Dukes v. Suncoast Credit Union (In Re Dukes)
Opinion
Mildred M. Dukes ("Debtor") filed for Chapter 13 bankruptcy in 2009, and the bankruptcy court confirmed her bankruptcy plan in 2010. At the time her plan was confirmed, Debtor had two outstanding mortgages with Suncoast Credit Union ("the Credit Union"). Debtor's plan did not address the Credit Union's mortgages aside from stating that Debtor would make payments directly to the Credit Union, not through the bankruptcy trustee. The plan did not specify repayment terms for the mortgages, did not set a schedule for repayments, and did not make any changes to the mortgages' terms. When her plan was confirmed, Debtor was current on her payments to the Credit Union.
Debtor made the required payments under her bankruptcy plan, and, in 2012, Debtor made her last payment for her bankruptcy. Accordingly, the bankruptcy court discharged "all debts provided for by the plan."
Debtor, however, had defaulted on her mortgage payments to the Credit Union in 2011. In 2013, the Credit Union foreclosed on Debtor's home under the second mortgage and sought a judgment against Debtor for the remainder on the first mortgage. In 2014, the Credit Union moved to reopen the bankruptcy proceeding and begin an adversary proceeding to declare that Debtor's personal liability on the first mortgage had not been discharged.
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The bankruptcy court and the district court, hearing the initial appeal, both concluded that the first mortgage was not discharged because it was not "provided for" by Debtor's bankruptcy plan. Both also found that, even if the mortgage was "provided for," the discharge did not include the debt for other reasons, including because discharge would violate
On appeal, Debtor contends that both the bankruptcy court and the district court erred in holding that the plan did not "provide for" the Credit Union's mortgage and that discharge was prohibited by § 1322(b)(2). Debtor also asserts that the mortgage was discharged because the Credit Union failed to file a proof of claim for it.
We affirm the bankruptcy court and district court and hold that Debtor's plan did not discharge the Credit Union's mortgage. In doing so, we hold that, for a debt to be "provided for" by a plan under § 1328(a), the plan must make a provision for or stipulate to the debt in the plan. Because Debtor's plan did nothing more than state that the Credit Union's mortgage would be paid outside the plan, it was not "provided for" and was not discharged. Even if it was provided for, we hold that discharge of the Credit Union's debt would violate § 1322(b)(2) by modifying the Credit Union's right under the original loan documents to obtain a deficiency judgment against Debtor. We also hold that the issue of whether the Credit Union's failure to file a proof of claim for its first mortgage resulted in the mortgage's discharge was not preserved for appeal because Debtor did not raise it before the bankruptcy court, and, alternatively, that failure to file a proof of claim did not discharge the Credit Union's mortgage because, again, discharge would violate § 1322(b)(2).
I. BACKGROUND
A. Factual Background
Debtor's first mortgage with the Credit Union was taken out in 1989 and her second mortgage was taken out in 2007. Together, the mortgages total roughly $150,000 and mature in 2022. On February 18, 2009, Debtor filed for Chapter 13 bankruptcy. In her bankruptcy schedules, Debtor listed the Credit Union-then Suncoast Schools Federal Credit Union-as the holder of both the first and second mortgages on her primary residence. At the time Debtor filed for bankruptcy, she was current on her payments for both mortgages. During the bankruptcy proceeding, the Credit Union filed a proof of claim only for the second mortgage (with a balance of approximately $77,000), not the first.
Debtor's plan includes a number of sections potentially relevant to the Credit Union's mortgages. Specifically, the plan lists the amount for the adequate protection payments required under the Bankruptcy Code.
See
First, the plan states that "All secured creditors, except as provided otherwise herein, including mortgage creditors, must be paid through the plan as part of the *1311 plan payment to the Chapter 13 Trustee." Next, the part of the plan titled "Secured Claims," addresses adequate protection payments:
(A) Pre-Confirmation Adequate Protection Payments: No later than 30 days after the date of the filing of this Plan or the Order for Relief, whichever is earlier, the Debtor(s) shall make the following adequate protection payments to creditors pursuant to § 1326(a)(1)(C).... If Debtor(s) elects to make such adequate protection payments directly to the creditor, and such creditor is not otherwise paid through the Plan, such payments shall constitute adequate protection.
