In re RADDEN

• Decision Date: 30 November 1983
• Docket Number: Adv. No. 83-0265-R,Bankruptcy No. 83-01225-R,83-0223-R.
• Citation: 35 BR 821
• Court: U.S. Bankruptcy Court — Eastern District of Virginia
• Parties: In re Darnell Lamart RADDEN, Debtor. GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff, v. Darnell Lamart RADDEN, Defendant, and Darnell Lamart RADDEN, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant.

35 B.R. 821 (1983)

In re Darnell Lamart RADDEN, Debtor.

GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff, v. Darnell Lamart RADDEN, Defendant, and Darnell Lamart RADDEN, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant.

Bankruptcy No. 83-01225-R, Adv. Nos. 83-0265-R, 83-0223-R.

United States Bankruptcy Court, E.D. Virginia, Richmond Division.

November 30, 1983.

James R. Sheeran, Richmond, Va., for debtor.

James J. Burns, Richmond, Va., for GMAC.

MEMORANDUM OPINION

BLACKWELL N. SHELLEY, Bankruptcy Judge.

These matters came before the Court upon the filing of a motion for relief from stay by General Motors Acceptance Corporation ("GMAC") and upon the filing of a complaint for turnover of property by the debtor, Darnell L. Radden. This Court heard evidence and argument on these matters simultaneously and after submission of briefs by both parties, this Court renders the following opinion.

STATEMENT OF FACTS

These matters involve the proper disposition of a 1979 Ford Mustang automobile (the "property"). The debtor, along with Priscilla Coe, purchased the property from Hechler Chevrolet, Inc. ("Hechler") on October 17, 1981. The property was titled in the debtor's name alone. Hechler financed this purchase by a retail installment sales contract secured by the vehicle. This installment sales agreement was assigned to GMAC pursuant to its agreement with Hechler entered July 3, 1980. Pursuant to the assignment, GMAC had some rights of recourse against Hechler. The relevant aspect of that agreement provides that when an uncured default occurs and GMAC delivers the collateral to Hechler within ninety days of the original default, Hechler will pay GMAC the balance of the principal and interest due on the contract. The running of the ninety day period is tolled when GMAC is precluded legally from repossession or returning the collateral to Hechler.

The debtor failed to make the contractually required payments to GMAC for the month of June, 1983. This constituted the first default under the assigned installment sales contract. The debtor did not cure the default and also failed to make the required monthly payment in July, 1983. GMAC notified the debtor and the co-buyer, Priscilla Coe, of their right to redeem the property and of a proposed sale of the property on August 12, 1983, if they did not redeem the property prior thereto.

On August 10, 1983, the debtor filed for relief under Chapter 13 of the Bankruptcy Code. In his Chapter 13 plan the debtor lists the value of the property as $2,700.00 and the balance due on the contract as $4,400.30. The Chapter 13 plan proposes to pay, through the standing Chapter 13 trustee, GMAC in full to the extent of the value of the collateral plus interest thereon at the rate of 12 percent per annum in deferred monthly cash payments of $89.68 over a period of 36 months. To the extent that the amount on the contract exceeds the value of the collateral, the obligation owing to GMAC is treated as an unsecured claim. Under the plan, unsecured claims are to receive seventy cents on the dollar.

The debtor lives about a mile and a half from his place of employment and about three blocks from a food store. He has been able to get groceries without difficulty since the time GMAC obtained possession of the property. He has gotten to and from work either by obtaining rides from friends, by using his mother's automobile, or by walking. The debtor testified that (1) he is presently working from 3:00 p.m. until 11:00 p.m. and that a friend with an automobile in the same apartment complex works the same shift; (2) that he has missed very little work in the past five years at Western Electric, except that on at least one occasion he was absent because of inability to get to work; (3) that when he must walk home he does so on a street that is busy with traffic, is not lighted, and does not have a sidewalk; (4) that he has not yet been required to walk home from work in cold weather; (5) that he seeks a turnover of the property to enable him to get to and from work; (6) that although the property is not presently insured by him for collision and liability, he would reobtain insurance on the property; (7) that he has the present finances to procure such insurance; and (8) that he has presently a valid driver's license.

CONCLUSIONS OF LAW

GMAC seeks relief from the automatic stay of 11 U.S.C. § 362(a) in order to deliver the property in its possession to Hechler thereby preserving its recourse rights under their agreement with Hechler. Pursuant to § 362(a) a creditor may obtain relief from the stay if it demonstrates cause including the lack of adequate protection of an interest in property of such creditor, or if the creditor demonstrates that the debtor does not have equity in such property and such property is not necessary to an effective reorganization. 11 U.S.C. § 362(d). GMAC here seeks relief based both on the lack of adequate protection, Id. § 362(d)(1), and on the grounds that the debtor does not have any equity in the property and that such property is not necessary for the debtor's effective reorganization. Id. § 362(d)(2).

As to the latter basis for obtaining relief from the stay, this Court needs to find only that the property is necessary for an effective reorganization to deny GMAC relief pursuant to § 362(d)(2). The debtor admits in his Chapter 13 plan and his memorandum in support of his adversary proceeding and in opposition to GMAC's adversary proceeding that he lacks equity in the property. Therefore, if the property questioned here is not necessary for the debtor's effective reorganization, the creditor is entitled to relief from stay. In re Rogers Development Corp., 2 B.R. 679 (Bkrtcy.E.D.Va. 1980); In re Pleasant Valley, Inc., 6 B.R. 13 (Bkrtcy.D.Nev.1980).

The debtor bears the burden of proving that the property is necessary for his effective reorganization. 11 U.S.C. § 362(g). This Court is satisfied that an automobile is necessary for an individual's effective reorganization in today's society. See, In re Williams, 6 B.R. 789 (Bkrtcy.E.D. Mich.1980). As the debtor testified, he needs the property to get to and from his place of employment. Moreover, individuals need transportation to obtain medical as well as other necessary services. Having found that the property is necessary for an effective reorganization, this Court will not grant GMAC relief from the stay pursuant to § 362(d)(2).

As an alternate basis for obtaining relief from the stay, GMAC alleges that it has an interest in property that is not adequately protected. Lack of adequate protection is sufficient "cause" pursuant to § 362(d)(1) for a court to grant a creditor relief from the automatic stay. The resolution of GMAC's claim in this regard turns on the issue of what is GMAC's "interest in property".

GMAC argues that the rights it has under the recourse assignment with Hechler, constitutes an interest in property for which it must be adequately protected pursuant to 11 U.S.C. § 361 and § 362(d). If the creditor's argument is accepted, the amount of GMAC's interest in property is the outstanding balance of the debtor's account, both principal and interest, because under the recourse agreement GMAC can recover the entire balance of the debtor's account. The debtor, on the other hand, argues that GMAC's interest in property that is entitled to adequate protection is only the amount of GMAC's allowed secured claim. If the debtor's contention is accepted, the amount of GMAC's interest in property is $2,700.00 because that is the value placed on the property at the time of the filing and GMAC does not contest the debtor's valuation of the property.

This Court is satisfied that GMAC's "interest in property" for purposes of 11 U.S.C. § 361 and § 362(d) is only the amount of their allowed secured claim and does not include any recourse rights they may have with third parties. The legislative history makes clear that "adequate protection of an interest of an entity in property is intended to protect a creditor's allowed secured claim". 124 Cong.Rec., House 11,092 (Sept. 28, 1978); Senate 17, 408-09 (Oct. 6, 1978). See also In re Alyucan, 12 B.R. 803, 808 n. 10 (Bkrtcy.D.Utah 1981). In discussing the topic of § 362(d) "interest in property" at length, Judge Mabey concludes that "the `interest in property' entitled to protection is not measured by the amount of the debt, but by the value of the lien". 12 B.R. at 808.

The amount of GMAC's lien herein is the value of the collateral or $2,700.00 as agreed by the parties. GMAC's lien is equivalent to the allowed amount of their secured claim. This Court knows of no authority, nor has it been shown any, that holds that a creditor's rights in a contract, to which the debtor was not a party, constitutes an aspect of that creditor's interest in particular property of the debtor. In fact, the United States Bankruptcy Court for the Northern District of Georgia rejected a similar argument where Chrysler Credit Corporation objected to confirmation because the debtor's Chapter 13 plan did not take into account Chrysler's Repurchase Agreement in valuing the collateral. In re Clements, 11 B.R. 38 (Bkrtcy.N.D.Ga.1981).

Moreover, as discussed above, GMAC's interest entitled to adequate protection is the amount of its allowed secured claim. Section 506(a) demonstrates that the bankruptcy estate must have an interest in the property for which a creditor has an allowed secured claim.¹ Therefore, the estate should have an interest in the property for which a creditor seeks adequate protection. In the instant case, the debtor, or more precisely the bankruptcy estate, does not have any interest in GMAC's recourse rights with Hechler. The debtor was not a party to the recourse agreement. GMAC's allowed secured claim cannot be based on an interest in property in which the estate has no interest and since adequate protection here is limited to the amount of GMAC's...