FYI: Fla App Ct (5th DCA) Holds Default Date Outside SOL In Compl Avoided By Evidence That Defaults Continued

The District Court of Appeal of Florida, Fifth District ("5th DCA"), recently held that a foreclosure complaint was not time-barred despite the initial default occurring outside Florida's five-year statute of limitations, because the mortgagee both alleged and proved that the borrowers defaulted on every payment due from the date of the initial default.

 

In so ruling, the 5th DCA applied the standards set forth by the Florida Supreme Court in Bartram v. U.S. Bank Nat'l Ass'n, to conclude that the foreclosure action was not barred by the five-year statute of limitations under Fla. Stat. § 95.11(2)(c), because the mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations.

 

A copy of the opinion is available at:  Link to Opinion

 

In June 2014, a mortgagee filed a foreclosure action against the borrowers alleging a default of the March 1, 2009 payment and all subsequent payments due thereafter.  The borrowers filed an answer generally denying all allegations and raising the statute of limitations as an affirmative defense.

 

As you may recall, section 95.11(2)(c) of the Florida Statutes provides that an action to foreclose on a mortgage must be commenced within five years. 

 

The Florida Supreme Court recently provided guidance as to application of the statute of limitations where the initial default occurred outside the five-year window, by holding (i) that "with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage" and; (ii) that a mortgagee is "not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action, as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action."  Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)

At trial, the mortgagee introduced evidence reflecting that the borrowers failed to make any payments since the initial March 2009 default.  Accordingly, because defaults had occurred within the five years prior to filing the foreclosure complaint in June 2014, the trial court entered final judgment in favor of the mortgagee.  The borrowers appealed.

 

On appeal, borrowers argued that dismissal of the complaint under the five-year statute of limitations was required pursuant to the 5th DCA's decision in Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015). 

 

In Hicks, although the complaint alleged that the borrowers were in a continuing state of default, the parties proceeded to trial on stipulated facts that referenced only the initial default, which had occurred more than five years before the new foreclosure action had been filed.  Additionally, the mortgagee's counsel in Hicks confirmed that the sole determinative issue to resolve at trial was one of law — that the trial court supposedly erred when it failed to dismiss the foreclosure complaint with prejudice based on a default that occurred outside of the five-year statute of limitations period.  Hicks, 178 So. 3d at 958.  Accordingly, the 5th DCA in Hicks reversed the final judgment of foreclosure because it was based solely on a default that occurred outside of the five-year statute of limitations. Id. At 959.  See also, Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016) (reversing final judgment of foreclosure where the bank had proceeded atrial only as to the initial default, which was more than five years after the alleged payment default).

 

However, in this case, because the mortgagee both alleged and proved that defaults the borrowers failed to make any payments from March 2009 onward, and thus defaulted within the five years prior to filing its complaint,  the 5^th DCA held that the action was not barred by the statute of limitations . 

 

Accordingly, final judgment of foreclosure was affirmed in favor of the mortgagee.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 6th Cir BAP Holds BK Court Lacked Jurisdiction to Void Mortgage Lien Signed Before BK But Recorded During BK

The Bankruptcy Appellate Panel ("BAP") for U.S. Court of Appeals for the Sixth Circuit recently held that the bankruptcy court lacked subject matter jurisdiction under the Rooker-Feldman doctrine to void the foreclosure of a mortgage lien that was executed by the debtors before bankruptcy, but recorded while the automatic stay was in effect. 

 

In so ruling, the BAP held that the mortgage was effective upon signing, the pre-petition lien survived the bankruptcy, and the creditor's exercise of its in rem rights did not implicate the discharge order, and the bankruptcy court incorrectly applied the exception to the Rooker-Feldman doctrine recognized in In re Hamilton, 540 F.3d 367 (6th Cir. 2008). 

 

A copy of the opinion is available at:  Link to Opinion

 

The borrowers ("Debtors") obtained a home equity line of credit secured by a second mortgage containing the following language:  "The lien of this Mortgage will attach on the date this Mortgage is recorded." 

 

In March 2004, Debtors filed a chapter 7 petition and listed their debt owed to the mortgagee ("Mortgagee").  Unknown to Debtors, Mortgagee did not record the mortgage until June 2004, three months after Debtors filed bankruptcy and while the automatic stay was in effect.  Mortgagee did not seek an order to modify, lift, or annul the automatic stay.  Nor did any party seek to avoid the mortgage during the chapter 7 case.  Debtors received a discharge and the case was closed in August 2004.