Following this and under the heading "Paid directly to the Creditor," the plan includes the following entries:
Creditor Total Est. Claim Direct Ad. Prot. Pay. Suncoast Schools FCU $79000.00 $611.00 Suncoast Schools FCU $77671.00 $1,040.00
Part (B) of the same section addresses "Claims Secured by Real Property Which Debtor(s) Intends to Retain / Mortgage Payments Paid Through the Plan." The Credit Union's mortgages presumptively fit into this category. But, in the section where Debtor could have elected to have the Trustee "pay the post-petition mortgage payments" on Debtor's behalf, Debtor wrote "N/A."
The plan concludes with a calculation of the total debt burden under the plan's payment schedule. This calculation includes a dividend of $3,600 to unsecured creditors, attorneys' fees totaling $1,500, and a trustee's fee of $566.60, for a total of $5,666.66 to be paid off in thirty-six installments over an estimated three years. 1 None of this money goes to pay off the roughly $150,000 Debtor owed on the Credit Union's mortgages.
When Debtor filed her Chapter 13 petition, an automatic stay went into effect that prevented any creditor, including the Credit Union, from foreclosing on Debtor's property.
See
The Credit Union did not object to the plan, and the bankruptcy court confirmed it in May 2010. Shortly thereafter, the court issued a follow-up order identifying the claims that would be allowed and ordering disbursement pursuant to the plan. The Credit Union's first mortgage was omitted from this order, as no proof of claim had been filed. The order listed the second mortgage (for which a proof of claim was properly filed) in "Exhibit D" as "hereby allowed," but noted that "the Trustee shall not make distribution upon such claims" under the confirmed plan.
Thus, at each point in the bankruptcy proceeding, Debtor intended-and was granted the right-to make payments on *1312 the first and second mortgages directly to the Credit Union "rather than through the Chapter 13 Trustee." In fact, the implementing order specifically stated that the Credit Union "SHALL NOT RECEIVE ANY PAYMENT FROM THE CHAPTER 13 TRUSTEE UNDER THE CONFIRMED PLAN." Thus, Debtor's performance of her monthly installment obligations under the plan would do nothing to pay down her mortgage debt owed to the Credit Union.
Once the plan was confirmed, Debtor began making payments to the trustee. She timely made her thirty-six payment obligations and, upon completion, the bankruptcy court discharged "all debts provided for by the plan" in March 2012, under
During this same time period, Debtor made a few of the scheduled payments to the Credit Union on her mortgages but stopped paying altogether in 2011. Both mortgages entered default. In 2013, the Credit Union foreclosed on Debtor's home under the second mortgage and sought a personal judgment against Debtor on the first.
B. Procedural History
In 2014, the Credit Union moved to reopen the bankruptcy case and commenced an adversary proceeding seeking a determination that Debtor's personal liability on the first mortgage had not been discharged. Both parties moved for summary judgment. The bankruptcy court granted summary judgment to the Credit Union and concluded that the Credit Union's mortgage had not been discharged because it was not "provided for" by the plan, as it was paid outside the plan and unaffected by the plan itself. The bankruptcy court also held that, even if the mortgage was provided for, the antimodification provision in § 1322(b)(2) prohibited the discharge from modifying the Credit Union's right to a deficiency judgment and the claim constituted "long-term debt" exempted from discharge under § 1322(b)(5).
See
II. STANDARD OF REVIEW
In a bankruptcy appeal, this Court functions as a second reviewer of the bankruptcy court's rulings and applies the same standards as the district court.
