Kenneth L. Davis and Tammy R. Davis

OCR transcription for search; preserved printed pages are authoritative

Case 1:06-bk-13650 Doc56 Filed 05/24/07 Entered 05/25/07 15:09:11 Desc Main
Document Page 1of3

This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southem District of Ohio.

IT SS SO ORDERED.

di

Dated: May 24, 2007 Wvincant Aug, Jr.
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT
WESTERN DIVISION
In re
Kenneth L. and Tammy R. Davis, Case No. 06-13650
Debtors Chapter 13 (Judge Aug)

ORDER GRANTING OBJECTION TO CONFIRMATION

This matter is before the Court on the Debtors’ amended plan (Doc. 28), Green
Tree Servicing, LLC’s objection to confirmation (Doc. 18), the Chapter 13 Trustee’s
memorandum (Doc. 47), the Debtors’ memoranda (Docs. 49, 52) and Green Tree’s
memorandum (Doc. 53). A hearing was held on April 12, 2007.

The issue before the Court is whether, pursuant to the antimodification provision
of 11 U.S.C. §1322(b)(2), the newly added definition by the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 (““BAPCPA”’) of a “debtor’s principal
residence” in 11 U.S.C. §101(13A) prohibits a debtor from modifying a secured claim
that is secured by a lien on the debtor’s mobile home and a mortgage on the underlying

real property.

The following facts are not in dispute. Green Tree has a perfected mortgage on the
Debtors’ real property. Green Tree also has a perfected security interest on the Debtors’
mobile home, which is located on the real property. The title to the mobile home has not
been surrendered to the county auditor, thus under Ohio Revised Code §4504.11(H)(1),
the mobile home has not become part of the real property for taxing purposes.

Case 1:06-bk-13650 Doc56 Filed 05/24/07 Entered 05/25/07 15:09:11 Desc Main
Document Page 2 of 3

The antimodification provision of §1322(b)(2), both before and after the enactment
of BAPCPA, states that a plan may “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.”

Prior to the enactment of BAPCPA, the bankruptcy courts in Ohio could use two
tests to determine whether a mobile home was covered by the antimodification provision
of §1322(b)(2). Under the first test, the court would determine whether the certificate of
title to the mobile home had been turned over to the county auditor under Ohio Revised
Code §4505.11(H)(1). If so, the mobile home was considered to be part of the real
property (rather than being personal property) and, therefore, covered by the
antimodification provision. Under the second test, known as a traditional fixture analysis,
the court would consider physical annexation of the mobile home, use of the mobile
home, and parties’ intent. In re Cluxton, 327 B.R. 612 (B.A.P. 6th Cir. 2005).

BAPCPA did not change the language of §1322(b)(2). BAPCPA did add a new
definition in §101(13A) for a “debtor’s principal residence:”

(A) means a residential structure, including incidental
property without regard to whether that structure is attached to
the real property; and (B) includes an individual
condominium or cooperative unit, a mobile or manufactured
home, or trailer.

Green Tree contends that the new definition in §101(13A) brings the Debtors’
mobile home under the protective ambit of §1322(b)(2) whether or not the certificate of
title has been turned over to the county auditor and whether or not the mobile home has
been physically attached to the real property. We agree, in view of the rationale set forth
by the court in In re Shepherd, 354 B.R. 505 (Bankr. E.D. Tenn. 2006). Summarily
stated, we agree with the Jn re Shepherd decision that §101(13A) and §1322(b)(2) can not
be reconciled, that it is appropriate to consider the legislative history of this Code change,
and that the legislative history indicates that Congress intended to broaden the scope of
§1322(b)(2) by adding the new definition in §101(13A).' This rationale is further
supported by a principal of statutory construction that when there is an inconsistency
between two statutes, the later enactment prevails. Son v. Coal Equity, 122 Fed. Appx.
797, 800 (6th Cir. 2004).

1

Although we adopt the legal analysis of the Court in Jn re Shepherd set
forth on pages 509 through 512, we express no opinion as to that Court’s application of
the law to the facts of that case, where the creditor only had a lien on the debtor’s mobile
home because the debtor owned no real property.

Case 1:06-bk-13650 Doc56 Filed 05/24/07 Entered 05/25/07 15:09:11 Desc Main
Document Page 3 of 3

In the present case, because Green Tree has a perfected lien on both the real
property and the mobile home, we conclude that Green Tree has a claim secured only in
real property that is the Debtors’ principal residence, and therefore, that it is protected by
the antimodification provision of §1322(b)(2).’

Accordingly, we hereby GRANT Green Tree’s objection to confirmation.

The Debtors shall have 20 days in which to file an amended plan, or this case may
be dismissed without further notice or hearing.

IT IS SO ORDERED.

Copy to:
Debtor
Gregory Wetherall, Esq.
David Demers, Esq.
Chapter 13 Trustee
U.S. Trustee

# # #

2

It is no longer necessary or appropriate to perform either of the two tests
used by the Court prior to the enactment of BAPCPA.