afforded the parties an additional period of time in which to file briefs and took the motions under advisement.²

III. The Parties' Positions

In its Turnover Motion, the Debtor argues that the Jeep is property of the estate since, as of the Petition Date, title to the vehicle remained in his name and his ownership rights had not been severed. The Debtor further alleges that, on the Petition Date, the pay-off balance under the Contract was $18,300.00 and the fair market value of the Jeep was $18,500.00. The Debtor also maintains that the Jeep is currently insured, that it is necessary to an effective reorganization, and that he has the means to provide Chrysler with adequate protection of its allowed secured claim in his Chapter 13 Plan of Reorganization (the "Plan").

In its opposition to the Turnover Motion, Chrysler alleges that, prior to March 26, 1996, the pay-off balance on the Contract was $18,770.89, and, on the Petition Date, the Jeep had a wholesale fair market value of $16,950.00. However, Chrysler contends that because it repossessed the Jeep prior to the Petition Date, the Debtor's only interest in the Jeep on the Petition Date was his statutory right of redemption. Chrysler argues further that the right of redemption was extended under § 108(b)³ of the Code for only an additional 60 days from the Petition Date (May 17, 1996), and the right of redemption has now expired. Furthermore, Chrysler contends that, even during the redemption period, cure was never an available option for the Debtor. Rather, the Debtor's right to cure was determined under the Contract and, pursuant to Mass.Gen.L. ch. 255B, § 20A(d) and (e). Those rights do not include the right to cure after a secured creditor repossesses its collateral.

In its § 362 Motion, Chrysler adds that the Jeep is depreciating in value, that the Jeep is not necessary for an effective reorganization and that no reorganization is in prospect.

IV. Discussion

A. The Turnover Motion

Mass.Gen.L. ch. 255B, § 20B(c) provides as follows:

(c) The buyer under a secured consumer credit transaction may redeem the collateral from the holder at any time within twenty days of the creditor\'s taking possession of the collateral, or thereafter until the creditor has either disposed of the collateral, entered into a contract for its disposition, or gained the right to retain the collateral in satisfaction of the buyer\'s obligation.

As of the Petition Date, Chrysler had not disposed of the Collateral, entered into a contract for its disposition, or gained the right to retain the Collateral in satisfaction of the Debtor's obligation.⁴ Furthermore, the period from the repossession of the Jeep to the Petition Date was less than 20 days. Therefore, as of the Petition Date, the Debtor retained the right to redeem his Jeep. More importantly, as of the Petition Date, the Debtor remained title holder and owner of the Jeep. Thus, the Jeep constitutes property of the estate under § 541 of the Code.⁵

Chrysler argues that because the Debtor lost the right to possession of the Jeep under state law and was left only with the right to redeem, that redemption right, and not the vehicle itself, was property of the estate. But Chrysler's position does not square with the Supreme Court's holding in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). In the Whiting Pools case, the court noted that several provisions of the Code "bring into the estate property in which the debtor did not have a possessory interest at the time the bankruptcy proceedings commenced." Id. at 205, 103 S.Ct. at 2313-14. The Supreme Court found that:

Section 542(a) is such a provision. It requires an entity (other than a custodian) holding any property of the debtor that the trustee can use under § 363 to turn that property over to the trustee. Given the broad scope of the reorganization estate, property of the debtor repossessed by a secured creditor falls within this rule, and therefore may be drawn into the estate. While there are explicit limitations on the reach of § 542(a), none requires that the debtor hold a possessory interest in the property at the commencement of the reorganization proceedings.

Id. at 205-06, 103 S.Ct. at 2314 (footnotes omitted and emphasis supplied). The Supreme Court further found that, "in effect, § 542(a) grants to the estate a possessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings. The Bankruptcy Code provides secured creditors various rights, including the right to adequate protection, and these rights replace the protection afforded by possession." Id. at 207, 103 S.Ct. at 2314-15 (footnotes omitted).

Chrysler urges that this Court give a restrictive reading to Whiting Pools and find that under Massachusetts law the Debtor's only property interest in the repossessed Jeep is his right to redeem it. This Court finds that such a reading of Whiting Pools would be unduly restrictive and unsupported by recent case law. In support of its position, Chrysler cites the following inapposite cases: In re Gull Air, Inc., 890 F.2d 1255 (1st Cir.1989) (concerning debtor's license to use airport slots); Good Hope Refineries, Inc. v. Benavides, 602 F.2d 998 (1st Cir.1979) (concerning debtor's rights under an agreement similar to option contract); In re Players' Pub, 45 B.R. 387 (Bankr.D.Mass.1985) (concerning debtor's rights under a real property lease); In re Anne Cara Oil Co., Inc., 32 B.R. 643 (Bankr.D.Mass.1983) (concerning debtor's rights under a franchise agreement). These cases are distinguishable from the instant case since in none did the Debtor own more than a contract right. In the instant case, the Debtor owns the res. Even after Chrysler repossessed the Collateral, title to the Jeep was in the Debtor's name and, under Mass.Gen.L. ch. 255B, § 20B(c), would so remain until it was sold, under contract for sale, or until Chrysler obtained the right to retain the collateral in satisfaction of the Debtor's obligation.

In support of its argument, Chrysler also cites In re Morgan, 23 B.R. 700 (Bankr. E.D.Pa.1982), which case is on point. In Morgan, the Court found that under Pennsylvania state law the Debtor's rights in a repossessed automobile were limited only to the right to redeem. The Morgan decision, however, predates Whiting Pools.

Since Whiting Pools, several bankruptcy courts have considered debtors' rights in repossessed collateral. Under substantially similar facts and applicable repossession and redemption statutes to the case at bar, the court in the case of In re Teri Lynn Karr, 129 B.R. 498 (Bankr.S.D.Ohio 1991) found that "where the collateral is not sold prepetition, the debtor has an interest constituting property of the estate and, under the rationale of United States v. Whiting Pools, Inc., . . . citation omitted, turnover may be ordered pursuant to 11 U.S.C. § 542." In the case of In re Bruce Allen Bingham, 116 B.R. 541, 543 (Bankr.N.D.Ohio 1990), after finding that "the mere act of repossession" was insufficient to transfer ownership of a repossessed vehicle under Ohio law and that the debtor maintained an equity of redemption, the court ordered the creditor to turnover the property. Accord In re Young, 193 B.R. 620, 621 (Bankr.D.D.C.1996) (finding that "the mere seizure of the vehicle did not suffice to destroy the debtor's title as long as the debtor had a right to redeem"); In re Wallace, 102 B.R. 114 (Bankr.S.D.Ohio 1989). This Court agrees and finds that the Jeep is property of the estate and subject to turnover.

Finally, Chrysler argues that, even if redemption rights...