In re Schwalb, BK S 05 17766 LBR.

• Citation: 347 B.R. 726
• Decision Date: 03 August 2006
• Docket Number: No. BK S 05 17766 LBR.,BK S 05 17766 LBR.
• Parties: In re Michelle Renee SCHWALB, Debtor.
• Court: United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Nevada

Page 726

347 B.R. 726

In re Michelle Renee SCHWALB, Debtor.

No. BK S 05 17766 LBR.

United States Bankruptcy Court, D. Nevada.

August 3, 2006.

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Christopher Patrick Burke, Las Vegas, for Debtor: Michelle Renee Schwalb.

Lenard E. Schwartzer, Schwartzer & McPherson Law Firm, Las Vegas, for Creditor: Pioneer Loan & Jewelry.

Kathleen A. Leavitt, Las Vegas, for Trustee.

AMENDED OPINION REGARDING CONFIRMATION OF CHAPTER 13 PLAN

BRUCE A. MARKELL, Bankruptcy Judge.

                Table of Contents to Opinion
                I.  Introduction ................................................................732
                 II.  Relevant Facts ..............................................................732
                III.  Pioneer's Property Interests ..................................................734
                      A.  Pawnbrokers and the Pawning of Goods Generally ............................735
                          1.  Short History of Pawnbroking ..........................................735
                          2.  Recent History, and the Advent of "Title Pawns" .......................736
                          3.  Nevada's Regulation of Pawnbrokers and Title Pawn Transactions ........736
                              a.  State .............................................................736
                              b.  City ..............................................................737
                      B.  Application of Article 9 ..................................................737
                          1.  Does Article 9 Apply to Traditional Pawnbroking Activities? ...........738
                          2.  Pioneer's Transactions Are Not Traditional Pawn Transactions ..........739
                      C.  Applicability of Article 9 to Pioneer's Loans .............................740
                          1.  Attachment Generally...................................................741
                              a.  Authenticated Agreement ...........................................741
                              b.  Attachment Based on "Constructive Possession" of the
                                    Certificates of Title ...........................................745
                          2.  Perfection ............................................................747
                          3.  Enforcement ...........................................................747
                              a.  Unenforceable Forfeiture Clause ...................................748
                              b.  Violations of Part 6 of Nevada's Article 9 ........................749
                              c.  The Irrelevance of Non-Nevada Statutory Law .......................751
                      D.  Summary ...................................................................752
                 IV.  Pioneer's Claims in Bankruptcy ................................................752
                      A.  No Unsecured Claim ........................................................752
                      B.  Secured Claims ............................................................753
                         1.  Allowed Amount of Claim ................................................753
                         2.  Effect of Pioneer's Violation of Article 9 on Its Allowed Claim ........754
                             a.  Statutory Recovery Under NEV. REV. STAT. § 104.9625 ...........754
                             b.  Offset Against Allowed Claim .......................................756
                         3.  Determination of Secured Claim — Valuation of Collateral ...............757
                             a.  Evidence ...........................................................758
                             b.  Timing .............................................................758
                  V.  Effect of Debtor's Plan .......................................................759
                      A.  Treatment of Secured Claim ................................................759
                      B.  Feasibility ...............................................................759
                

                VI.  Conclusion ....................................................................760
                

I. INTRODUCTION

"Then the bird does not belong to any of you?" Spade asked, "but to a General Kemidov?"

"Belong?" the fat man said jovially, "Well, sir, you might say it belonged to the King of Spain, but I don't see how you can honestly grant anybody else clear title to it — except by right of possession." He clucked. "An article of that value that has passed from hand to hand by such means is clearly the property of whoever can get hold of it."¹

Possession is the central theme in this case. Pioneer Loan & Jewelry, a pawnbroker, possesses two certificates of title that list it as the owner of two motor vehicles. Michelle Schwalb, the debtor, possesses those vehicles. Pioneer claims exclusive ownership, and that Ms. Schwalb has no legal or equitable interest in the vehicles beyond mere possession. Schwalb counters that Pioneer has no interest in the vehicles because she never transferred title or granted any other interest in them to Pioneer.

Pioneer seeks possession of the vehicles, and has asked this court to force Ms. Schwalb to turn them over to it. Ms. Schwalb seeks to keep the vehicles and pay Pioneer nothing under her chapter 13 plan, the confirmation of which is the subject of this opinion.

