Bobby Dwayne Hull and Shelley Jean Hull

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Case 1:06-bk-12431 Doc 34 _ Filed 03/05/07 Entered 03/06/07 15:24:07 Desc Main
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This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southem District of Ohio.

sided Ladnver——

: March 2007 Burton Perlman
Dated 05, United States Bankruptcy Judge

IT SS SO ORDERED.

UN TED STATES BANKRUPICY OOURT
SOUTHERN DF SITRICr OF GHO
VESTERN Di VI SION

In Re Case No. 06- 12431

Bobby Duane Hill
Shelley Jean Hull

Chapter 13

ee a a SS

Debt or Judge Burton Perl man

ORDER SUSTAIN NG OBJ ECITON TO AMENDED PLAN

In this Chapter 13 case, debtors presented an Anended Plan.
The plan dealt wth ABN AMO Mrtgage Group, Inc. (hereafter
“creditor”) by the follow ng | anguage:

“Debtors own real estate located at 800 Richey
Road in Felicity, Ohio; however, debtors
reside in a nobile hone. Debtors own the
nobile hone free and clear. ABN AMRO holds a
nortgage against said non-residential real
estate. Debtors wll file a notion to avoid
the nortgage to the extent it is unsecured
(cramdown), and the bifurcated claim of ABN
AWMRO shall be paid in accordance wth this
pl an. ”

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By 	this 	language, 	debtors 	intend 	to 	treat 	creditor’s 	claim 	as
unsecured to the extent that it applies to the mobile home on the
property, but as secured as to the real estate upon which it sits.
Creditor 	has 	filed 	a 	Proof 	of 	Claim 	in 	the 	case 	in 	the 	amount 	of
$72,453.91, and it asserts that the entire amount is secured.
Creditor 	filed 	an 	objection 	to 	confirmation, 	and 	the 	matter
came 	on 	for 	hearing 	before 	the 	Court. 	The 	pertinent 	facts 	are
simple 	and 	not 	in 	dispute. 	Debtors 	reside 	at 	800 	Richey 	Road,
Felicity, 	Ohio 	in 	a 	mobile 	home 	which 	they 	own 	and 	use 	as 	a
residence, 	which 	sits 	on 	real 	estate 	(together 	these 	are 	the
“subject 	property”) 	which 	they 	own. 	At 	the 	hearing, 	a 	title
document for the mobile home was presented. 	It does not show any
lien 	of 	creditor, 	and 	obviously 	because 	the 	title 	was 	present 	in
the 	Court, 	it 	had 	not 	been 	surrendered 	to 	the 	county 	auditor.
There was an underlying assumption by both parties at the hearing
on creditor’s objection that creditor holds a conventional mortgage
on the subject property.
The 	sole 	question 	presented 	at 	the 	hearing 	was 	whether
surrender of title to the mobile home pursuant to Ohio Revised Code
§4505.11(H)(1) is the only way in which a mobile home can in Ohio
become 	part 	of 	the 	real 	estate. 	At 	the 	hearing 	counsel 	for 	the
Chapter 13 Trustee argued on behalf of the trustee and debtors that
the decision of the Court, In re Cluxton(Bankr. S.D. Ohio Case No.
02-17602, 	Feb. 	20, 	2004), 	affirmed 	327 	B.R. 	612 	(6th) 	Cir. 	BAP
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2005) mandates this conclusion. 	After careful consideration this
Court holds that such a conclusion is erroneous.
The Cluxton case, like that before us, involved a mobile home,
and the question was whether that home was part of the creditor’s
collateral. 	In 	Cluxton, 	the 	Court 	after 	an 	evidentiary 	hearing
reached 	the 	conclusion 	that 	the 	evidence 	showed 	that 	the 	mobile
home 	should 	be 	regarded 	as 	a 	fixture, 	and 	pursuant 	to 	the 	common
law 	of 	Ohio, 	therefore 	part 	of 	the 	real 	estate, 	part 	of 	the
creditor’s collateral, and subject to the limitation imposed by 11
U.S.C.§1322(b). 	The 	Court 	then 	held 	as 	an 	alternative 	basis 	for
decision 	that 	surrender 	of 	the 	title 	to 	the 	auditor 	led 	to 	the
conclusion that the mobile home was to be regarded as part of the
real estate.
It is the position of the Chapter 13 Trustee and debtors, that
the 	Court 	in 	Cluxton 	then 	reached 	the 	conclusion 	that 	O.R.C.
§4505.11(H)(1) 	when 	considered 	in 	conjunction 	with 	O.R.C.
§4503.06(B)(1)(a)(b), abrogates the common law, and only if title
was surrendered could a mobile home be regarded as part of the real
estate. 	We disagree.
Before 	reaching 	his 	conclusion 	in 	Cluxton, 	Judge 	Hopkins
observed:
“The 	question 	of 	whether 	a 	statute 	abrogates
the 	common 	law 	is 	a 	matter 	of 	statutory
interpretation. 	The 	governing 	rule 	of
construction 	has 	been 	articulated 	by 	the
Supreme Court of Ohio:
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“Courts 	may 	not 	presume 	that 	the
statute was intended to abrogate the
common law. 	Such an intention must
be 	expressly 	declared 	by 	the
legislature 	or 	necessarily 	implied
in the language of the statute.”
LaCourse 	v. 	Fleitz, 	28 	Ohio 	St. 	3d
209, 212 (1986) (emphasis added).
Ohio Rev. Code §4503.06(b)(1) and (2) provide:
(B) 	The owner of a manufactured or mobile home shall pay
real property taxes if either of the following applies:
(1) 	The 	manufactured 	or 	mobile 	home 	acquired
situs 	in 	the 	state 	or 	ownership 	in 	the 	home
was 	transferred 	on 	or 	after 	January 	1, 	2000,
and all of the following apply:
(a) 	The 	home 	is 	affixed 	to 	a
permanent 	foundation 	as 	defined 	in
division 	(C)(5) 	of 	section 	3781.06
of the Revised Code;
(b) The home is located on land that
is owned by the owner of the home;
(c) 	The 	certificate 	of 	title 	has
been inactivated by the clerk of the
court 	of 	common 	pleas 	that 	issued
it, 	pursuant 	to 	division 	(H) 	of
section 4505.11 of the Revised Code.
(2) 	The 	manufactured 	or 	mobile 	home 	acquired
situs 	in 	the 	state 	or 	ownership 	in 	the 	home
was 	transferred 	before 	January 	1, 	2000, 	and
all of the following apply:
(a) 	The 	home 	is 	affixed 	to 	a
permanent 	foundation 	as 	defined 	in
division 	(C)(5) 	of 	section 	3781.06
of the Revised Code
(b) 	The 	home 	is 	located 	on 	land
that 	is 	owned 	by 	the 	owner 	of 	the
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home;
(c) 	The 	owner 	of 	the 	home 	has
elected 	to 	have 	the 	home 	taxed 	as
real 	property 	and, 	pursuant 	to
section 4505.11 of the Revised Code,
has 	surrendered 	the 	certificate 	of
title 	to 	the 	auditor 	of 	the 	county
containing 	the 	taxing 	district 	in
which 	the 	home 	has 	its 	situs,
together 	with 	proof 	that 	all 	taxes
have been paid;
(d) 	The 	county 	auditor 	has 	placed
the 	home 	on 	the 	real 	property 	tax
list 	and 	delivered 	the 	certificate
of 	title 	to 	the 	clerk 	of 	the 	court
of 	common 	pleas 	that 	issued 	it 	and
the 	clerk 	has 	inactivated 	the
certificate.
The other statute to which the trustee and debtors refer, Ohio
Rev. Code §4505.11(H)(1), provides in relevant part:
[A]n 	owner 	of 	a 	manufactured 	or 	mobile
home 	that 	will 	be 	taxed 	as 	real 	property
pursuant to division (B) of section 4503.06 of
the 	Revised 	Code 	shall 	surrender 	the
certificate 	of 	title 	to 	the 	auditor 	of 	the
county containing the taxing district in which
the home is located.
The 	outcome 	argued 	for 	by 	the 	Trustee 	and 	debtors 	is 	neither
expressly 	stated 	nor 	necessarily 	implied 	in 	these 	Ohio 	statutes.
Indeed, a contrary conclusion, that the common law of fixtures is
still valid in Ohio, and personalty which is a fixture becomes part
of the real estate, is to be there perceived.
In reaching this conclusion, we observe that Chapter 4503 of
the Ohio Revised Code deals with Licensing of Motor Vehicles, while
Chapter 	4505 	is 	entitled 	Certificate 	of 	Motor 	Vehicle 	Title 	Law.
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Neither 	of 	the 	Ohio 	statutes 	which 	are 	relevant 	here 	deals
expressly 	with 	the 	matter 	of 	title 	to 	real 	estate 	including 	or
excluding a mobile home which is in place on it.
It 	is 	instructive 	to 	consider 	the 	case 	In 	re 	Kroskie, 	315
F.3rd 644 (6th Cir. 2003), 	which dealt with a question similar to
that before this Court, but under the law of the state of Michigan.
In 	Kroskie 	the 	Court 	reached 	the 	conclusion 	adverse 	to 	the
creditor, holding that title to the mobile home was not part of the
creditor’s 	collateral 	because 	the 	mortgage 	had 	not 	been 	recorded
with the Register of Deeds. 	The fundamental difference between the
situation 	in 	Michigan 	and 	that 	in 	Ohio, 	is 	that 	Michigan 	had
enacted 	the 	Mobile 	Home 	Commission 	Act 	which 	expressly 	provided
that a security interest in a mobile home could only be perfected
by 	filing 	an 	application 	with 	the 	Mobile 	Home 	Commission. 	That
fulfills 	the 	requirement 	that 	the 	“intention” 	of 	the 	legislative
“must 	be 	expressly 	declared” 	or 	“necessarily 	implied,” 	that 	the
statute was intended to abrogate the common law of Michigan. 	The
same 	cannot 	be 	said 	about 	the 	relevant 	statutes 	in 	Ohio. 	In 	Ohio
the statutes contain no clear indication of an intent to abrogate
the common law of fixtures.
The Court therefore concludes that the sole question raised at
the hearing, whether surrender of the title to a mobile home to the
auditor is necessary in order that the mobile home be regarded as
part 	of 	the 	realty, 	must 	be 	answered 	in 	the 	negative. 	This 	means
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that 	the 	common 	law 	of 	fixtures 	in 	Ohio 	is 	still 	viable. 	This
Court accepts the exposition of that law set forth at pp 3 to 5 of
the decision of the Bankruptcy Court in Cluxton, supra.
The 	clerk 	will 	set 	an 	evidentiary 	hearing 	on 	the 	creditor’s
objection, for the purpose of determining whether the manufactured
home in question is part of the real estate, and thus part of the
creditor’s collateral, and subject to 11 U.S.C. §1322(b)(2).
SO ORDERED.
Copies to:
Bobby Dwayne Hull
P.O. Box 152
Felicity, OH 45120
Shelley Jean Hull
P.O. Box 152
Felicity, OH 45120
L. Joshua Davidson, Esq.
8035 Hosbrook Road Ste 200
Cincinnati, OH 45236
Nathan L. Swehla
120 E. Fourth Street, Ste. 800
P.O. Box 5480
Cincinnati, OH 45202
Margaret A. Burks, Trustee
36 E. Fourth Street, Suite 900
Cincinnati, OH 45202
Office of the U.S. Trustee
Suite 2030
36 E. Seventh Street, Ste. 2050
Cincinnati, OH 45202
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