In re Branam
In re Branam
Opinion of the Court
MEMORANDUM OPINION AND ORDER GRANTING CREDITOR STAR ISLAND FINANCIAL, LLC’S MOTION TO DISMISS CHAPTER 13 CASE
THIS CAUSE came before the Court for hearing on Tuesday, July 24, 2012 at or about 9:00 a.m. (the “Hearing”), on the Motion [Doc. No. 9] (the “Motion ”)
I. BACKGROUND
Prior to commencing this Chapter 13 Case, the Debtor filed a petition for relief under chapter 7 of the Bankruptcy Code in this Court (the “Chapter 7 Case ”), which resulted in this Court’s granting of stay relief with respect to the Note, Mortgage and Property (each as defined below).
On March 27, 2012, litigation with respect to the Note and Mortgage ultimately
On June 22, 2012 (the “Petition Date ”), the Debtor commenced this proceeding by filing a petition for relief under chapter 13 of the Bankruptcy Code in this Court.
On June 28, 2012, Star Island Financial filed its Motion, which seeks to dismiss this proceeding for (i) lack of jurisdiction under the eligibility requirements of section 109(e) of the Bankruptcy Code and (ii) lack of good faith. Determining dismissal to be appropriate pursuant to section 109(e), the Court need not address the issue of good faith.
Prior to the Petition Date, on June 11, 2007, the Debtor made and executed a Promissory Note in the original principal of $10,000,000.00 (the “Note ”) in favor of Washington Mutual Bank, N.A. {“WAMU”).
On June 11, 2007, the Debtor made and executed a Mortgage in favor of WAMU, securing the Note (the “Mortgage ”). The Mortgage was recorded in O.R. Book 25715, Page 1589, of the Public Records of Miami-Dade County, Florida.
The Mortgage encumbers the property located at 42 Star Island Drive, Miami Beach, Florida 33139 (the “Property”), which bears the following legal description:
Lot 42, of Star Island, according to the Plat thereof, recorded in Plat Book 5, at Page 52, of the Public Records of Miami-Dade County, Florida a/k/a Lot 42, of CORRECTED PLAT OF STAR ISLAND, according to the Plat thereof, recorded in Plat Book 31, at Page 60, of the Public Records of Miami-Dade County, Florida.
On or about September 25, 2008, WAMU, formerly known as Washington Mutual Bank, FA, was closed by the Office of Thrift Supervision and the FDIC was named receiver. As authorized by Section 11(d)(2)(G)(i)(II) of the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d)(2)(G)(i)(II), the FDIC, as receiver of WAMU, was authorized to transfer any asset or liability of WAMU without any approval, assignment, or consent with respect to such transfer. Pursuant to the terms and conditions of that certain Purchase and Assumption Agreement between the FDIC as receiver of Washington Mutual and JP Morgan Chase Bank, N.A. {“Chase ”), dated September 25, 2008 (the “Purchase and Assumption Agreement ”), Chase acquired certain of the assets, including all loans and all loan commitments, of WAMU. As a result, on September 25, 2008, Chase became the owner of the loans and loan commitments of WAMU by operation of law.
Chase assigned the Note and Mortgage to Star Island Financial pursuant to that certain Allonge (the “Allonge”) and that certain Assignment of Mortgage (the “Assignment of Mortgage”), dated November 22, 2011. The Assignment of Mortgage was recorded on November 30, 2011 and recorded in O.R. Book 27910, Pages 3674-3675, of the Public Records of Miami-Dade County, Florida.
II. DISCUSSION
In its Motion, and in the arguments raised by its counsel on the record at the Hearing, Star Island Financial has argued that the Debtor’s Chapter 13 Case must be dismissed for lack of eligibility, as the more than $12,511,772.81 that is owed by the Debtor pursuant to the Final Judgment, which is secured by the Mortgage on the Property, greatly exceeds the maximum amount of secured debt permitted in a chapter 13 case under section 109(e) of the Bankruptcy Code.
Although the Debtor previously received a discharge in the Chapter 7 Case, Star Island Financial argues that the obligation owed under the Final Judgment continues to constitute a valid secured claim in this proceeding pursuant to the Supreme Court’s holding in Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (holding that “a mortgage interest that survives the discharge of a debtor’s personal liability [in chapter 7] is a ‘claim’ ” in such debtor’s subsequent chapter 13 case), as also reflected in this Court’s holding in Gerardin, which has applied the ruling in Johnson to hold that “the claim that exists after the Debtors’ [in personam ] chapter 7 discharge is a secured claim ” in a subsequent chapter 13 proceeding. In re Gerardin, 447 B.R. 342, 346 (Bankr.S.D.Fla. 2011) (emphasis added).
