In re Smiley
In re Smiley
Opinion of the Court
OPINION
As the Supreme Court has held - state law defines property interests.
This matter comes before the Court on a confirmation hearing of the Chapter 13 plan (“Plan”)
The following shall constitute the Court’s findings of fact and conclusions of law as required by Federal Rule of Bankruptcy Procedure 7052.
JURISDICTION AND VENUE
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Standing Order of Reference from the United States District Court for the District of New Jersey dated July 23, 1984 and amended September 18, 2012. This matter concerns the confirmation of a Chapter 13 plan. It constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L). Venue is proper under 28 U.S.C. § 1408.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The facts relevant to this decision are not in dispute. The Association is a nonprofit corporation operating as the condominium association for a planned-unit development known as “Hampton Commons” in Newton, New Jersey. The Association was established pursuant to the Condominium Act, and by Master Deed dated February 11,1986 and recorded September 29, 1986 in the Sussex County Clerk’s Office in Deed Book 1385, Page 64, et seq. (“Master Deed”).
According to Article VII, Sections 7-9 of the Master Deed, each member of the Association is obligated to pay mainte
9. That the owner of each unit is bound to contribute according to the percentage of his undivided interest in the common elements towards the expenses of administering and of maintenance and repairs of common elements, the expenses of administering and maintaining the Association, and all of its real and personal property in such amounts as shall from time to time be fixed by the Association. ...9
According to the Association’s Bylaws and its Resolution Pertaining to Collection of Delinquent Assessments (the “Resolution”), if a unit owner defaults in paying his/her maintenance fees, the Association may accelerate the monthly payment for the remainder of the Association’s fiscal year, record a lien against the unit for any portion of the unpaid maintenance fees, and foreclose upon said lien in the same manner as afforded to mortgage lenders.
[a]ll installment payments on any type of assessment including special assessments shall be due and payable within fifteen (15) days after the due date thereof. The remaining assessment installments, including any special assessment instalments, shall be accelerated if the delinquent installment has not been paid by ninety (90) days after the due date. After ninety (90) days the entire assessment balance shall be fully due and payable and the delinquent unit owner shall be notified that a lien for the accelerated assessment amount shall be recorded following a time period set forth in the notice if not paid in full. Should default continue for a period of thirty days (30) days or more after the filing of the lien, then the Board may foreclose on the lien pursuant to Law and/or commence a suit against the delinquent unit owner to collect the assessment. The Board shall also notify any Mortgage holder on the unit of the default by the owner.11
Article VII, Section 10 of the Master Deed provides that late fees may be assessed for the unit owner’s failure to pay maintenance fees on time.
10. That all charges, expenses and assessments chargeable to any unit plus reasonable attorney’s fee [sic] incurred for the recovery thereof, shall constitute a lien against said unit in favor of the Association, which lien shall be prior to all other liens except: (1) assessments liens and charges for taxes past due and unpaid on the unit; and (2) payments due under bona fide mortgage instruments, duly recorded, prior to such assessments. The Association’s lien shall be recorded inthe [sic] Clerk’s Office of Sussex County pursuant to the Condominium Act, N.J.S.A. 46:8B-21....14
On February 29, 2012, the Association recorded a $5,870.08 lien against the Property for unpaid assessments, charges, and expenses due to the Association (“2012
On February 10, 2016, the Debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code.
Debtor’s Arguments for Cram-Down of the Association’s Claim.
On its face, the Plan proposes to cram-down and bifurcate the Association’s claim under section 1322(b)(2). Pursuant to the Plan, the Association’s secured claim is reduced to $1,710.00 and the balance of the secured portion is reclassified as unsecured.
The Association objected to the Plan. The Association contends that it is entitled to the full value of its secured claim and that the Debtor’s attempt to bifurcate and cram-down the Association’s secured claim is in contravention of section 1322(b)(2). The crux of the Association’s arguments is two-fold. First, the Association asserts section 46:8B-21(b) of the Condominium Act provides condominium association liens
Second, the Association asserts that, unless the value of the Property is entirely exceeded by municipal and federal tax liens, the limited priority created by section 46:8B-21(b) guarantees a portion of the Association’s claim will always have a secured interest in the Property.