Brown v. Gore (In re Brown )
,
III. DISCUSSION
Debtor asserts that the bankruptcy court's discharge under
Debtor also argues that, regardless of whether the Credit Union's mortgage was provided for by the plan, it was discharged because the Credit Union failed to file a proof of claim for it. This argument was not raised before the bankruptcy court and therefore was not properly preserved for appeal. Even if considered, § 1322(b)(2) prohibits discharge in spite of the Credit Union's failure to file a proof of claim.
A. Whether the Plan "Provided for" the Credit Union's Mortgage
Debtor asserts that the Credit Union's first mortgage was discharged because the plan "provided for" it by stating that it would be paid outside the plan. The Credit Union contends-and the bankruptcy court and district court agreed-that mere reference to the mortgage is insufficient for the plan to have "provided for" it, so the debt was not discharged. After careful review, we agree with the Credit Union, the district court, and the bankruptcy court.
1. Defining "provided for" in § 1328(a)
The bankruptcy court's discharge covered "all debts provided for by the plan."
"When construing the language of a statute, we 'begin [ ] where all such inquiries must begin: with the language of the statute itself,' and we give effect to the plain terms of the statute."
Valone v. Waage (In re Valone )
,
In determining the meaning of "provided for" in § 1328(a), we do not write on a clean slate. In
Rake v. Wade
, the Supreme Court interpreted the phrase "provided for" in § 1325(a)(5) of the Bankruptcy Code.
In
Rake
, the debtors filed for Chapter 13 bankruptcy while in default on their home mortgages, and their bankruptcy plans proposed to cure the defaults through repayment schedules that would be administered inside the plans.
Rake
teaches two critical lessons that apply here. First, "provided for" by the plan means to "make a provision for" or "stipulate to" something in the plan.
Second,
Rake
's distinction between the two claims for underlying debt and arrearages is instructive here. Under the Supreme Court's analysis, the arrearages on the mortgages were " 'provided for' by the plan[s]" because they were to be "paid off within the life of the plans pursuant to repayment schedules
established by the plans
."
Applying this here, we find that, by doing nothing more than mentioning that the Credit Union's mortgage would be paid outside the plan, the plan did not "provide for" the mortgage. The underlying debts paid outside the plan in Rake that were merely "maintained" are analogous to the Credit Union's mortgage here. And, again, the plan did not set a repayment schedule for the mortgage and did not establish any repayment terms. The plan simply stated that Debtor would make any payments directly to the Credit Union. The Credit Union's rights and Debtor's liability remained governed solely by the original loan documents. By neither stipulating to nor making provisions for the Credit Union's mortgage, the plan did not "provide for" it, and the mortgage was not included in the discharge under § 1328(a).
In arguing otherwise, Debtor reads
Rake
far too broadly to support her position that mere reference to the mortgage is sufficient for the plan to "provide for" it. Debtor relies on dicta from
Rake
that, "[a]s used in § 1328(a), ['provided for by the plan'] is commonly understood to mean that a plan 'makes a provision' for, 'deals with,' or even 'refers to' a claim."
Id.
at 474,
2. Debtor's plan in the context of Chapter 13
Reviewing Debtor's plan in the context of Chapter 13 bankruptcy confirms that the Credit Union's mortgage was not "provided for" by the plan. Chapter 13 prohibits the modification of a secured claim unless the debtor either provides value to *1316 the secured creditor or the secured creditor consents. And creditors' rights on claims secured by the debtor's primary residence are expressly prohibited from being modified. Further, Chapter 13 plans last no longer than five years. So, likely because Chapter 13 bankruptcy is particularly ill-suited for most debtors who have long-term mortgage debt due to the inability to either modify such debt or repay it on an accelerated five-year schedule, Debtor chose not to address the Credit Union's mortgage in her plan. The simplest conclusion then is that Debtor's plan, by not addressing the Credit Union's mortgage, did not "provide for" it.
The goal of a Chapter 13 bankruptcy is to aggregate the debtor's outstanding debts, create a repayment plan for those debts, and prescribe the order, manner, and terms of repayment. The plan is proposed by the debtor, is subject to approval by certain classes of creditors, and must ultimately be confirmed by the bankruptcy court under a specific set of criteria.
