Wells Fargo Bank, N.A. v. Scantling (In re Scantling), 13–10558.

• Decision Date: 18 June 2014
• Docket Number: No. 13–10558.,13–10558.
• Citation: 754 F.3d 1323
• Parties: In re Tahisia L. SCANTLING, Debtor. Wells Fargo Bank, N.A., Plaintiff–Appellant, v. Tahisia L. Scantling, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

754 F.3d 1323

In re Tahisia L. SCANTLING, Debtor.Wells Fargo Bank, N.A., Plaintiff–Appellant,

v.Tahisia L. Scantling, Defendant–Appellee.

No. 13–10558.

United States Court of Appeals,Eleventh Circuit.

June 18, 2014.

Larry M. Foyle, Kass Shuler, PA, Tampa, FL, Marie Tomassi, Trenam Kemker, Saint Petersburg, FL, for Plaintiff-Appellant.

Paul Steven Singerman, Paul A. Avron, Ilyse Homer, Berger Singerman, LLP, Miami, FL, Ashley Dillman Bruce, Berger Singerman, LLP, Fort Lauderdale, FL, David L. Schrader, David L. Schrader, Esquire, Saint Petersburg, FL, Arthur J. Spector, Berger Singerman, LLP, Boca Raton, FL, for Defendant-Appellee.

Appeal from the United States Bankruptcy Court For the Middle District of Florida, Tampa Division. D.C. Docket No. 8:11–bk–00369–MGW.

Before TJOFLAT, Circuit Judge, and MOORE^* and SCHLESINGER, ^** District Judges.

SCHLESINGER, District Judge:

We have been asked to determine if a debtor can “strip off” a wholly unsecured junior mortgage in a Chapter 20 case. We conclude the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) ¹ does not prohibit this result; therefore, we affirm.

I. FACTS

On November 27, 2009, Scantling filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Less than a year later, on March 30, 2010, Scantling received her Chapter 7 discharge.

On January 1, 2011, Scantling filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code. On May 24, 2011, Scantling sought to determine the secured status of the second and third mortgages held by Wells Fargo Bank, N.A. (“the Bank”) on Scantling's principal residence (“Residence”), to determine that the Bank's second and third liens were wholly unsecured and to void those liens. The Residence was subject to three liens held by the Bank. The Bank filed claims regarding each of its liens: Claim No. 3 regarding its first lien was for $121,808.85; Claim No. 5 regarding its second lien was for $79,369.79; and Claim No. 6 regarding its third lien was for $24,416.24. According to Scantling, the Bank valued the Residence at $118,500, and for purposes of its opinion, the Bankruptcy Court accepted that valuation.

Given the undisputed fact that the value of the Scantling's Residence rendered the Bank's junior liens wholly unsecured, Scantling sought a declaration that the junior liens were void. The Bank opposed this request.

On February 24, 2012, the Bankruptcy Court entered its opinion determining that Scantling could strip off the Bank's second and third liens on the Residence because they were wholly unsecured. In a thorough and well-reasoned opinion, the Bankruptcy Court concluded:

It is well established that a chapter 20 case is permitted under the Bankruptcy Code. Equally clear is that a debtor in a chapter 13 case may strip off a wholly unsecured mortgage on the debtor's principal residence. This strip off is accomplished, first, through a determination under § 506(a) that the creditor does not hold a secured claim and, second, by modifying the creditor's “rights” under § 1322(b)(2), by avoiding the lien that the creditor would otherwise be entitled to under nonbankruptcy law. As such § 1325(a)(5) does not come into play, and the debtor's ineligibility for a discharge is irrelevant to a strip off in a chapter 20 case.

On September 28, 2012, the Bankruptcy Court entered its order, based upon the previous opinion, concluding the Bank's second and third mortgage liens would be extinguished automatically without further order upon Scantling's completion of payments contemplated by her confirmed Chapter 13 plan.

II. STANDARDS OF REVIEW

The relevant facts are undisputed; consequently, we review de novo the Bankruptcy Court's conclusions of law. DaimlerChrysler Fin. Servs. Americas LLC v. Barrett (In re Barrett), 543 F.3d 1239, 1241 (11th Cir.2008).

III. DISCUSSION

This case presents a single issue—whether a debtor can “strip off” a wholly unsecured junior mortgage in a Chapter 20 case.² To resolve this question, we must analyze the interplay between two provisions of the Bankruptcy Code 11 U.S.C. §§ 506 and 1322(b), following the enactment of the BAPCPA.

A. Statutory History

Prior to the BAPCPA, a debtor in a Chapter 13 case, filed soon after a Chapter 7 case, was eligible for a discharge, or “strip off,” of a valueless lien. Lien avoidances pre-BAPCPA in Chapter 20 cases were, therefore, treated the same as in ordinary Chapter 13 cases. In other words, pre-BAPCPA, a bankruptcy court was able to strip off a valueless lien in a typical Chapter 13 proceeding. See Tanner v. FirstPlus Fin. (In re Tanner), 217 F.3d 1357 (11th Cir.2000).