The Court held a¡ confirmation hearing on September 28,2016. The Debtor argued she is permitted to modify the Association’s secured claim pursuant to section 1322(c)(2) - not section 1322(b)(2). The Debtor maintained that section 1322(c)(2) is an exception to section 1322(b)(2). The Debtor acknowledged that section 1322(b)(2) applies by focusing on the exception contained in section 1322(c)(2). Since neither the Debtor nor the Association previously briefed this theory, the Court required supplemental briefing and adjourned the confirmation hearing.
Both the Debtor and the Association submitted supplemental briefing.
After the hearing, the Court reviewed the parties’ arguments and observed that neither the Debtor nor the Association briefed
Both the Debtor and the Association submitted supplemental briefing.
On the other hand, the Association first urges the Court that Holmes is not binding authority.
In response to the Debtor’s allegation that the Association failed to produce evidence indicating it provided notice of the Liens to the Debtor and Champion Mortgage, the Association asserts section 46:8B-21(b)(6) “is not relevant to the matter before the Court.”
DISCUSSION
Section 1322(c)(2) is an exception to section 1322(b)(2). Therefore, before the Court can address whether the Debtor’s section 1322(c)(2) argument has merit, the Court must first address whether the Association’s secured claim is insulated from modification by section 1322(b)(2). If section 1322(b)(2) does not afford anti-modification protections to the Association’s secured claim, the Debtor may modify the Association’s secured claim and a section 1322(c)(2) analysis would be superfluous. If section 1322(b)(2) provides anti-modification protections to the Association’s secured claim, then this Court must further analyze whether the exception set forth in section 1322(c)(2) applies.
I. Bankruptcy Code Section 1322(b)(2).
A Chapter 13 plan may generally modify the rights of holders of secured claims. Specifically, “a debtor’s bankruptcy plan may modify the unsecured portion of a lien down to the amount of the collateral securing it when the collateral is worth less than the lien, a process referred to as ‘stripping,’ ‘cramming down,’ or ‘bifurcating’ the lien.”
(b) Subject to subsections (a) and (c) of this section, the plan may—
* ⅛ *
(2) 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 ....58
Notably, the plain language of section 1322(b)(2) indicates that the provision applies solely to a “security interest.” Fortunately, section 101(51) of the Bankruptcy Code provides a definition of a “security interest”: “[t]he term ‘security interest’ means lien created by an agreement.”
II. The Condominium Association’s Lien — Statutory, Consensual, or Both?
Section 101(37) defines “liens” as a “charge against or interest in property to secure payment of a debt or performance of an obligation.”
The Association contends the limited priority created by section 46:8B-21(b) guarantees a portion of - the Association’s secured claim will always have a secured interest in the Property and, therefore, the Association’s claim is afforded anti-modification protections pursuant to section 1322(b)(2). In relevant part, section 46:8B-21 states the following:
a. The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed the association, upon proper notice to the appropriate unit owner, together with interest thereon and, if authorized*386 by the master deed or bylaws, late fees, fines and reasonable attorney’s fees; provided however that an association shall not record a lien in which the unpaid assessment consists solely of late fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. Upon full payment of all sums secured by the lien, the party making payment shall be entitled to a recordable satisfaction of lien. Except as set forth in subsection b. of this section, all such liens shall be subordinate to any lien for past due and unpaid property taxes, the lien of any mortgage to which the unit is subject and to any other lien recorded prior to the time of recording of the claim of lien.
b. A lien recorded pursuant to subsection a. of this section shall have a limited priority over prior recorded mortgages and other liens, except for municipal liens or liens for federal taxes, to the extent provided in this subsection. This priority shall be limited as follows:
(1) To a lien which is the result of customary condominium assessments as defined herein, the amount of which shall not exceed the aggregate customary condominium assessment against the unit owner for the six-month period prior to the recording of the lien.
(2) With respect to a particular mortgage, to a lien recorded prior to: (a) the receipt by the association of a summons and complaint in an action to foreclose a mortgage on that unit; or (b) the filing with the proper county recording office of a lis pendens giving notice of an action to foreclose a mortgage on that unit.
