Witt, In re, 96-1683

• Decision Date: 21 May 1997
• Docket Number: No. 96-1683,96-1683
• Parties: , 37 Collier Bankr.Cas.2d 1703, 30 Bankr.Ct.Dec. 1115, Bankr. L. Rep. P 77,387 In re Clarence Gordon WITT; Carolyn Sue Witt, Debtors. Clarence Gordon WITT; Carolyn Sue Witt, Plaintiffs-Appellants, v. UNITED COMPANIES LENDING CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 508

113 F.3d 508

65 USLW 2761, 37 Collier Bankr.Cas.2d 1703,

30 Bankr.Ct.Dec. 1115, Bankr. L. Rep. P 77,387

In re Clarence Gordon WITT; Carolyn Sue Witt, Debtors.

Clarence Gordon WITT; Carolyn Sue Witt, Plaintiffs-Appellants, v. UNITED COMPANIES LENDING CORPORATION, Defendant-Appellee.

No. 96-1683.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 2, 1996.

Decided May 21, 1997.

ARGUED: Robert Mitchell Garbee, Wilson, Garbee & Rosenberger, Lynchburg, VA, for Appellants. Paul Joseph Feinman, Fralin, Feinman, Coates & Kinnier, P.C., Lynchburg, VA, for Appellee.

Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined.

OPINION

MICHAEL, Circuit Judge:

Here we must decide whether 11 U.S.C. § 1322(c)(2), enacted as part of the Bankruptcy Reform Act of 1994, allows Chapter 13 debtors to bifurcate undersecured home mortgage loans into separate secured and unsecured claims. Before § 1322(c)(2) was enacted, the Supreme Court in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), held that another provision, § 1322(b)(2), prohibited a Chapter 13 debtor from bifurcating home mortgage debt. In their proposed Chapter 13 plan in this case, debtors Clarence Gordon Witt and Carolyn Sue Witt bifurcated their home mortgage debt owed to United Companies Lending Corporation (United). When United objected to confirmation of the plan, the Witts argued that § 1322(c)(2) should be interpreted to overrule Nobelman and permit bifurcation. The bankruptcy court agreed with the Witts and overruled United's objection, but the district court reversed. We agree with the district court that § 1322(c)(2) does not allow bifurcation.

I.

On April 13, 1995, the Witts filed their petition for relief under Chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 1301 et seq. Their principal debt was $22,561.02 due to United on a note executed September 15, 1989, which matures in 1999. The note was secured by a first deed of trust on the Witts' only residence, a mobile home and lot located in Appomattox County, Virginia. According to the Witts, the current fair market value of their home is $13,100. In their proposed Chapter 13 plan the Witts bifurcated the obligation to United into two claims, one secured and one unsecured. The $13,100 secured claim (representing the value of United's interest in the home) would be paid out in full over five years, beginning July 1, 1995. Interest at ten per cent per annum would be paid on the secured claim. The rest ($9,461.02) of the obligation to United would be unsecured. In their plan the Witts propose to pay only 30 percent of each allowed unsecured claim.

United objected to the Witts' plan, claiming that the bifurcation of its claim modified its rights under the secured note in violation of 11 U.S.C. § 1322(b)(2). The bankruptcy court, however, overruled United's objection by deciding that 11 U.S.C. § 1322(c)(2) created an exception to § 1322(b)(2)'s prohibition against bifurcation of home mortgage debt. On appeal the district court reversed and remanded. United Companies Lending Corp. v. Witt, 199 B.R. 890, 895 (W.D.Va.1996). Concluding that § 1322(c)(2) did not permit bifurcation, the district court reversed the bankruptcy court's determination to the contrary and also remanded the case for a hearing on whether the extension of the plan beyond three years was justified under 11 U.S.C. § 1322(d). The Witts appeal only the district court's reversal on the bifurcation issue.

II.

The Witts' Chapter 13 plan bifurcates United's claim into secured and unsecured components even though the underlying note was entirely secured by a first deed of trust on the Witts' home. Bifurcation is generally permitted under 11 U.S.C. § 506(a), which states:

An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor's interest ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim.