See
The Chapter 13 plan takes stock of the allowed claims of both secured and unsecured creditors, ranks creditors in order of their priority, and creates a repayment plan to be administered by an assigned trustee.
See
Generally, under these criteria, a Chapter 13 plan may "modify the rights of holders of secured claims" or simply leave them "unaffected," thus allowing the terms of the original loan agreements to govern the debtor's obligations.
See
The antimodification provision in § 1322(b)(2) goes even further and expressly prohibits a plan from modifying "the rights of holders of ... a claim secured only by a security interest in real property that is the debtor's principal residence." The Supreme Court has clarified that the "rights" protected by § 1322(b)(2)"are reflected in the relevant mortgage instruments" and are governed by state law.
Nobelman v. Am. Sav. Bank
,
Also, some debts may mature after the three-to-five-year target date for the completion of all payments under the plan. The Code gives debtors a choice to either repay such long-term debt "inside" the plan-with the trustee acting as disbursing agent-or "outside" the plan, with payments coming directly from the debtor, often under the terms of the original debt instruments.
If the debtor elects to leave the rights of long-term lenders "unaffected" by the plan under § 1322(b)(2), then she continues to make the required payments outside the plan directly to the lender rather than through the bankruptcy trustee. If the debtor chooses this path, the plan need not address (or even mention) the long-term debt and would not include the value of that debt in its calculation of plan payments. Obligations handled like this are governed by the preexisting contractual terms, not by any provisions of the plan. Thus, the debt retains its original maturity date and may not be extinguished until the debtor's obligations are fully met. 6
Importantly, even a long-term debt incorporated into the plan under § 1322(b)(5) may not be discharged once the debtor finishes making payments under the plan.
In light of Debtor's successful efforts to structure her plan to permit direct payments to the Credit Union without any modification of the repayment terms, the most obvious conclusion regarding the Credit Union's mortgage is that it was left unaltered by Debtor's bankruptcy. Because the plan did not propose any modification-likely because Debtor could not do so under § 1322(b)(2) -or stipulate to any terms about the Credit Union's mortgage, the mortgage must, by default, have remained governed by the original loan instruments, *1318 and thus was not "provided for" by the plan.
Debtor's contention is that, by mentioning that the Credit Union's mortgage will be paid directly, the mortgage was provided for by the plan and covered by the discharge-despite the fact that the plan never supplies any terms to govern the mortgage's repayment. Debtor's paradoxical position is that by saying essentially nothing about the mortgage's repayment, the plan still somehow "provided for" the mortgage and discharged it. In essence, Debtor's argument amounts to wanting something for nothing, after Debtor expressly stated that she wanted nothing. Here, that result is plainly not allowed by the Bankruptcy Code. 8
3. Other courts' treatment of this issue
Although no binding authority has directly addressed the issue of what it means for a claim to be "provided for" by a plan under § 1328(a), a number of courts that have broached this issue have reached the same conclusion we do. In
Mayflower Capital Company v. Huyck (In re Huyck )
, a mortgage that was in default when the debtors filed for bankruptcy was at issue.
The bankruptcy court in
In re Hunt
, No. 14-02212-5-DMW,
Although the case did not directly address the meaning of "provided for" under § 1328(a), the district court in Bank of America, N.A. v. Dominguez (In re Dominguez) , No. 1:12-CV-24074-RSR (S.D. Fla. Sept. 24, 2013) (Rosenbaum, J.) analyzed the meaning of "provided for" under § 1322(b)(5) and came to the same conclusion. In Dominguez , the plan specified that the debtor's mortgage would "be paid directly" rather than through the trustee. Slip op. at 7. The plan made no other mention of the mortgage, did not detail the monthly mortgage payment amounts, and did not set a schedule under which payments would be made. Id . Because the debtor made her mortgage payments "directly to Bank of America on a schedule governed by the original mortgage documents, not by the Plan," the court concluded that the mortgage was "not governed by the chapter 13 plan." Id. By explicitly stating that the mortgage payments would be paid outside the plan, the debtor:
clarified to the Bankruptcy Court that she intended to keep current on her first mortgage payments, and she did not intend for those payments to be subject to the oversight of the Bankruptcy Court or otherwise governed by the Bankruptcy Code. The Plan's mere reference to the first mortgage as a claim that is not governed by the Plan does not, as Bank of America suggests, somehow accomplish the exact opposite of the language and make it a claim governed by the Plan for purposes of § 1322(b)(5). In the same way that § 1322(b)(5) does not apply to a claim that is not referenced on the face of a chapter 13 plan at all, it does not govern a claim listed on a chapter 13 plan only for the purposes of identifying it as a claim not subject to the plan.