 

In August 2005, Debtors reopened the case and successfully avoided two judgment liens.  The case was closed again in January 2006.  Subsequently, Mortgagee transferred its interest in the mortgage to creditor ("Creditor").  More than ten years after Debtors' first bankruptcy filing, in April 2014, Creditor filed a foreclosure proceeding. 

 

Creditor obtained a default judgment in August 2014.  To stop the foreclosure sale, one of the Debtors filed a chapter 13 petition and proposed a plan which stated that the lien at issue "shall be avoided pursuant to 11 U.S.C. § 522(f), or other applicable sections of the Bankruptcy Code."  In October 2014, Debtors filed an adversary complaint and requested relief under 11 U.S.C. § 544(a)(1) and (a)(3) to avoid the mortgage lien. 

 

On cross motions for summary judgment, the bankruptcy court held that under the terms of the mortgage, the lien was not effective until the mortgage was recorded.  Thus, the bankruptcy court concluded that Mortgagee did not have a security interest in the property before Debtors filed their chapter 7 petition, and therefore the Mortgagee was an unsecured creditor whose debt was discharged in bankruptcy.

 

In so ruling, the bankruptcy court also held that the state court's default judgment had no bearing on the validity of the discharge order and voided the foreclosure judgment.

 

On appeal, the dispositive issue was whether the bankruptcy court lacked subject matter jurisdiction to consider the claims in debtor's complaint on the basis of the Rooker-Feldman doctrine.

 

As you may recall, the Rooker-Feldman doctrine derives from two opinions issued by the Supreme Court of the United States, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983).  The doctrine bars lower federal courts from exercising appellate jurisdiction over final state-court judgments.  McCormick v. Braverman, 451 F.3d 382, 391-92 (6th Cir. 2006). 

 

The bankruptcy court held that the Rooker-Feldman doctrine did not apply based on the Sixth Circuit's decision in Hamilton, which recognized an exception to the Rooker-Feldman doctrine as applied to bankruptcy discharge orders.  In re Hamilton, 540 F.3d 367 (6th Cir. 2008).  In Hamilton, the Sixth Circuit held that while state courts have jurisdiction to construe a bankruptcy court's discharge order, they did not have jurisdiction to modify a discharge order to permit collection of a personal debt.  Id., 540 F.3d at 375.

 

The bankruptcy court considered the Hamilton exception along with the mortgage, and concluded that the mortgage lien never attached to the property.  Because the mortgage never attached, the bankruptcy court held that the underlying debt was unsecured and discharged through the chapter 7 discharge order. The bankruptcy court also held that the foreclosure judgment impermissibly modified the discharge order because it found the mortgage valid and secured a discharged unsecured debt.

 

The BAP disagreed with the bankruptcy court's reasoning.  In Hamilton, the bankruptcy discharged the debtor's personal liability for the debt and then the state court found the debtor personally liable for that same debt, which acted as a modification of the discharge order.  In this case, Creditor only sought in rem relief and did not pursue judgment against Debtors for personal liability on the debt.  Thus, BAP found that Hamilton was inapposite. 

 

Additionally, absent avoidance by the bankruptcy court, a valid lien survives and rides through bankruptcy unaffected.  See, e.g., Dewsnup v. Timm, 502 U.S. 410, 417-18, 112 S. Ct. 773, 778 (1992); Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 2154 (1991). 

 

In the BAP's view, both the automatic stay and the discharge order could have been implicated if the mortgage did not become effective as a lien against the property until after the chapter 7 petition date.  Thus, the date the mortgage became effective as a lien on the property was of vital importance to whether the Hamilton exception to the Rooker- Feldman doctrine applied in this case. 

 

If the lien evidenced by the mortgage was effective prior to the chapter 7 petition date, and was not avoided in the course of that bankruptcy case, then the mortgage would still exist as an in rem obligation even after the discharge order relieved Debtors of their personal liability on the underlying indebtedness.  And, because no personal liability would be implicated, no modification of the discharge order would be implicated through enforcement of that lien, and the Hamilton exception to the Rooker-Feldman doctrine would not apply.

 

Thus, the BAP turned to the mortgage, and Kentucky law applicable to mortgages, to determine whether the mortgage was effective prior to the chapter 7 petition date.

