In re Williams
In re Williams
Opinion of the Court
MEMORANDUM OPINION AND JUDGMENT DENYING DEBTOR’S MOTION FOR POST-CONFIRMATION AMENDMENT OF PLAN
In this contested matter, Wells Fargo
STIPULATED FACTS.
The parties have stipulated to the following facts.
On January 24, 2014, Debtor filed a voluntary bankruptcy petition under Chapter 13. The Property was valued at
$190,520 on Schedule A. For taxation purposes, Douglas County currently estimates the value to be $191,200. At the time the petition was filed, Wells Fargo was owed $169,841.61, and the Property was subject to a junior lien held by another entity in the amount of $48,051.82.
Debtor filed a Chapter 13 plan with his petition that provided for him to retain the Property as his principal residence. On March 21, 2014, the Court confirmed the proposed plan without objection from Wells Fargo. On June 1, 2014, Debtor filed a Motion for Post-Confirmation Amendment of the Plan in which he proposed to surrender the Property. There was no objection, and on August 21, 2014, the Court granted the motion. Debtor has abandoned the Property and can no longer claim it as his homestead. One or more agents of Wells Fargo have entered into the Property, changed the back-door lock, winterized the home, and generally maintained the Property.
On February 5, 2015, Debtor filed the Motion to Amend the Plan Post-Confirmation which is the subject of the present dispute.
*517 [The Property] is surrendered in full satisfaction of the underlying secured claim of Wells Fargo Home Mortgage and/or Wells Fargo Bank, N.A. Pursuant [to] 11 U.S.C. §§ 1322(b)(8) and (9), title to the [Property] ... shall vest in Wells Fargo Home Mortgage and/or Wells Fargo [B]ank, N.A. upon confirmation of this amendment to the ... Plan, and the Order approving this modification shall constitute a deed of conveyance to the Property when recorded with the Douglas County, Kansas Register of Deeds. All secured claims secured by the [Property] will be paid by surrender of the collateral and foreclosure of the security interests.9
Wells Fargo filed a timely objection to the proposed vesting of the Property. The parties have fully briefed the question whether the proposed amended plan may be confirmed.
DISCUSSION.
Wells Fargo is the holder of an allowed claim secured by the Property. The proposed amendment to the plan (Proposed Amendment) provides for the surrender and the vesting of the Property in Wells Fargo. Wells Fargo objects, contending that neither § 1322(b)(9)
The permissible contents of a Chapter 13 plan are enumerated in § 1322. Subsection (b) specifies various discretionary plan terms, and includes § 1322(b)(9), which provides that a plan may “provide for the vesting of property of the estate, on confirmation of the plan or at a later time, in the debtor or in any other entity.” Debtor’s Proposed Amendment is based upon this subsection; it proposes to vest the Property in Wells Fargo at the time of confirmation of the amended plan. The Court finds that the content of the Proposed Amendment does not violate § 1322. The question is whether the Proposed Amendment may be confirmed over the objection of Wells Fargo.
The criteria for confirmation of a Chapter 13 plan are stated in § 1325. With respect to each allowed secured claim, subsection (a)(5) provides that the plan may be confirmed only if (A) the holder of the claim has accepted the plan, (B) payments under the plan satisfy the cram down standard,
Both Debtor
Despite the acknowledged difference in the meaning of “surrender” and “vesting,” a number of bankruptcy courts have confirmed Chapter 13 plans providing for the surrender and vesting of collateral in the mortgage holder. Several of these opinions address confirmation when the secured creditor did not object to the plan. In Locascio,
Zair,
Bankruptcy Judge Berger of this District has also confirmed a plan providing for the surrender and vesting of property in a mortgage holder over the creditor’s objection. In Rosen,
But other courts have held that a secured creditor cannot be compelled to accept ownership of collateral. The United States District Court for the District of Oregon in Watt reversed a bankruptcy court conclusion that nothing prohibits allowing debtors to both surrender mortgaged property and vest it in the objecting secured creditor.