(3) In the case of more than one association lien being filed, either because an association files more than one lien or multiple associations have filed liens, the total amount of the liens granted priority shall not be greater than the assessment for the six-month period specified in paragraph (1) of this subsection. Priority among multiple filings shall be determined by their date of recording with the earlier recorded liens having first use of the priority given herein.
(4) The priority granted to a lien pursuant to this subsection shall expire on the first day of the 60th month following the date of recording of an association’s lien.
(5) A lien of an association shall not be granted priority over a prior recorded mortgage or mortgages under this subsection if a prior recorded lien of the association for unpaid assessments has obtained priority over the same recorded mortgage or mortgages as provided in this subsection, for a period of 6.0 months from the date of recording of the lien granted priority.
(6) When recording a lien which may be granted priority pursuant to this act, an association shall notify, in writing, any holder of a first mortgage lien on the property of the filing of the association lien. An association which exercises a good faith effort but is unable to ascertain the identity of a holder of a prior recorded mortgage on the property will be deemed to be in substantial compliance with this*387 paragraph. ...66
The Court of Appeals for the Third Circuit has not addressed the issue before this Court. Nevertheless, several courts within the District of New Jersey have grappled with the issue
Robinson I was the first decision by a bankruptcy court in the Distribt of New Jersey to address whether condominium liens may or may not be modified in a Chapter 13 plan.
Virtually the same issue arose in another identically named
The condominium association lien issue reappeared in 2015, but this time the bankruptcy court tackled the issue of whether the lien arose by statute (section 46:8B-21) or through the language in the master deed and/or bylaws.
[i]t is the act of purchasing the condominium unit, and voluntarily accepting and recording the unit deed, that gives rise to the lien.
* * *
In order to gain the benefit of the super-priority lien provided by the [Condominium] Act, the condominium association must record a Notice of Lien in accordance with the [Condominium] Act. The [Condominium] Act bestows a priority to the condominium association for the “aggregate customary condominium assessment against the unit owner for the six-month period prior to the recording of the lien ...” [section] 46:8B-21. The fact that the Act provides a statutory priority lien for a portion of the claim does not*389 change the character of the lien as a security interest.88
In the end, Judge Gravelle ruled that the secured claim could be bifurcated and the portion of the claim that did not have a statutory priority was subject to modification.
The condominium association appealed Judge Gravelle’s ruling. It is important to note that on appeal to the district court, the parties did not contest Judge Gra-velle’s characterization of the condominium association’s lien as a consensual lien. The parties instead limited the appeal to a single issue: whether a consensual lien, with a partial priority, could be crammed-down.
The nature of a condominium association’s lien was again revisited in the New Jersey district court case Holmes. In Holmes, the debtor appealed a bankruptcy court decision
The appeal presented a single issue: whether a condominium association lien is a security interest in the debtor’s principal residence, and hence subject to' the anti-modification provision set forth in section 1322(b)(2).
[s]o it is not so simple to say that there is a security interest (ie., one arising from agreement), as to which the [Condominium] Act merely sets a priority. Remember, the condominium association’s lien is secured by the unit (which is underwater on its mortgage) only to the extent it can be regarded as senior to the mortgage. So the priority issue under the [Condominium] Act is inextri*390 cably intertwined with the issue of whether the lien is secured by the unit at all.98
In the most recent decision, Keise, a District of New Jersey bankruptcy court was again asked to revisit whether, for the purposes of section 1322(b)(2), a lien held by either a homeowner’s or condominium association
The Keise court partially deviated from Judge Gravelle’s holding in Rones, finding the condominium association’s claim as:
secured simultaneously by two separate liens — one consensual lien created by the Declaration and one statutory lien created by the New Jersey Condominium Act — with each lien available to the [condominium association’s] to enforce its claim .... [E]ach lien offers both, benefits and burdens with regard to creation, perfection and enforcement.108
In reaching its ultimate holding, the Keise court made a number of findings. First, “[t]he Condominium Act explicitly provides for the creation of a lien.”