The Debtor has not filed a written response to the Motion. At the Hearing, however, counsel to the Debtor challenged the position adopted by Star Island Financial on the grounds that eligibility for relief under section 109(e) of the Bankruptcy Code is premised on the existence of “debts” not “claims” and that, because the Debtor no longer has in personam liability for amounts owed under the Note and Mortgage, the “claim” that arises from those obligations cannot be considered in determining whether the Debtor meets the eligibility requirements under section 109(e) of the Bankruptcy Code. The Debt- or has relied exclusively on the decision in Cavaliere v. Sapir, 208 B.R. 784 (D.Conn. 1997), as support for the proposition that a discharged mortgage debt (over which a debtor does not have any remaining in personam liability) cannot be considered in determining the amount of “debt” owed by a debtor in a subsequent chapter 13 proceeding.
As explained below, this Court disagrees with the Debtor’s overly expansive characterization of the holding in Cavaliere, as well as with the more general conclusion that the amounts owed to Star Island Financial are not “debts” under section 109(e) of the Bankruptcy Code.
Section 109(e) of the Bankruptcy Code provides that “[o]nly an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $360,475 and noncontingent, liquidated, secured debts of less than $1,081,400 ... may be a debtor under chapter 13 of this title.” 11 U.S.C. § 109(e) (emphasis added).
Section 101(12) of the Bankruptcy Code provides that the term “debt” means “liability on a claim.” 11 U.S.C. § 101(12). The Debtor adopts the position, through citation to Cavaliere, that, as a result of her discharge in the Chapter 7 Case, the Debtor has no remaining in personam liability on the claim asserted by Star Island
While the foregoing may be generally accurate outside of bankruptcy, the Debtor has failed to address the bankruptcy issue that the term “debt” includes liability on a “claim,” whether such liability is in personam or in rem. Specifically, section 101(5) of the Bankruptcy Code defines “claim” expansively as including:
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
11 U.S.C. § 101(5) (emphasis added).
While the Debtor no longer has any in personam liability with respect to the obligations under the Note and Mortgage, the lien rights on the Debtor’s Property survived the Debtor’s discharge in the Chapter 7 Case. As this Court has previously noted, in Johnson, “the Supreme Court ruled that a creditor with an obligation secured by a lien on a debtor’s property, but which creditor has no in personam claim against a debtor due to a prior bankruptcy discharge, nonetheless has a claim against a debtor in a subsequent chapter 13 case.” In re Gerardin, 447 B.R. 342, 346 (Bankr.S.D.Fla. 2011) (Judges Mark, Isieoff and Cristol) (citing Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991)). Based on the foregoing, this Court has ruled “that the claim that exists after the Debtors’ chapter 7 discharge is a secured claim.” Id. Indeed, as noted by the Court in Johnson:
Even after the debtor’s personal obligations have been extinguished, the creditor still retains a “right to payment” in the form of its right to the proceeds from the sale of the debtor’s property. Alternatively, the creditor’s surviving right to foreclose on the mortgage can be viewed as a “right to an equitable remedy” for the debtor’s default on the underlying obligation. Thus, a bankruptcy discharge extinguishes only one mode of enforcing a claim — an in personam action — while leaving intact another — an in rem action.
Johnson, 501 U.S. at 78-79, 111 S.Ct. 2150.
Here, Star Island Financial holds a Final Judgment in excess of $12 million on the Note and Mortgage, which is undoubtedly an enforceable in rem claim against the Debtor’s Property under Johnson that is also treated as a secured claim under this Court’s ruling in Gerardin. The Debtor has not cited authority to suggest that the in rem claim held by Star Island Financial cannot be considered in determining whether the Debtor is eligible for relief under section 109(e) of the Bankruptcy Code. Indeed, the only authority cited by the Debtor at the Hearing, Cava-liere, does not contradict the conclusion that an in rem claim for which a debtor has no remaining in personam liability can be considered in determining eligibility in the context of a chapter 13 filing. As discussed, the holding in Cavaliere is inap-posite and has no relevance in light of the facts before this Court.