Essentially, the bankruptcy court interpreted 11 U.S.C. § 1322(b)(9) as creating a “fourth option” under 11 U.S.C. § 1325(a)(5). This holding, however, is at odds with the plain language of 11 U.S.C. § 1325(a)(5) and established precedent. As BNYM denotes, “section 1322(b) does not state that a plan that includes any of these provisions is per se confirmable [and this is because] [confirmation is governed by section 1325, not section 1322.” ... In other words, that “section 1322(b) permits inclusion [of a nonstandard provision that vests property in a secured creditor does not resolve] whether the plan can be confirmed with the nonstandard provision.”33
The district court further noted that the third option for confirmation under § 1325(a)(5) unambiguously states that a plan is confirmable where surrender is proposed. The plan confirmed by the bankruptcy court did not merely propose surrender, it also forcibly transferred the debtors’ interest and attendant liabilities to the creditor. The district court found that this “interpretation impermissibly transforms the secured creditor’s right into an obligation, thereby rewriting both the Bankruptcy Code and the underlying loan documents, while at the same time belying the secured creditor’s state-created property rights.”
Rose
This. Court agrees that although § 1322(b)(9) allows vesting the title to property in a secured creditor, § 1325(b)(5) does not permit confirmation of a plan vesting title to collateral in the secured creditor over that creditor’s objection. The plain meaning of the statutes compels this result. Section 1325(a)(5)(C) permits confirmation without the secured creditor’s consent when the plan provides for surrender of the collateral to the creditor. Surrender and vesting are not equivalent: “Surrender means making the property available to be taken; vesting means transferring title.”
Vesting the Property in Wells Fargo would impair Wells Fargo’s rights under state law. In this Court’s opinion, the Code fails to provide a basis for a bankruptcy court to do so. Generally under state law, a mortgagee is not required to accept title to its collateral, but has a right to obtain the title through foreclosure, if it elects to do so. Vesting the title over Wells Fargo’s objection would force it to accept the title and impose unbargained-for obligations on it to pay taxes and other costs associated with the Property.
The state law interests of a secured creditor may be altered over the creditor’s objection when a Chapter 13 plan complies with the cramdown provisions of § 1325(a)(5)(B), which protect the creditor
CONCLUSION.
For the foregoing reasons, the Court-denies Debtor’s motion for post-confirmation amendment of his Chapter 13 plan to provide for surrender and vesting of his former residence in the secured creditor holding the first-priority lien on the property. The secured creditor objected to the proposed treatment of its claim, and such a plan cannot be confirmed over the creditor’s objection.
The foregoing constitutes Findings of Fact and Conclusions of Law under Rules 7052 and 9014(c) of the Federal Rules of Bankruptcy Procedure, which make Rule 52(a) of the Federal Rules of Civil Procedure applicable”to this matter.
JUDGMENT.
Judgment is hereby entered denying Debtor’s motion for post-confirmation amendment of his Chapter 13 plan to provide for vesting of his former homestead in the holder of a first mortgage lien on the Property.
IT IS SO ORDERED.
. Wells Fargo Bank, N.A., appears by H. Joseph Esry and Jonathon Burford of Kozeny & McCubbin, L.C.
. Debtor appears by Jonathan C. Becker.
. Doc.59.
. This Court has jurisdiction pursuant to 28 U.S.C. § 157(a) and § 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective June 24, 2013. D. Kan. Standing Order No. 13-1, printed in D. Kan. Rules of Practice and Procedure at 168 (March 2014). Confirmations of plans are core proceedings which this Court may hear and determine as provided in 28 U.S.C. § 157(b)(2)(L). There is no objection to venue or jurisdiction over the parties.
. See Andrea Boyack and Judge Robert Berger, Bankruptcy Weapons to Terminate a Zombie Mortgage, 54 Washburn L.J. 451, 469-70 (2015).
. Doc. 69.
. The stipulation also includes the following: "Debtor's counsel has indicated that debtor refuse[s] to participate in any loss mitigation proceedings with Wells Fargo Bank, N.A., if those proceeding^] are going to have any negative implications on [his] taxes or credit report.” Doc. 69 at 3, ¶ 20.