Id. at 12 (emphasis in original). So, like here, the court concluded that the plan did not "provide for" the creditor's claim by merely mentioning that it would be paid outside the plan. Id.
Lawrence Tractor Company v. Gregory (In re Gregory )
,
Gregory
, however, set forth its expansive definition to address a situation much different than the one before us. First, unlike this case where the plan failed to address the repayment terms for the Credit Union's mortgage, the plan in
Gregory
did stipulate to terms for the unsecured creditor's debt: it proposed to pay nothing. This put the unsecured creditor on notice that the plan would affect his rights.
B. Whether Discharging the Credit Union's Mortgage Would Violate the Antimodification Provision in § 1322(b)(2)
Even if the plan were somehow construed as "provid[ing] for" the Credit Union's mortgage, there could still be no discharge of the mortgage given the antimodification provision in § 1322(b)(2). The antimodification provision prohibits a plan from modifying "the rights of [a] holder[ ] of ... a claim secured only by a security interest in real property that is the debtor's principal residence." Clearly, a discharge of a debtor's obligations under his residential mortgage would dramatically modify the rights of the holder of that mortgage. Nonetheless, Debtor attempts to evade the clear prohibition of the antimodification provision based on two arguments. First, Debtor contends that the Credit Union consented to the modification by having notice of it and failing to object. Second, Debtor asserts that discharge is not a modification because it is a statutory injunction and only removes in personam liability. Neither argument is persuasive.
As to the first argument-that the Credit Union consented to a modification that discharged the mortgage-although it is true that the Credit Union did not object, the Credit Union failed to object because the plan did not contain any modification that would be objectionable. "It is the debtor's obligation ... to specify as accurately as possible the amounts which it intends to pay the creditors."
Fawcett
,
Debtor's argument that discharge is not a modification is also unpersuasive. According to Debtor, upon discharge, the Credit Union could still foreclose on the property when and if the Debtor ceased making payments, but it could not seek a deficiency judgment
*1321
against Debtor based on the difference between the loan balance and the value of the foreclosed property. Removal of the Credit Union's right to pursue
in personam
liability against Debtor, however, would necessarily modify the Credit Union's rights because it strips the Credit Union of a right provided by the original loan instruments. A creditor's rights "protected from modification by § 1322(b)(2)" are the rights under the original loan instruments as defined by state law.
Nobelman
, 508 U.S. at 329-30,
Finally, Debtor argues that because discharge is provided as a statutory remedy for completing a Chapter 13 plan,
see
Indeed, in
Nobelman
, the Supreme Court refused "to give effect to [the] valuation and bifurcation of secured claims" provided to a Chapter 13 plan by § 506(a) because doing so "would require a modification of the rights of the holder of the security interest" prohibited by the antimodification provision. 508 U.S. at 332,
C. Whether the Credit Union's Failure to File a Proof of Claim Discharged the Mortgage
Regardless of whether the plan "provided for" the Credit Union's first mortgage, Debtor argues that the mortgage was discharged because the Credit Union failed to file a proof of claim for it.
See
But, because Debtor raised this issue for the first time on appeal to the district court, she has waived it. "As a general rule," an issue raised for the first time on appeal will not be considered.