However, in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), the Supreme Court held that § 506(a) did not apply to claims that were secured only by an interest in the debtor's principal residence. To reach this result, the Court looked to 11 U.S.C. § 1322(b)(2), which provides that a Chapter 13 plan may "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." The Court held that "to give effect to § 506(a)'s valuation and bifurcation of secured claims through a Chapter 13 plan ... would require a modification of the rights of the holder of the security interest." Id. at 332, 113 S.Ct. at 2111. According to the Court, "[s]ection 1322(b)(2) prohibits such a modification where, as here, the lender's claim is secured only by a lien on the debtor's principal residence." Id.

The Witts readily admit that their plan's proposed bifurcation is similar in all relevant respects to the one proposed in Nobelman and would therefore be barred under Nobelman if that decision still controls. However, subsequent to Nobelman Congress passed the Bankruptcy Reform Act of 1994. Section 301 of the Act amended 11 U.S.C. § 1322 to add subsection (c), which states in relevant part:

Notwithstanding subsection (b)(2) and applicable nonbankruptcy law--...

(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor's principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.

11 U.S.C. § 1322(c)(2). Both sides agree that the Witts' plan meets the condition that "the last payment on the original payment schedule" be due "before the date on which the final payment under the plan is due." ¹ Since the Witts' plan meets this condition, their plan "may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title."

The parties differ, however, over whether the phrase "as modified pursuant to section 1325(a)(5)" should be read as applying to "claim" or "payment." The Witts argue that the phrase should be interpreted to apply to "claim." This interpretation would allow the Witts to "modif[y]" United's "claim" pursuant to § 1325(a)(5), which (the Witts say) permits bifurcation. ² United contends, however, that the phrase "as modified pursuant to § 1325(a)(5)" should be read as applying to "payment" rather than "claim." This interpretation would only permit the Witts to "modif[y]" the amount or scheduling of the individual payments on the claim; the amount of the underlying claim itself could not be modified. ³ The district court agreed with United. See Witt, 199 B.R. at 893 ("Section 1322(c)(2) says that payment of the claim may be modified pursuant to § 1325(a)(5), not that the entire claim could be modified according to § 506(a) as the Witts suggest."). We review the district court's interpretation of the statute de novo. United States v. Childress, 104 F.3d 47, 50 (4th Cir.1996).

In interpreting § 1322(c)(2), we begin by examining the text of the statute. As we recognized in United States v. Sheek, 990 F.2d 150, 152-53 (4th Cir.1993), "[s]tatutory construction must begin with the language of the statute and the court should not look beyond that language unless there is ambiguity or unless the statute as literally read would contravene the unambiguously expressed legislative intent gleaned from the statute's legislative history." Unfortunately, we find the language of § 1322(c)(2)--"payment of the claim as modified"--to be ambiguous. It cannot be determined, merely from the statute's text, whether the words "as modified" should apply to "payment" or to "claim."

We recognize that under the "rule of the last antecedent," a phrase should be read to modify its immediate antecedent. See Nobelman, 508 U.S. at 330, 113 S.Ct. at 2111. According to this rule, the phrase "as modified" would apply to its immediate antecedent, "claim." However, although this reading may be "quite sensible as a matter of grammar," we find, as did the Nobelman Court (in interpreting another section, § 1322(b)(2)), that such a reading "is not compelled." Id. In the section we must interpret, § 1322(c)(2), the term "claim" is part of the phrase "of the claim," which modifies "payment." It is quite plausible as a matter of common sense, we believe, that the phrase "as modified" also modifies "payment" and not "claim." After all, the subject of payment is the focus of § 1322(c)(2); it only deals with plan payment provisions when "the last payment on the original payment schedule" on a home mortgage loan "is due before the date on which the final payment under the plan is due."

Moreover, in the final clause of § 1322(c)(2) ("the plan may provide for the payment of the claim as modified") the word "payment" becomes superfluous if the Witts' interpretation is adopted. According to their interpretation, "as modified" can only be read as applying to "claim," and "payment" is left unmodified. If Congress had intended this reading, however, there was no need for it to talk about the "payment" of the claim. Instead, it could have simply ended § 1322(c)(2) by saying "the plan may provide for the claim to be modified." But Congress said something else in the last clause of § 1322(c)(2), that is, "the plan may provide for the payment of the claim as modified." Under the Witts' interpretation, this reference to "payment" becomes wholly unnecessary and superfluous. As the Supreme Court counseled in Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117...