Both parties' fallback position is that Pioneer's interest is that of a secured creditor, as it is not disputed that Pioneer originally lent money to Ms. Schwalb on the strength of the vehicles as collateral. But this presents a different problem: the documents under which Pioneer lent Ms. Schwalb money provided for an annual interest rate of approximately 120%. As a result, by the time Ms. Schwalb filed her bankruptcy, Pioneer's claim had grown to more than double the original loan. Pioneer thus believes that Ms. Schwalb has insufficient resources to pay this claim over the life of her chapter 13 plan. Ms. Schwalb responds that Pioneer's secured claim is less than Pioneer alleges. She offered evidence that she can afford plan payments at the current plan value. She also asserts, and Pioneer does not dispute, that Pioneer's failure to file a proof of claim prevents Pioneer from asserting any unsecured claim related to its loans.

All of these issues were tried to the court during a confirmation hearing on March 20, 2006. After hearing the testimony, and reviewing all the evidence and the pleadings, the court finds that Pioneer is a secured creditor, and that Ms. Schwalb can fund a chapter 13 plan given the findings regarding value (after offsets for statutory damages). The court will thus require the debtor to file an amended plan consistent with this opinion, and when it is filed, the court will confirm that plan.

II. RELEVANT FACTS

Michelle Schwalb is not a typical chapter 13 debtor. She holds no job, because she can't hold one. Seven years ago she had a brain tumor removed, leaving her unsteady and unable to concentrate for extended periods of time. Social Security disability payments are her only regular income. She is 34 years old, diabetic, has a non-working pituitary gland, and has initial symptoms of Grave's disease. She must take steroids to live. Ms. Schwalb lives with a man who fathered her only child, and they have been together as a family for thirteen or fourteen years. He works outside the home, and pays most of the household expenses.

Ms. Schwalb's chapter 13 plan is being funded entirely from her monthly disability payments, which are currently 5580, and from contributions by her father. Her father's current monthly contribution is $640. Ms. Schwalb's father testified at confirmation that he is doing so out of a desire to take care of his daughter and his grandchild. He also testified that, before his daughter filed this chapter 13 case, he regularly contributed between $600 and $800 per month towards her support.

Ms. Schwalb's father gave her the two vehicles at issue, a 1997 Infiniti QX4 Sport Utility Vehicle and a 2002 Cadillac Escalade. Before dealing with Pioneer, Ms. Schwalb had clean title to both vehicles. Then, sometime during 2004, the debtor, her father and her partner decided they needed to contribute funds to a business that Ms. Schwalb's partner ran. They went to Pioneer and obtained two loans totaling $20,000.

The business, however, failed. Ms. Schwalb had no way to repay Pioneer. At this point, Pioneer began to take action to obtain the vehicles. To understand the actions Pioneer took, however, it is necessary to review the transactions by which Ms. Schwalb obtained the $20,000.

Ms. Schwalb and her father initially approached Pioneer in June of 2004. Mr. Schwalb had done business with Pioneer and, at that time, enjoyed some goodwill with it. Ms. Schwalb's Infiniti QX4 Sport Utility Vehicle was offered as collateral, and Pioneer advanced $4,000 against possession of the certificate of title for the vehicle. The parties testified that Ms. Schwalb gave Pioneer her certificate of title after she signed it as seller. The buyer's name was left blank.

When she received the $4,000 in loan proceeds, Ms. Schwalb signed a document referred to by the parties as a pawn ticket. The pawn ticket is a preprinted form used by Pioneer in its pawnbroker business. It is a simple 5-inch-by-8-inch form, with text front and back. Among other things, the front has blanks for describing the property pawned, for the amount of the loan and for the repayment date.

On Ms. Schwalb's pawn ticket, the parties designated the property pawned as an Infiniti QX4 Sport Utility Vehicle, and included its Vehicle Identification Number (VIN). The ticket also contained the loan terms. Ms. Schwalb was to repay the $4,000 in 120 days, plus $1,605 interest. The disclosed annual interest rate was 122.04%.² If Ms. Schwalb did not "redeem" the pawn and pay the loan within the 120 days, the pawn ticket indicated that "you shall ... forfeit all right and interest in the pawned property to the pawnbroker who shall hereby acquire an absolute title to the same." Just before the blank on the pawn ticket in which the parties inserted the description of the Infiniti and its VIN, the pawn ticket indicated, in very small...