Blue Martini Kendall, LLC v. Miami Dade Cty.
,
Even if we were to consider this, the merits favor the Credit Union. In
Southtrust Bank of Alabama, N.A. v. Thomas (In re Thomas )
, we recognized that a secured creditor's lien survives even though the secured creditor failed to file a proof of claim.
CONCLUSION
A long-term debt with a post-plan maturity date is not "provided for" by a Chapter 13 plan under § 1328(a) if the plan only states that the debt will be paid outside the plan without setting terms for the debt's repayment. So, because the Credit Union's mortgage was not "provided for" by the plan under § 1328(a), it was not discharged. Even if the mortgage was "provided for," it still would not be discharged because discharge would violate § 1322(b)(2) 's antimodification provision. Finally, the issue of whether the Credit *1323 Union's failure to file a proof of claim discharged its mortgage was raised for the first time on appeal and thereby waived. Yet, even if we considered Debtor's argument, the Credit Union's failure to file a proof of claim did not discharge the mortgage.
Accordingly, we AFFIRM .
JILL PRYOR, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the judgment affirming the district court. I also join in Parts III.B and III.C. of the majority opinion. I do not join in Part III.A, however.
The majority opinion sets forth two alternative reasons for concluding that the bankruptcy court's discharge order did not discharge debtor Mildred Dukes's mortgage debt owed to creditor Suncoast Credit Union. In Part III.A. the majority explains that the debt was not "provided for by the plan" and thus not discharged.
Although these totals only add up to $5,666.60, the plan states that the grand total is $5,666.66.
Both parties also raised the issue of whether the Credit Union's mortgage was exempt from discharge as long-term debt under § 1322(b)(5).
See
Debtor also contends that the plan's terms setting forth the adequate protection payment amounts for the Credit Union show that the mortgage was "provided for." Adequate protection payments, however, have nothing to do with the repayment of a debt. Adequate protection payments are required by the Bankruptcy Code to protect the value of secured creditors' collateral while the creditor is unable to enforce a lien on the debtor's property during the bankruptcy.
See
In Nobelman , those rights included:
the right to repayment of the principal in monthly installments over a fixed term at specified adjustable rates of interest, the right to retain the lien until the debt is paid off, the right to accelerate the loan upon default and to proceed against petitioners' residence by foreclosure and public sale, and the right to bring an action to recover any deficiency remaining after foreclosure.
508 U.S. at 329,
notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any ... secured claim on which the last payment is due after the date on which the final payment under the plan is due.
One reason a debtor might choose to make payments directly to a creditor rather than rolling payments into the bankruptcy process is to avoid trustee's fees, which are a percentage of the total amount owed by the debtor over the plan period. As discussed above, a home mortgage loan cannot be modified in bankruptcy, so there would be no benefit in dealing with the debt through the bankruptcy process. Thus, it is generally in the debtor's best interest to pay her mortgage outside the Chapter 13 plan rather than pull it into the plan and owe fees on payments she is obligated to make either way. Nothing in the Code requires such debts to be handled through the bankruptcy process.
(a) Subject to subsection (d), as soon as practicable after completion by the debtor of all payments under the plan, ... the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt-(1) provided for under section 1322(b)(5).
This conclusion is reinforced by the fact that, if the plan's statement that Debtor would continue to make payments outside the plan "rather than through the Trustee" did somehow govern the Credit Union's mortgage, then presumably the payments would stay on the same terms as they were under the original loan documents because the plan provided no other repayment terms. If that is the case, then Debtor likely was not entitled to discharge because she defaulted on her payments under the original loan terms.
See
Applying Texas law, the Supreme Court specifically noted that this included "the right to bring an action to recover any deficiency remaining after foreclosure."
Nobelman
, 508 U.S. at 329,
Reference
- Full Case Name
- In RE: Mildred M. DUKES, Debtor. Mildred M. Dukes, Plaintiff-Appellant, v. Suncoast Credit Union, Defendant-Appellee.
- Cited By
- 10 cases
- Status
- Published