 

Under Kentucky law, the mortgage was binding as to Debtors as of the time they signed the mortgage.  First Commonwealth Bank of Prestonburg v. West, 55 S.W.3d 829, 835 (Ky. Ct. App. 2000) (a mortgage is a contract subject to normal rules of contract interpretation); In re Williams, 490 B.R. 236, 239 (Bankr. W.D. Ky. 2013) (an unrecorded mortgage is valid between the parties to the mortgage).  Moreover, "the lien of the mortgage … shall be superior to any liens … created or arising after recordation of the mortgage" even if the lender advances funds with "notice of a subsequently created lien."  Ky. Rev. Stat. § 382.385(3).

 

The bankruptcy court concluded, based on the language in the mortgage, that the parties did not intend on immediate attachment but intended attachment to occur at the time the mortgage was recorded.  As a result, the bankruptcy court held that the foreclosure judgment revived and secured a discharged debt, as opposed to merely enforcing existing valid in rem rights.

 

However, the BAP noted that the mortgage contained two provisions pertaining to the date on which the mortgage lien, securing a line of credit, would be effected.  The "Description of Security" section suggested that the mortgage was effected on signing.  The mortgage's "Priority of Advances" section, however, states that the lien of this mortgage will attach on the date this mortgage is recorded.  Analyzing the two provisions within the context of the entire instrument and under Kentucky law, the BAP concluded that the mortgage was effective as of the signing date for two reasons.

 

First, in the BAP's view, it was logical that the first provision expressed the intention that the mortgage was effective as to Debtors upon singing.  It was also logical that the second provision, for "Priority of Advances," expressed the intention that the mortgage lien became effective as to third party creditors upon recordation. 

 

More specifically, the BAP explained that the line of credit mortgage anticipated the advancement of funds to Debtor, with the mortgage being effective as to third parties acquiring liens against the property upon recordation – even if no funds were advanced as of the time of the signing of the mortgage and even as to funds advanced subsequent to the perfection of the later liens.  Thus, according to the BAP, the "Priority of Advances" section was intended to provide notice to third parties and establish the mortgage lien's priority.

 

The BAP concluded that the terms of the mortgage and Kentucky law established that the mortgage was binding at the time it was signed.  Because the state court judgment only foreclosed on a valid, pre-petition lien, there was no modification of the discharge order and the Hamilton exception did not apply.  Therefore, the BAP held that the Rooker-Feldman doctrine barred the bankruptcy court from any further jurisdiction to review the state court judgment. 

 

Accordingly, the BAP vacated the bankruptcy court's judgment, and remanded the case with instructions to dismiss the adversary proceeding for lack of subject matter jurisdiction.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 10th Cir Reverses Dismissal of Lawsuit on Financial Services to Marijuana Related Businesses

In a cautionary tale for financial institutions considering doing business with marijuana-related businesses (MRBs), the U.S. Court of Appeals for the Tenth Circuit cleared the way for a lawsuit by a credit union created to service legal marijuana businesses against the Federal Reserve Bank of Kansas City, but with a complicated caveat.

 

A copy of the opinion is available at:  Link to Opinion

 

The Federal Reserve Bank refused to grant the credit union a master account because, even though recreational marijuana is legal in Colorado, it is still illegal at the federal level and would violate the federal Controlled Substances Act (CSA).

 

The credit union sued the Federal Reserve Bank in federal court in Colorado seeking an injunction to force the Federal Reserve Bank to issue it a master account. The Federal Reserve Bank moved to dismiss the complaint and, in response the credit union filed an amended complaint asserting that it would serve MRBs only if authorized to do so by law. In response, the Federal Reserve Bank again moved to dismiss.

 

The trial court granted the Federal Reserve Bank's motion to dismiss, explaining that it did not accept the credit union's allegations that it would follow the law and that the court could not grant the injunction because "courts cannot use equitable powers to issue an order that would facilitate criminal activity."  The credit union appealed.

 

On the appeal, the Tenth Circuit vacated the trial court's ruling and remanded the case with instructions to dismiss the amended complaint without prejudice, leaving the credit union in a position to continue the lawsuit.  

 

However, this diminished the credit union's original purpose of serving MRBs because the credit union can now proceed on the allegation that it will serve MRBs only if authorized to do so by law, which the CSA still prevents. 

 

As you may know, most banks have refused to open accounts for the many MRBs in Colorado and other states that have legalized marijuana, which has resulted in a cash economy. This has led to public safety issues, difficulty in collecting taxes, regulating, and auditing such businesses, and a lack of access to the benefits business gain from working with established financial institutions. The state of Colorado and its governor encouraged the opening of the credit union to help address these issues. 

 

The credit union was approved pending its license from the Federal Reserve Bank for a master account, which is an account with the Federal Reserve for a depository institution that enables it to electronically transfer funds to and from other financial institutions.

 

Initially the credit union attempted to secure a correspondent relationship with another financial institution that already had a master account, but it was unsuccessful.

 

The credit union's application did not state that it would service MRBs but the Federal Reserve Bank heard from a third party that the credit union intended to do so. The Federal Reserve Bank conducted an examination and denied the credit union's request in part because the credit union intended to service MRBs.

 

The credit union's lawsuit sought an declaratory judgment that it is entitled to a master account and an injunction requiring the Reserve Bank to issue it one arguing that the Federal Reserve Bank does not have discretion under 12 U.S.C. § 248a to deny it one.

 

The Federal Reserve Bank disagreed, arguing that it has discretion to deny master-account applications, that the court cannot use its power to facilitate illegal activity in violation of the CSA, and that the credit union's state charter is preempted and void under the Supremacy Clause of the U.S. Constitution because it conflicts with the CSA.

 

On appeal in the Tenth Circuit, the three appellate court judges each reached a different conclusion and provided three separate opinions. The first judge would affirm the dismissal with prejudice. The second judge would vacate and remand with instructions to edemas the amended complaint without prejudice on prudential-ripeness grounds. The third judge would reverse the dismissal of the amended complaint. 

 

To resolve this impasse the appellate court ruled that two of the judge's rulings would be effectuated by remanding with instructions to dismiss the amended complaint without prejudice.

 

The first judge addressed the Reserve Bank's illegality argument, that by granting a master account to the credit union, the Reserve Bank would be fostering illegal activity. The credit union had responded in its brief that the MRBs it proposed to serve were not violating any laws because they were legal under state law and the state law had not been formally invalidated. The credit union abandoned that position at oral argument because, under the Supremacy Clause, when state law conflicts with federal law, the federal law prevails.

 

Thus, the first judge concluded that providing banking services to MRBs would facilitate activity that is prohibited by the CSA, which includes the manufacture, distribution, dispensing, or possessing controlled substances such as marijuana.  According to this judge, a master account from the Reserve Bank would "serve as a linchpin for the Credit Union's facilitation of illegal conduct."

 

The first judge rejected the credit union's reliance on federal memorandums and guidance for marijuana-banking related activities because they did not create a defense for violation of the CSA. The first judge also concluded that the credit union's allegations that it will follow federal law were conditional and thus illusory so that they were not owed the presumption of truth and, on a practical level, did not alleviate the judge's concern that granting a master account would facilitate illegal activity. Accordingly, the first judge stated that he would affirm the dismissal with prejudice.

 

The second judge concluded that the case should be dismissed on ripeness grounds. He reasoned that, once the credit union amended its complaint to state that it would only serve MRBs if doing so was legal, the credit union became "a fundamentally different entity" than the one that had applied for the master account so that its claim was not ripe for adjudication.

 

The second judge pointed out that, under the fitness prong of the ripeness analysis, the facts had not been sufficiently developed concerning whether the Reserve Bank would grant an application to the credit union if it agreed to serve MRBs only if doing so was legal, which was not a pleading defect but a hypothetical dispute. Under the hardship prong of the ripeness analysis, the second judge concluded that the potential hardship the credit union might suffer from the withholding of judicial review did not overcome the lack of ripeness of the dispute and pointed out that now that the credit union knew that servicing MRBs is illegal, it can choose whether to re-apply for a master account under those terms.

 

Accordingly, the second judge stated that he would dismiss the appeal as premature and remand to the district court to vacate the judgment and dismiss without prejudice.

 

The third judge found that the trial court's ruling was incorrect for two reasons: (i) the trial court should have presumed the credit union would follow the law as determined by the court, and (ii) the credit union promised to obey the law in its amended complaint. The third judge pointed out that the district court's interpretation of the credit union's promise to obey the law was skewed in that the court had assumed that the credit union was promising to obey its own understanding of the law, not the court's pronouncement of the law.

 

The third judge opined that this improperly discounted the credit union's stated intent to obey federal law and constituted a factual allegation that should have been interpreted in the credit union's favor at the motion to dismiss stage of the litigation.  The third judge noted that nothing in the amended complaint overcame the presumption that the credit union would obey the law.

 

Thus, the third judge concluded that the district court had misapplied the standard on the motion to dismiss and stated that he would reverse dismissal of the amended complaint.

 

The third judge further explained that he rejected the Federal Reserve Bank's contention that financial institutions do not have a right to a master account and that it has discretion not to grant a master account.  The judge based his opinion on the text of 12 U.S.C. § 248a(c)(2), the persuasive interpretations of it and the legislative history. The judge also rejected the Reserve Bank's obstacle preemption argument that the credit union's charter is an obstacle to Congress's goals under the CSA because, even if the credit union did not service MRBs, it could still service supporters of the legalization of marijuana, which would provide sufficient grounds to entitle the credit union to a master account and only partial obstacle preemption at best.

 

With three different opinions by each of the three judges on the panel, the Tenth Circuit accepted the resolution of two of the three judges and vacated the trial court's ruling on the motion to dismiss and remanded with instructions to dismiss the amended complaint without prejudice. 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 8th Cir Affirms Ruling in Favor of Servicers Due to Plaintiffs' Misrepresentations in Loan Mod Application

The U.S. Court of Appeals for the Eighth Circuit recently affirmed summary judgment against a former husband borrower and his ex-wife on their claims under the Missouri Merchandising Practices Act ("MMPA") and for tortious interference with contract.

 

In so ruling, the Court held that the foreclosure of the plaintiffs' home loan was justified due the husband's misrepresentation on the modification application that he, not his ex-wife  who was responsible for making the payments, was experiencing financial hardship and could not afford the loan payments.

 

A copy of the opinion is available at:  Link to Opinion

 

In 2006, the ex-wife wanted to refinance her home but did not have good enough credit to obtain a loan. The ex-husband agreed that he would take out a mortgage and buy the ex-wife's home, the ex-wife would make the mortgage payments, and the ex-husband would deed the house back to her when she paid off the loan.

 

The ex-wife defaulted in 2008, but the ex-husband convinced the loan servicer to modify the loan by falsely claiming the house was leased to the ex-wife's stepfather. She defaulted again in 2009.

 

The ex-husband agreed to a repayment plan then applied for a loan modification, which was approved in May of 2010. The modification was conditioned upon the truth of several sworn statements in an affidavit, including that he was experiencing financial hardship and was either in default or about to default. The ex-husband also represented in the affidavit that he did not reside in the home and also orally told the loan servicer's representatives that his ex-wife made the mortgage payments.

 

The loan modification never went into effect because the loan servicer made a mistake by "double-counting some interest that had been capitalized" such that the loan continued in default status.

 

The loan was service-transferred in May of 2011. Two years later, the new servicer contracted a sub-servicer to handle the loan, who foreclosed in August of 2013.

 

The former husband and wife then sued the servicer and the sub-servicer for wrongful foreclosure, breach of contract, tortious interference, and deceptive and unfair trade practices under the MMPA.  The trial court granted summary judgment in the defendants' favor on all four counts, but the ex-husband and ex-wife appealed only the tortious interference and MMPA claims.

 

On appeal, the Eighth Circuit agreed with the trial court's reasoning that the defendants had the right to foreclose because the ex-husband "could not prove his loss was caused by any misconduct of the defendants, as opposed to his own 'noncompliance with the loan documents.'"

 

In addition, the Court held, because the foreclosure was proper, the tortious interference claim failed because the plaintiffs "could not establish the 'absence of justification' that is a necessary element of such a claim."

 

The Eighth Circuit explained that the modification agreement only amended and supplemented the existing loan documents if the ex-husband's representations were true. Thus, if his representations were false, "the agreement did not 'amend and supplement' anything, the existing version of the loan stayed in default, and foreclosure remained an authorized remedy."  More important, the Court reasoned, was the ex-husband's misrepresentation that he, not his ex-wife, was experiencing financial hardship and couldn't make the payments.

 

The Court rejected as irrelevant the ex-husband's argument that the servicer knew it was the ex-wife making the loan payments because "[n]othing [he] might have told [the servicer] about his arrangement with [his ex-wife] could have made it true when he said the default was the result of his own financial condition, or changed his clear statement into a representation about [his ex-wife's] financial condition." Likewise, it did not matter whether the ex-husband could not afford the mortgage on his own "because there is no evidence [he] would have made the payments if he had the money."

 

Because whether the debt would be paid depended only on the ex-wife's ability to pay, and the ex-husband's financial condition "had no bearing on the truthfulness of his representation about the reason for the default," the Eight Circuit held that the foreclosure was lawful and the plaintiffs' MMPA and tortious interference claims failed as a matter of law.

 

Accordingly, the summary judgment for defendants was affirmed.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia   |   Illinois   |   Indiana   |   Maryland   |   Massachusetts   |   Michigan   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC   |   Wisconsin

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates and webinar presentations are available on the internet, in searchable format, at:

 

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FYI: 6th Cir BAP Holds Foreclosure Deficiency Judgment May Be Avoided

The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court's ruling to the contrary.

 

A copy of the opinion is available at:  Link to Opinion

 

The debtor filed a chapter 13 bankruptcy, listing her residence in Ohio on her schedules with a value of $147,630.  She also claimed the residence as exempt homestead in the amount of $132,900, the maximum allowed pursuant to Ohio law.

 

On her Schedule D, the debtor listed judicial or judgment liens as well as a secured claim held by the County Treasurer for unpaid taxes as encumbrances on her homestead. The schedules did not reflect a mortgage on the home, but the debtor's statement of financial affairs reflected a completed foreclosure action.

 

The debtor converted her case to a Chapter 7 liquidation, and filed a motion to avoid the liens on the basis that they impaired her homestead exemption.

 

At the hearing on the motion, the bankruptcy court "expressed concern that Debtor willfully allowed real estate taxes … to remain unpaid to create an impairment to her homestead exemption [and] ordered Debtor to file a supplemental brief on the issue."

 

After briefing, the bankruptcy court entered an order granting in part and denying in part the debtor's motion to avoid the liens.  Instead of addressing the willful impairment issue that the bankruptcy court asked for briefs on, it held that under the § 522(f) the debtor's homestead exemption was impaired as to the two smaller liens, one for $1,889.72 and the other for $2,975, and avoided those liens.

 

The bankruptcy court, however, denied the motion as to large lien in the amount of $141,013.65 because it arose out of a mortgage foreclosure and §522(f)(2)(C) prohibited the avoidance of such liens. The debtor appealed.

 

On appeal, the Sixth Circuit first rejected the debtor's argument that the bankruptcy court erred by denying the motion to avoid liens, given that nobody objected to the relief requested, reasoning that the bankruptcy court had an independent obligation to consider the merits of the motion, regardless of whether any objection was raised.

 

The Appellate Court then turned to whether § 522(f)(2)(C) prohibits the avoidance of a judicial lien arising from a mortgage foreclosure deficiency judgment.

 

This subsection provides that a debtor may avoid a lien to the extent that it impairs the debtor's homestead exemption, if such lien is "a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)." It then provides a formula for calculating the degree of impairment, but goes on to provide an exception that "[t]his paragraph shall not apply with respect to a judgment arising out of a mortgage foreclosure."

 

The Sixth Circuit noted that there is a "split in authority" on the "purely legal question of whether a mortgage deficiency judgment lien is a 'judgment arising out of a mortgage foreclosure' within the meaning of § 522(f)(2)(C)."  The Court also noted that the "overwhelming majority of courts" have held that mortgage deficiency liens are not judgments arising out of a mortgage foreclosure and thus are avoidable, with only two bankruptcy rulings in Connecticut in the minority.

 

After analyzing the different rationales relied upon by courts in the majority, which include textual analysis of § 522(f), reliance on state foreclosure law differentiating between equitable foreclosure claims and legal deficiency claims, or a combination thereof, the Sixth Circuit, found "that § 522(f)(2)(C) is unambiguous, and no review of state law or legislative history is necessary or appropriate to interpret its meaning."

 

Relying on general principles of statutory construction, the Court held that, interpreting § 522(f)(2)(C) according to its plain meaning and structure, "it does not preclude avoidance of mortgage deficiency judgment liens. Rather, § 522(f)(2)(C) 'clarifies that the entry of a foreclosure judgment does not convert the underlying consensual mortgage into a judicial lien which may be avoided."

 

Accordingly, the bankruptcy court's ruling "that § 522(f)(2)(C) precludes avoidance of a deficiency judgment lien" was reversed, and the case remanded to the bankruptcy court for entry of an order consistent with the Court's opinion.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
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