Nuvell Financial Services Corp. v. Dean
Opinion of the Court
Nuvell Credit Company, LLC, f/k/a Nu-vell Credit Corporation (“Creditor”) directly appeals the bankruptcy court’s Order Confirming Chapter 13 Plan in the case of James and Stacie Dean (“Debtors”). Central to this appeal is the question of whether a claim that falls within the “hanging paragraph” at the end of Title 11, United States Code, Section 1325(a)(9), is an allowed secured claim entitling the Creditor to payment in full, plus post-petition interest.
I. BACKGROUND
The facts of this case are undisputed and can be stated briefly. On June 15, 2004, the Debtors purchased a 2004 Kia Spectra vehicle for their personal use, utilizing a retail installment sales contract. The contract provided for a finance charge of 16.95%, and it was assigned to the Creditor for value. On March 16, 2006, the Debtors filed for Chapter 13 bankruptcy. At that time, the Debtors still owed $14,571.72 on the vehicle, and the Creditor filed a secured claim in that amount. In their plan, the Debtors proposed to pay $8,475.00 (the value of the vehicle at that time), plus interest at a rate of 7.5%. The Creditor objected to confirmation of the plan on the grounds that it was entitled to the full amount of its claim and that “the proposed rate of interest is insufficient to pay [the Creditor] the present value of its claim.” Relying on two of his earlier decisions in similar cases, discussed infra, the bankruptcy judge held that the Creditor was entitled to receive the full amount of the claim, but without post-petition interest. Upon review, and pursuant to Title 28, United States Code, Section 158(d)(2)(A), the district court certified this direct appeal in order to, inter alia, resolve a conflict created by this judge’s several decisions and those of other bankruptcy judges within this Circuit.
II. JURISDICTION AND STANDARD OF REVIEW
We have direct appellate jurisdiction in a bankruptcy proceeding if, as here, the district court certifies that: (1) an order entered in the case involves a ques
III. ANALYSIS
We must begin our analysis of whether the Creditor’s claim is a secured claim to which the hanging paragraph applies by examining the applicable statutory language. Section 506 of the Bankruptcy Code provides in relevant part:
(a)(1) 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 in the estate’s interest in such property ... 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. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property])]
11 U.S.C. § 506(a)(1) (emphasis added). Prior to 2005, a Chapter 13 debtor could use this section to bifurcate the claim and have the bankruptcy court “cramdown” his or her debt by treating the present value of the collateral as a secured claim, while leaving the remaining portion as an unsecured claim and shared, pro rata, with other unsecured creditors. It seems to be undisputed that Congress viewed this use of “cramdown” as abusive and unfair to car lenders and other lienholders, so it sought to protect “910-claims” by adding the hanging paragraph to section 1325(a) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”).
The bankruptcy court did not set forth the rationale for its decision. Rather, the judge indicated that his decision was based on “the reasons provided” in two of his earlier opinions, In re Carver, 338 B.R. 521 (Bankr.S.D.Ga. 2006), and In re Green, 348 B.R. 601 (Bankr.M.D.Ga. 2006). In Carver, the same judge held:
*1319 [N]othing in the text of the hanging paragraph suggests that Congress intended 910 claims to be treated as secured claims. The only generally applicable definition of a secured claim comes from § 506. By rendering that section inapplicable to 910 claims, Congress expressly eliminated the mechanism by which they could be treated as secured under the Chapter 13 plan.
* * *
The Court is persuaded that the text of the statute plainly prevents 910 claims from being treated as secured under a Chapter 13 plan.
338 B.R. at 525-26. Carver recognized that if 910-claims were not secured claims, then they were not entitled to treatment under section 1325(a)(5), so that left the question of “how such claims should be paid under the plan.” Id. at 527. The judge proceeded to “extrapolate congressional intent” and craft a formula for their treatment. Starting with the premise that Congress did not intend the hanging paragraph to “punish” holders of 910-claims, he fashioned the following rule which he conceded was “awkward and cumbersome:”
[A] 910 claim must receive the greater of (1) the full amount of the claim without interest; or (2) the amount the creditor would receive if the claim were bifurcated and crammed down (i.e., secured portion paid with interest and unsecured portion paid pro rata).
Id. at 528 (emphasis in original).
I will continue to follow my decision in Carver. It would be more convenient to follow the consensus of opinion if I could do so in good conscience, but I do not believe the majority view correctly follows established principles of statutory construction.
The issue presented in this case, as just noted, has been litigated extensively
Applying this reasoning, the bankruptcy court’s Order Confirming Chapter 13 Plan is at odds with the result reached by Jones and nearly all other courts because it does not provide for payment of interest on the Creditor’s 910-claim.
IV. CONCLUSION
For the foregoing reasons, we VACATE the bankruptcy court’s order confirming the plan and REMAND to the bankruptcy court for proceedings consistent with this opinion.
. The section in question has been called the hanging paragraph because, although it is set forth as a subparagraph following 11 U.S.C. § 1325(a)(9), it is not separately designated by letter or number. Rather, it just "hangs" without ordered designation and without surrounding context. It has been variously referred to by courts as section 1325(a)(9), section 1325(a)(*), and as the "hanging paragraph." For purposes of this opinion, we will use hanging paragraph in text and § 1325(a)(*) for citations.
. A ''910-claim” is a purchase money security interest for a debt incurred during the 910-day period prior to filing for bankruptcy relief, secured by a motor vehicle purchased for the personal use of the debtor. It is undisputed by the parties in this case that the Creditor’s claim qualifies as a ''910-claim” under the hanging paragraph.
. This rule is adapted from similar treatment afforded other kinds of claims in section 1111(b), and was the rule that the bankruptcy judge imposed here. The Creditor was awarded the full amount of the claim, but without interest, because that provided a greater distribution than a "cramdown.”
. The bankruptcy judge recognized in Green that while "no subsequent decisions have agreed with me as to the payment of a 910 claim, two other cases have concluded that a 910 claim is not a fully secured claim.” 348 B.R. at 605. However, after Green was decid
. This conclusion raises the question of what interest rate should be applied. Because the Creditor only asks for the "prime-plus” rate adopted by Till v. SCS Credit Corp., 541 U.S. 465, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004), we need not, and do not, decide whether the Till rate of interest must apply to 910-claims, as opposed to the contract rate of interest.
Reference
- Full Case Name
- In re James Wylee DEAN, Stacie L. Dean, Debtors. Nuvell Financial Services Corp. v. James Wylee Dean, Stacie L. Dean, a.k.a. Stacie L. McGee, a.k.a. Stacie L. Calhoun
- Cited By
- 3 cases
- Status
- Published