[w]hile the Court deems it evident that the [Condominium] Act, in and of itself, creates a lien securing outstanding assessments, the [c]ourt also finds that the Declaration creates a consensual lien. Specifically, the Declaration states in relevant part, “assessments], together with such interest thereon, late charges, and cost of collection thereof (including reasonable attorneys’ fees) shall be a continuing lien upon the Lot against which each such assessment is made ...” Thus, by consenting to the Declaration, the Debtors also have granted a lien in favor of the [association in the event the [d]ebtors fail to pay assessments.112
Third, Judge Kaplan opined that K[n]othing in the Condominium Act, the Declaration or the bankruptcy code precludes the creation and employment of multiple enforcement mechanisms to recover a single debt.”
f. Liens for unpaid assessments may be foreclosed by suit brought in the name of the association in the same manner as a foreclosure of a mortgage on real property. ... Suit to recover a money judgment for unpaid assessments may be maintained without waiving the hen securing the same. Nothing herein shall alter the status or priority of municipal hens under R.S.54:5-1 et seq.114
The court interpreted this subsection to mean “an association may pursue an in personam judgment, resulting in a judgment hen, without waiving its rights to pursue enforcement of its statutory hen.”
Finally, Judge Kaplan deduced that finding the homeowner’s association’s claim is secured by both a consensual hen and statutory hen is consistent with and reinforces public policy concerns.
As the Third Circuit has observed, “[t]he legislative history of § 1322(b)(2) ‘indicates that it was designed to protect and promote the increased production of homes and to encourage private individual ownership of homes as a traditional and important value in American life.’ ” In re Ferandos, 402 F.3d 147, 151 (3d Cir. 2005) (quoting In re Davis, 989 F.2d 208, 210 (6th Cir. 1993)). The Supreme Court has also noted that the protection afforded to residential mortgage lenders*392 by § 1322(b)(2) “was intended to encourage the flow of capital into the home lending market.” Nobelman, 508 U.S. at 332, 113 S.Ct. at 2112, 124 L.Ed.2d. However, a residential mortgage is not at issue in this case. Instead, the claim is for unpaid condominium association fees, which are not the types of debts Congress sought to protect by enacting § 1322(b)(2).119
In finding that the condominium association’s claim is secured by both a consensual and statutory lien, Judge Kaplan held that the condominium association’s claim “does not fall within the ambit of § 1322(b)(2).”
A. The Association Complied with Sections 46:8B-21(a) and (b)(6).
At the outset, the Court must address the Debtor’s challenge as to whether the Association provided sufficient evidence to prove it notified the Debtor and Champion Mortgage of its Liens in accordance with sections 46:8B-21(a) and (b)(6). Section 46:8B-21(a) requires, inter alia, that the condominium association provide notice of the lien “to the appropriate unit owner.” At the same time, in order for a lien to benefit from the limited priority, it needs to also satisfy six requirements listed under section 46:8B — 21(b), one of which is subsection (6). Section 46:8B-21(b)(6) provides the following:
(6) When recording a lien which may be granted priority pursuant to this act, an association shall notify, in writing, any holder of a first mortgage lien on the property of the filing of the association lien. ...123
In response to the Debtor’s challenge, the Association submitted to the Court copies of two letters. The first letter was sent to the Debtor and the second letter was sent to Champion Mortgage. Both letters were sent on June 7, 2013. In sum, both letters explain that the 2013 Lien was being recorded on the Property due to the Debt- or’s failure to pay monthly assessments. The Court finds the letters to be sufficient evidence demonstrating the Association notified both the Debtor and Champion Mortgage of the 2013 Lien and, therefore, complied with sections 46:8B-21(a) and (b)(6).
The Association failed to provide the Court with evidence indicating it notified the Debtor and/or Champion Mortgage that it was recording the 2012 Lien. Therefore, the Court cannot find that the 2012 Lien benefits from limited priority over Champion Mortgage. However, the Court does not find this to be a fatal omission because section 46:8B-21(b)(5) prohibits a condominium association from holding two liens with limited priority on the same property. Section 46:8B-21(b)(5) provides the following:
[a] lien of an association shall not be granted priority over a prior recorded mortgage or mortgages under this subsection if a prior recorded lien of the association for unpaid assessments has obtained priority over the same record*393 ed mortgage or mortgages as provided in this subsection, for a period of 60 months from the date of recording of the lien granted priority.124
The Association recorded the 2012 Lien in February 2012 and the 2013 Lien in June 2013. The Liens were recorded approximately 16 months apart from each other. Even if the Association provided evidence that it notified the Debtor and Champion Mortgage of the 2012 Lien, pursuant to section 46:8B-21(b)(5) only one of the Liens would maintain limited priority over Champion Mortgage. Since the Association provided evidence sufficient to support the 2013 Lien, that is the lien the Court will review.
B. The Association’s Secured Claim is Secured by Both a Consensual and Statutory Lien.
The Court is persuaded by and adopts the reasoning in Keise. For the reasons stated in Keise, the Court finds the Association’s secured claim is secured by both a statutory lien arising out of the Condominium Act and a consensual lien arising out of the Master Deed. This Court joins the Keise court and accepts the suggestion made by the Holmes court that section 46:8B-21(a) operates to create a lien. First, this Court agrees that the language of section 46:8B-21(a) explicitly provides for the creation of a statutory lien by utilizing the phrase “[t]he association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed to the association. ...”
Beyond the fact that the Association concedes that its secured claim is secured by a consensual lien, the Court also finds the Master Deed creates a consensual lien. Specifically, the Master Deed states: “all charges, expenses and assessments chargeable to any unit plus reasonable attorney’s fee [sic] incurred for the recovery thereof, shall constitute a lien against said unit in favor of the Association ... ,”
C. The Debtor May Modify the Association’s Secured Claim.
The Court finds that section 1322(b) does not apply because the Association’s
However, not all is lost for the Association. As previously stated “[property interests are created and defined by state law.”
b. A lien recorded pursuant to subsection a. of this section shall have a limited priority over prior recorded mortgages and other liens ....
(1) To a lien which is the result of customary condominium assessments as defined herein, the amount of which shall not exceed the aggregate customary condominium assessment against the unit owner for the six month period prior to the recording of the lien.133
Section 46:8B-21(a) provides the Association with a six month priority that is not subject to modification or cram-down. The Court finds that the Association possesses a secured claim for $1,500.00, representing six months of unpaid condominium assessments, payable under the Plan. When the 2013 Lien was recorded, the Association charged a $250.00 monthly condominium assessment fee. Six months of such monthly condominium fees equates to $1,500.00. The residual amount of the Association’s lien has no priority and is subordinate to the existing lien of Champion Mortgage. Accordingly, the balance of the Association’s claim is unsecured and shall be treated under the Plan the same as all other general unsecured claims.
CONCLUSION
The Court overrules the Association’s objection and grants confirmation of the Debtor’s proposed plan. The Debtor may amend her Plan to provide for a payment of $1,500.00 to the Association and designate the reminder of the Association’s claim as unsecured. The Debtor’s counsel or the Standing Chapter 13 Trustee shall submit a proposed form of order consistent with this Court’s opinion.
. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
. References to the Bankruptcy Code are to the United States Bankruptcy Code, 11 U.S.C. §§ 101, et. seq.
. New Jersey’s Condominium Act, New Jersey Statute Annotated 46:8B-1.1, et. seq., ("Condominium Act”).
. (Docket No. 12).
. (Docket No. 20).
. To the extent any .of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent any conclusions of law might constitute findings of fact, they are adopted as such.
. (Docket No. 20 at 4-6).
. (Id. at 7-15).
. (Id. at 21).
. (Id. at 22-24).
. (Id. at 23).
.(Id. at 17).
. (Id.).
. (Id.) (error in original).
. (Id. at 26).
. (Id.).
. (Id. at 28).
. (Id.).
. (Docket No. 1).
. (Docket No. 11 at 3),
. (Docket No. 12 at 3, 5-6).
. (Docket No. 26 at 3).
. (Proof of Claim No. 2 at 7) ("[a]ccelerated [m]onthly assessments from 6/1/2013 through and including 12/31/2013 ($250.00 @ 7 months)... $1,750.00”) (emphasis in the original).
. (Id. at 9-10).
. (Docket No. 20 at 32-33).
. (Id. at 34).
. (Id. at 33-35).
. 231 B.R. 30, 35 (Bank. D.N.J. 1997).
. No. 11-26981-RTL, 2012 WL 761251, at *1 (Bankr, D.N.J. Mar. 7, 2012).
. 551 B.R. 162, 167-68 (D.N.J. 2016).
. The Court notes that the Liens appear to be separate and apart from each other. The 2012 Lien covers unpaid assessments. charges, and expenses due to the Association from February 2012 to December 2012. (Id. at 26). The 2013 Lien covers unpaid assessments, charges and expenses due to the Association from May 2013 December 2013, (Id. at 28). The Association failed to submit any documents to this Court indicating the 2013 Lien amended and/or a continued the 2012 Lien,
. (Docket Nos. 26 and 27).
. (Docket No. 26 at 7).
. (id.).
. (Docket No. 27 at 4).
. (Id. at 4, 6).
. (Id. at 4-6).
. The Debtor cited to Holmes as part of a string cite in one of her supplemental submissions. See (Docket No. 26 at 6). However, the Debtor failed to elaborate whether the decision impacted her legal position.
. No. 15-6834 (KM), — B.R. -, -, 2016 WL 4950993, at *1 (D.N.J. Sept. 16, 2016).
. Id. at-, at *5.
. Id. at-, at*4.
. Id.
. The Court also permitted the parties to file responses to each other’s supplemental briefs.
. After the Holmes decision, another New Jersey bankruptcy court addressed whether a homeowner’s or condominium association's lien is created by contract and/or by statute. See In re Keise, 564 B.R. 255 (Bankr. D.N.J. 2017) (finding that a homeowner’s association’s claim is simultaneously secured by both a consensual and statutory lien). The Keise decision is discussed in substantial detail below.
. (Docket Nos. 30 and 31).
. (Docket No. 30 at 1)
. (Id. at 3).
. (Id.).
. (Id. at 4-5).
. (Id. at 4) (error in original).
. (Docket No. 31 at 2).
. (Id.).
. (Id. at 4).
. (Docket No. 34 at 2).
. (Docket No. 34 at 4-14).
. (Id. at 10),
. Rones, 551 B.R. at 167.
. 11 U.S.C. § 1322(b)(2) (emphasis added); see Nobelman v. Am. Sav. Bank, 508 U.S. 324, 325-26, 332, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (chapter 13 debtor cannot strip down a partially unsecured residential mortgage lien secured only by the debtor’s principal residence).
. 11 U.S.C. § 101(51),
. Holmes, — B.R. at -, 2016 WL 4950993, at *4 (citing 11 U.S.C. § 101(53)).
. See Holmes, — B.R. at - - -, 2016 WL 4950993, at *4-5; In re Rones, 531 B.R. 526, 530 (Bankr. D.N.J. 2015); Keise, 564 B.R. at 258.
. Keise, 564 B.R. at 258.
. 11 U.S.C. § 101(37).
. H.R. REP. 95-595, 312, 1978 U.S.C.C.A.N. 5963, 6269.
. Butner, 440 U.S. 48, 54-55, 99 S.Ct. 914.
. Condominium Act § 46:8B-21(a)-(b).
. My colleague, the Honorable Michael B. Kaplan, provided an updated and full analysis of the existing case law within the District of New Jersey. See Keise, 564 B.R. at 263-64 (citing Robinson, 2012 WL 761251, at *1-*3; Rones, 531 B.R. at 526; Rones, 551 B.R. at 162; Holmes, - B.R. at -, 2016 WL 4950993, at *4). Nonetheless, it is necessary to again review and discuss those same cases in order to provide the background for the conclusion reached by this Court.
. Keise, 564 B.R. at 262-63.
. See Robinson, 231 B.R. at 30-31.
. Id.
. Id. at32n.l.
. Id.
. Id. at 34.
. See In re McDonald, 205 F.3d 606 (3d Cir. 2000).
. Id. at 615.
. Robinson I and Robinson II concern completely different debtors and are in no way related.
. 2012 WL 761251, at *1.
. Id. at *3-4.
.Id. at *3.
. Id.
. Id. at *2.
. See Rones, 531 B.R. 526.
. Id. at 530, Judge Gravelle stated the following:
[w]hile it appears to this Court that the [Bankruptcy] Code definitions of various liens are clear on their face, courts are split on their classification of condominium liens. Compare In re Robinson, 231 B.R. 30, 34 (Bankr. D.N.J. 1997) (notes condominium lien is security interest); In re Beckley, 210 B.R. 391, 393 (Bankr. M.D. Fla. 1997) (debt owed to association in form of final judgment remains a security interest); Philtippy v. Corkscrew Woodlands Assocs., Inc. (In re Phillippy), 178 B.R. 67, 69-70 (Bankr. M.D. Pa, 1994) (debt owed to association pursuant to notice of lien remains security interest); In re Bland, 91 B.R. 421, 422 (Bankr. N.D. Ohio 1988) (condomini-urn liens are security interests, not judicial liens, for purposes of 11 U.S.C. § 522(f)) with In re Green, 516 B.R. 347, 351 (E.D. La. 2014) (condominium lien arises from statute, not Declaration); Young v. 1200 Buena Vista Condos., 477 B.R. 594, 602 (W.D. Pa. 2012) (condominium liens are statutory); In re Lopez, 512 B.R. 663, 671 (Bankr. D. Colo. 2014) (condominium association lien generally recognized as statutory).
Rones, 531 B.R. at 530,
. Id. at 531.
. See Green, 516 B.R. 347, 351 (E.D. La. 2014) (holding .that the condominium associa-. tion’s lien against debtor's condominium unit was statutory, and thus could be modified pursuant to debtor's Chapter 13 Plan); Young, 477 B.R. 594, 602 (W.D. Pa. 2012) (finding the condominium association liens are statutory).
. Id. at 533.
. Id.
. Id. at 536-37.
. See In re Rones, 551 B.R. 162.
. The bankruptcy court issued an oral decision.
. — B.R. at-, 2016 WL 4950993, at *1-2.
. Id, at-, at *1 (summarizing the bankruptcy court’s holding).
. Id.
. Id. at-, at *5.
. Id. at -, at *4 (emphasis in original) (citing section 46:8B-21(a) ("[t]he association shall have a lien on each unit for any unpaid assessment ... upon proper notice to the appropriate unit owner”)).
. Id. at-, at *4 (emphasis in original).
. In Keise., the issue related to a homeowner's association instead of condominium association. 564 B.R. at 256. Judge Kaplan - while not agreeing with the legal authority leading to his conclusion - ultimately recognized that condominium associations and homeowner’s associations are both controlled by the Condominium Act. Id.
. The only undeniable, albeit inconsequential, factual difference is that this case pertains to a condominium association while Keise concerned a homeowner’s association. See id. at 256,
. Id. at 257.
. Id.
. Id. at 262.
. Id.
. Id.
. Id. at 264.
. Condominium Act § 46:8B-21(a).
. Keise, 564 B.R. at 264.
. Id.
. Id.
. Condominium Act § 46:8B — 21(f).
. Keise, 564 B.R. at 265.
. No. A-0894-15T2, 2017 WL 393582 (NJ. Super. Ct. App. Div. Jan. 30, 2017).
. Keise, 564 B.R. at 265 (citing Holmes, — B.R. at -, 2016 WL 4950993 at *4).
. Keise, 564 B.R. at 265.
. id.
. id,
. Id.
. Condominium Act § 46:8B-21(b)(6),
. Id. § 46:8B — 21(b)(5).
. Condominium Act § 46:8B-21(a).
. Id. § 46:8B-9.
. Id.
. (Docket No. 20 at 17) (error in original).
.See Keise, 564 B.R. at 265 (finding a consensual lien existed through the operation of similar language); Rones, 531 B.R. at 533 ("voluntarily accepting and recording the unit deed ... gives rise to the lien.”).
. 11 U.S.C. § 1322(b)(2) (emphasis added).
. Since the Court's holding rules out the applicability of section 1322(b)(2), the Court does not need to analyze whether the Debtor’s section 1322(c)(2) argument has merit as there is no need to evaluate an exception to a provision that does not apply.
. Butner, 440 U.S. at 54-55, 99 S.Ct. 914.
. Condominium Act § 46:8B — 21(b)(1) (emphasis added).
Reference
- Full Case Name
- IN RE: Catherine M. SMILEY, Debtor
- Cited By
- 3 cases
- Status
- Published