In Cavaliere, joint debtors, John and Kathleen Cavaliere, sought relief under chapter 13 after having obtained a discharge of approximately $1.1 million in in personam mortgage debt on their primary
Thus, even if this Court adopted the Debtor’s reasoning and the holding in Ca-valiere in full, it is clear that, at a minimum, the in rem claim held by Star Island Financial — which is in excess of $12 million — will be a secured claim up to at least the value of the Debtor’s interest in the Property for purposes of section 109(e) of the Bankruptcy Code. Here, the Debtor has valued that interest at $12 million under penalty of perjury. See Debtor’s Schedules [Doc. No. 19]. Notwithstanding the foregoing, and the Debtor’s own declarations before this Court, it is clear that a valuation is unnecessary under the facts of this case.
Unlike the District Court in Cavaliere, this Court has held that, absent an independent basis for stripping down a surviving in rem claim under the Bankruptcy Code, a lien-holder’s claim against a chapter 13 debtor (whose in personam liability has been discharged) must be treated as fully secured and cannot be stripped down or modified through application of a valuation under section 506(a) and/or (d) absent a basis for doing so “in conjunction with another section of the Bankruptcy Code.” See Gerardin, 447 B.R. at 348. Here, such modification is expressly prohibited under the Supreme Court’s holding in Dewsnup, which unambiguously bars the strip down of Star Island Financial’s lien. See Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (“[T]he creditor’s lien stays with the real property until the foreclosure.”).
Consistent with the foregoing, this Court rejects the Debtor’s suggestion that the surviving in rem “claim” held by Star Island Financial is not a “debt” in this proceeding under section 109(e) of the Bankruptcy Code. As explained herein, the definition of “claim” under the Bankruptcy Code is expansive and undeniably covers obligations beyond those for which the Debtor is liable in personam, including the right to foreclose on a debtor’s real property. See Johnson, 501 U.S. at 78-79, 85, 111 S.Ct. 2150 (noting that “[a] fair reading of § 102(2) is that a creditor ... has a claim enforceable only against the debtor’s property nonetheless has a ‘claim against
Thus, it is clear that (i) the Debtor’s prior Chapter 7 Case did not discharge the in rem claim on the Note and Mortgage, (ii) the full amount of the in rem claim is a secured claim in this proceeding, (iii) the in rem claim is a “debt” of the Debtor, and (iv) the Debtor has not cited any provision of the Bankruptcy Code that would allow any portion of the in rem claim to be disallowed or discounted for purposes of section 109(e). See, e.g., In re Scotto-DiClemente, 463 B.R. at 314 n. 3 (noting disagreement with Cavaliere, and stressing that “[sjection 506(a) is not a disallowance provision” and noting that the Cavali-ere Court does not explain “how in rem claims (which by definition are claims against property), can be viewed as ‘unenforceable against the debtor or property of the debtor’ so as to be disallowed under § 502(b).”); see also In re Gerardin, 447 B.R. at 348 (prohibiting use of sections 506(a) and (d) to modify a secured claim other than in conjunction with other provisions of the Bankruptcy Code).
Based on the foregoing, the Court finds that Star Island Financial holds an in rem claim against the Property that was not subject to discharge, that is not subject to disallowance, and which constitutes a “debt” under section 109(e) of the Bankruptcy Code. Because this Court concludes that the amount of the foregoing debt exceeds $12 million and, consequently, the eligibility limitations under section 109(e) of the Bankruptcy Code, the case is subject to dismissal regardless of the ultimate value of the Property under section 506(a) of the Bankruptcy Code.
For the reasons stated, the Court concludes the Debtor is not eligible to be a debtor in this proceeding pursuant to section 109(e) of the Bankruptcy Code. Accordingly, it is
ORDERED AND ADJUDGED that the Motion is GRANTED and the case is DISMISSED.
. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.
. Specifically, on June 28, 2010, the Debtor commenced a bankruptcy proceeding pursuant to chapter 7 of the Bankruptcy Code, which was previously pending before this Court under Case No. 10-28135-AJC (the "Chapter 7 Case ”). Prior to its assignment of the Mortgage to Star Island Financial (as described below), JP Morgan Chase Bank, N.A., as the previous holder of the Mortgage, filed a Motion for Stay Relief in the Chapter 7 Case, which resulted in this Court’s Order Granting Motion for Relief from Automatic Stay in Favor of JP Morgan Chase Bank on
. The Circuit Court litigation is captioned Star Island Financial v. Branam, et al., Case No.: 10-01614 CA 09 and is pending in the 11th Judicial Circuit in and for Miami-Dade County (the “Foreclosure Case
. See In re Scotto-DiClemente, 463 B.R. 308, 312 (Bankr.D.N.J. 2012).
Reference
- Full Case Name
- In re Jeannette BRANAM, Debtor
- Cited By
- 4 cases
- Status
- Published