The strip off procedure was a two-step process guided by 11 U.S.C. §§ 506 and 1322(b) of the Bankruptcy Code. First, § 506(a) provided a valuation procedure for the claim.³ Depending on the value of the collateral, a claim was either secured or unsecured. If a claim were valueless and classified as unsecured under § 506(a), then the second step, under § 1322(b)(2), provided the mechanism whereby a Chapter 13 bankruptcy plan could,

modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims[.]

11 U.S.C. § 1322(b)(2). Following this two-step approach, a bankruptcy court was able to strip off a completely valueless lien against a primary residence in a Chapter 13 proceeding.

This approach was, however, not without limitations. The Supreme Court held that § 506(d) did not allow a lien to be modified based solely upon a § 506(a) valuation. Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 778, 116 L.Ed.2d 903 (1992). Instead, the Dewsnup Court held that because the creditor possessed an allowed secured claim under § 502, § 506(d) was not implicated and the lien could not be avoided. Id. The Court rejected an interpretation of § 506(d) that departed from the long-established “pre-Code rule that liens pass through bankruptcy unaffected.” Id.

Later, in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), the Supreme Court addressed the interaction between § 1322(b)(2) and § 506(a) with respect to an undersecured first lienholder. The debtor in Nobelman attempted to “strip down” a homestead lender's secured claim to the home's reduced value. Nobelman, 508 U.S. at 326, 113 S.Ct. at 2108–09. The Nobelman Court rejected the debtor's assertionsand concluded that “ § 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an undersecured homestead mortgage to the fair market value of the mortgaged residence.” 508 U.S. at 325–26, 113 S.Ct. at 2108.

This Circuit discussed the impact of Nobelman on the rights of a wholly unsecured junior mortgagee in Tanner v. FirstPlus Financial, Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000). This court determined that a wholly unsecured lien on a debtor's principal residence is not protected from modification under § 1322(b)(2). Id. at 1359–60. Rather, this court determined, “[t]he better reading of sections 506(a) and 1322(b)(2), therefore, protects only mortgages that are secured by some existing equity in the debtor's principal residence.” Id. at 1360.

Tanner distinguished Nobelman which explicitly prohibited lien strip downs where the affected lien encumbered the principal residence but was silent concerning strip offs. Id. at 1361. Therefore, Tanner explained:

the only reading of both sections 506(a) and 1322(b)(2) that renders neither a nullity is one that first requires bankruptcy courts to determine the value of the homestead lender's secured claim under section 506(a) and then to protect from modification any claim that is secured by any amount of collateral in the residence.

Id. at 1360.

It appears that Tanner and our sister circuits correctly understand Nobelman to stand for the proposition that for a claim to be “secured” and trigger the antimodification provisions of § 1322(b)(2), the collateral must have at least some value, as stated by the unambiguous language in § 506(a). See Tanner, 217 F.3d at 1357; Bartee v. Tara Colony Homeowners Assoc. (In Re Bartee ), 212 F.3d 277, 280 (5th Cir.2000); McDonald v. Master Fin., Inc. (In Re McDonald), 205 F.3d 606, 615 (3d Cir.2000).

It was in this atmosphere that Congress enacted the BAPCPA, in 2005, “ ‘to correct perceived abuses of the bankruptcy system.’ ” Branigan v. Davis, 716 F.3d 331, 333 (4th Cir.2013) ( quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 232, 130 S.Ct. 1324, 1329, 176 L.Ed.2d 79 (2010)). “An overarching goal was to ‘help ensure that debtors who can pay creditors do pay them.’ ” Id. ( quoting Ransom v. FIA Card Servs., 562 U.S. 61, 131 S.Ct. 716, 721, 178 L.Ed.2d 603 (2011)). The BAPCPA altered Chapter 13 by including,

new requirements to make payments to holders of domestic support obligations, requirements to file prepetition tax returns, changes in maximum plan length, protection for pension contributions and pension loan repayments, requirements for scheduling of the confirmation hearing, requirements for greater payments on many secured debts, new methods of calculating disposable income under section 1325(b), new requirements for preconfirmation payments, new requirements to obtain a discharge, including postpetition credit education in addition to the prepetition credit counseling briefing required for all debtors, new exceptions to the chapter 13 discharge, new limits on obtaining a chapter 13 discharge after a prior bankruptcy discharge and new provisions permitting plan modification to obtain health insurance.

Id. at 333 ( citing Collier on Bankruptcy ¶ 1300.36[10] ).

The specific language of the BAPCPA at issue here is § 1328(f), which provides:

Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided...