2:06-bk-52826•Timothy Alan Robinson and Katheryn Mary Robinson
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION In re : Case No. 06-52826 Timothy Alan Robinson Katheryn Mary Robinson : Chapter 13 : Judge Preston Debtor(s) MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION BY AMERICREDIT FINANCIAL SERVICES This cause came on for hearing on September 28, 2006, to consider confirmation of the Debtors’ Amended Chapter l3 Plan (Doc. #20), and the Objection thereto by AmeriCredit Financial Services (hereinafter “AmeriCredit”), as supplemented (Doc. #11, 18). This Court has jurisdiction over this matter pursuant to 28 U.S.C. §1334 and the General Order of Reference entered in this District. This matter is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(L). The facts germane to resolution of this dispute are undisputed and may be summarized as follows: On or about March 28, 2005, Debtor This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: December 11, 2006 ____________________________________________________________ Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 1 of 7
1 According to AmeriCredit, at the time of filing of the case, the prime rate was 8% and therefore AmeriCredit is entitled to interest of 11%. 2 Katheryn Fair, now known as Katheryn Robinson, purchased a 2005 Honda Civic for her personal, family and household use, financing the sum of approximately $19,840.00. On June 10, 2006, (less than 9l0 days after purchase of the vehicle) Katheryn and her spouse Timothy Robinson (collectively the “Debtors”) filed a petition for relief under Chapter l3 of the Bankruptcy Code. In due course, the Debtors filed an Amended Chapter l3 Plan, utilizing the form plan preferred in the Columbus Division of the Southern District of Ohio. The Debtors included the debt to AmeriCredit in the section titled “Claims to which 11 U.S.C. § 506 valuation is not applicable,” recognizing the AmeriCredit debt as a claim secured by a purchase money security interest in a motor vehicle for which the debt was incurred within 910 days of the Debtors’ petition. The Plan provided that the estimated claim of AmeriCredit (in the amount of $l8,698.00) would be paid without interest, in equal monthly installments over the life of the Plan. AmeriCredit objected to confirmation of the Debtors’ proposed plan, on the basis that the Supreme Court decision of Till v. SCS Credit Corporation, 541 U.S. 465, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004), mandates payment of interest to secured creditors at the prime rate of interest plus a risk factor. 1 The Debtors countered AmeriCredit’s objection, pointing to the provision of § 1325(a) of the Bankruptcy Code, known by some as the “Hanging Paragraph”. Debtors argue that by virtue of the Hanging Paragraph, § 506 of the Code does not apply to claims of the kind described in the Hanging Paragraph; therefore, such claims are not Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 2 of 7
2 The Court supplies this word which was presumably inadvertently omitted by the drafters of the statute. 3 “allowed secured claims” and are not entitled to interest pursuant to the provisions of § 506 and 1325(a)(5). The issues are, first, what is an “allowed secured claim” and second, what is the impact of the Hanging Paragraph on treatment of allowed secured claims as specified by § 1325(a)(5). The Court has considered the cases of In re Wampler, 345 B.R. 730 (Bankr. D. Kan. 2006) and In re Carver, 338 B.R. 521 (Bankr. S.D. Ga. 2006). However, the Court finds more persuasive the line of cases which represent the majority on this issue, including In re DeSardi, 340 B.R. 790 (Bankr. S.D. Tex. 2006), and In re Brown, 339 B.R. 818 (Bankr. S.D. Ga. 2006). The Hanging Paragraph of Section 1325(a) states in pertinent part as follows: For purposes of paragraph (5), § 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is subject of the claim, the debt was incurred within 9l0-day [period] 2 preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle...acquired for the personal use of the debtor.... (bracketed material added). It is this provision, the Debtors assert, that essentially diffuses AmeriCredit’s allowed secured claim because § 506 defines the term “allowed secured claim”, the Hanging Paragraph prohibits application of § 506 and therefore the provisions for payment of allowed secured claims under § 1325(a)(5) do not apply. However, Debtors misinterpret § 506. Section 506 is not a definitional provision; section 506 merely provides a mechanism for bifurcating an under-secured claim into secured and unsecured components. The Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 3 of 7
3 This is bolstered by the language utilized in § 506, which lacks language typically found in other provisions of the Bankruptcy Code in which definitions are found. See, e.g. 28 U.S.C. §§102, 547, 548. 4 provision solely focuses on the determination of value of the secured claim and the effect thereof. 3 Subsection (a) allows for judicial determination of the value of a creditor’s interest in a debtor’s property. Subsection (d) implements the bifurcation that is articulated in subsection (a), by voiding the lien of the under- secured creditor to the extent under-secured. See 4 COLLIER ON BANKRUPTCY ¶¶ 506.01, 506.03 (15 th ed. rev. 2005). Admittedly, the Bankruptcy Code does not define the term “allowed secured claim”, or the term “secured claim”. It does, however, define the term “claim” as “right to payment, whether... secured, or unsecured ....(emphasis added.)” Section 502 of the Bankruptcy Code addresses allowance of claims, and states that claims are allowed except to the extent that the amount sought by the claimant falls within certain parameters described in that section, which are not relevant here. The section does not purport to create a distinction between allowance of secured and unsecured claims. It is well settled that the validity of claims and whether a claim is secured is governed by state law. Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993); In re Montoya, 341 B.R. 41 (Bankr. D. Utah 2006). There has been no objection to AmeriCredit’s claim or to the validity of its security interest or lien. Thus, AmeriCredit’s claim remains an “allowed secured claim” but is protected from the bifurcation procedure allowed by § 506. Since AmeriCredit retains its Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 4 of 7
5 allowed secured claim, it is entitled to treatment set forth in § 1325(a)(5). The Court’s conclusion as to the effect of the Hanging Paragraph in this context is further supported when one resorts to the language of that provision. Had Congress wanted to effect a different result, it easily could have done so, by specifying such in the Hanging Paragraph or elsewhere, as it did when addressing § 506; it is telling that the drafters of the Hanging Paragraph did not write “§ 506 and § 1325(a)(5)shall not apply to a claim described in that paragraph ...” but rather wrote “For purposes of paragraph (5) [of §1325(a)], § 506 shall not apply to a claim described in that paragraph ...” recognizing that the courts will still apply § 1325(a)(5) when evaluating a debtor’s treatment of secured claims in his or her Chapter l3 plan. To give meaning to this phrase, the Court must consider § 1325(a)(5) when contemplating confirmation. To hold otherwise renders this introductory phrase meaningless, in violation of basic tenets of statutory construction. See, In re Montoya, 341 B.R. at 44. That being the case, § 1325(a)(5) of the Bankruptcy Code remains applicable to allowed secured claims. With respect to treatment of allowed secured claims addressed in a debtor’s proposed plan, § 1325(a)(5)(B) provides that the Court shall confirm the plan if it provides, among other things, that the value, as of the effective date of the plan, of property to be distributed under the plan on account of the secured claim is not less than the allowed amount of such claim. The Supreme Court in Till recognized that this provision Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 5 of 7
6 “requires bankruptcy courts to insure that the property to be distributed to a particular secured creditor over the life of a bankruptcy plan has a total ‘value as of the effective date of the plan,’ that equals or exceeds the value of the creditor’s allowed secured claim....” Till, 541 U.S. at 474, 124 S.Ct. at 1958, 158 L.Ed. 2d at 797. The Supreme Court, as has all lower courts, recognized that this requires payment of appropriate rate of interest. Till decided that the appropriate rate of interest is the prime rate of interest plus a risk factor. The Hanging Paragraph of § 1325 does not emasculate this application of § 1325(a)(5)(B). The Court notes, however, that the amendments wrought by BAPCPA do not prohibit modification of the claims described in the Hanging Paragraph. Neither the Hanging Paragraph nor any other provision of BAPCPA dilute the application of § 1322(b)(2) which allows modification of the rights of holders of secured claims as well as other claimants. Therefore, although the Debtors may not bifurcate the claim of AmeriCredit into secured and unsecured components, the Debtors may modify the interest rate to be paid to AmeriCredit, subject to the mandate of Till. The parties did not present any evidence at the confirmation hearing regarding the risk factors in this case, limiting their argument to the effect of the Hanging Paragraph; therefore, at this time, the Court cannot determine the specific interest rate payable to AmeriCredit for inclusion in the Debtors’ plan. A separate order will be in entered in accordance with the foregoing. Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 6 of 7
IT IS SO ORDERED. Copies to: Timothy A. Robinson, Katheryn M. Robinson, 1673 Churchill Downs Road, Apt. A, Newark, OH 43055 James E. Nobile, Attorney for Debtors (Electronic Service) Brian D. Wood, Attorney for Creditor (Electronic Service) Frank M. Pees, Chapter 13 Trustee (Electronic Service) Office of the U.S. Trustee (Electronic Service) # # # Case 2:06-bk-52826 Doc 25 Filed 12/11/06 Entered 12/12/06 07:57:46 Desc Main Document Page 7 of 7
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