. Doc. 59.
. Id. at 4-5.
. 11 U.S.C. § 1322(b)(9). References in the text to Title 11 shall be to the section number only.
. "Under the cram down option, the debtor is permitted to keep the property over the objection of the creditor; the creditor retains the lien securing the claim, see § 1325(a)(5)(B)(i), and the debtor is required to provide the creditor with payments, over the life of the plan, that will total the present value of the allowed secured claim, i.e., the present value of the collateral, see § 1325(a)(5)(B)(ii).” Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 957, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). Because Debtor does not rely upon cram down under § 1325(a)(5)(B), the Court does not consider this subsection.
. Doc. 73 at 14 ("The defmition[s] of the two words [vesting and surrender] are not the same.”).
. Doc. 77 at 8 ("Debtor's Motion to Amend the Plan violates Section 1325(a)(5)(C) because it proposes that the Debtor is allowed to do more than merely 'surrender' the properfy-”)-
. In re Rose, 512 B.R. 790; 793 (Bankr.W.D.N.C. 2014).
. In re Rosa, 495 B.R. 522, 523 (Bankr.D.Haw. 2013).
.Id. at 524.
. In re Sagendorph, 2015 WL 3867955 at *2 (Bankr.D.Mass. June 22, 2015).
. In re Locascio, No. 12-23159, doc. 58 (Bankr. D. Kan. Dec. 30, 2013).
. The Locascios' counsel was Jonathan C. Becker, who is counsel for Debtor in this case.
. E.g., In re Rosa, 495 B.R. at 525; In re Stewart, 536 B.R. 273, 274-75 (Bankr.D.Minn. 2015).
. E.g., Wachovia Dealer Servs. v. Jones (In re Jones), 530 F.3d 1284, 1291 (10th Cir. 2008).
. In re Sagendorph, 2015 WL 3867955.
. Id. at *4 (citing Pratt v. Gen. Motors Acceptance Corp. (In re Pratt), 462 F.3d 14, 19 (1st Cir. 2006)).
. Id. at *5.
. In re Zair, 535 B.R. 15 (Bankr.E.D.N.Y. 2015).
. At at 21.
. Id. at 22.
. Id. at 23-24.
. In re Rosen and Jaclcson, No. 11-23129, doc. 41 (Bankr.D.Kan. Feb. 24, 2015).
. Id. at 5, ¶ 17. The order was prepared by the debtors' counsel, Jonathan C. Becker, who is also counsel for Debtor in this case.
. Id. at ¶ 18.
. Bank of New York Mellon v. Watt, 2015 WL1879680 *2 (D.Or. April 22, 2015) (appeal filed June 16, 2015).
. Id. at *5 (quoting In re Rosa, 495 B.R. at 524).
. Id. at *6.
. In re Rose, 512 B.R. 790.
.Id. at 793-95.
. Id. at 796.
. In re Sagendorph, 2015 WL 3867955 at *2:
. Further, in this case, the Property is subject to a junior hen. The Proposed Amendment provides: "All secured claims secured by the [Property] will be paid by surrender of the collateral and foreclosure of the security interests.” Debtor does not contend that confirmation would eliminate the junior lien, but appears to suggest that Wells Fargo should eliminate the lien in state court. Because Wells Fargo would become the title holder upon plan confirmation, the Court observes that it may be unable to eliminate the junior lien through foreclosure of its mortgage, as provided in the Proposed Amendment. Even if the Court were to accept the proposition that § 1322(b)(9) should be construed to allow vesting of the Property in Wells Fargo over its objection, the Proposed Amendment could not be confirmed unless the Court were satisfied that the presence of a junior hen did not preclude confirmation. However, Debtor has not adequately briefed this issue, and the Court makes no findings in this regard.
.Watt, 2015 WL 1879680 at *6.
. Butner v. United States, 440 U.S. 48, 56, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
. Doc.59.
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- IN RE: Bradley Scott WILLIAMS, Debtor
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