The Supreme Court has decided that “[a] debtor in a Chapter 7 bankruptcy proceeding may not void a junior mortgage lien under §506(d) when the debt owed on a senior mortgage lien exceeds the current value of the collateral if the creditor’s claim is both secured by a lien and allowed under §502 of the Bankruptcy Code.” Bank of America, N. A. v. Caulkett, 13–1421 (6/1/2015).
Ponder whether the Caulkett ruling will be extended to Chapter 13, and end lien stripping in Chapter 13 cases as well. Caulkett relied entirely on Dewsup as binding precedent. The opinion suggests that but for Dewsnup, a more sensible reading of § 506(a) would permit lien stripping in Ch 7 as well as Ch. 13 cases.
And given that these identical words are later used in the same section of the same Act—§506(d)—one would think this “presents a classic case for application of the normal rule of statutory construction that identical words used indifferent parts of the same act are intended to have the same meaning.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (internal quotation marks omitted). Under that straightforward reading of the statute, the debtors would be able to void the Bank’s claims. Unfortunately for the debtors, this Court has already adopted a construction of the term “secured claim” in §506(d) that forecloses this textual analysis.
On the one hand, Caulkett also strongly suggests that lien stripping should be impermissible regardless of the Chapter under which the case was filed:
Ultimately, embracing the debtors’ distinction would not vindicate §506(d)’s original meaning, and it would leave an odd statutory framework in its place. Under the debtors’ approach, if a court valued the collateral at one dollar more than the amount of a senior lien, the debtor could not strip down a junior lien under Dewsnup, but if it valued the property at one dollar less, the debtor could strip off the entire junior lien. Given the constantly shifting value of real property, this reading could lead to arbitrary results.
Allowing lien stripping of wholly underwater junior liens is no less arbitrary in Ch. 13 than it is in Chapter 7 cases. It would permit an “odd statutory framework” to persist in Ch. 13 cases, but arbitrarily outlaw it in Ch. 7 cases.
On the other hand, in Bartee, 212 F.3d 277 (5th Cir. 2000), the Fifth Circuit already addressed whether Dewsnup’s reasoning should prevent lien stripping in Ch. 13 cases. The answer was no:
Purportedly, Dewsnup ‘s ban on lien stripping carries over with similar effect on Chapter 13 debtors. To the contrary, the Supreme Court’s holding was expressly restricted to Chapter 7 liquidation cases, and is inapplicable to the reorganization bankruptcy chapters. See In re Young, 199 B.R. 643, 650 (Bankr.E.D.Tenn.1996). As one commentator explained: The rationales advanced in the Dewsnup opinion for prohibiting lien stripping in Chapter 7 bankruptcies, however, have little relevance in the context of rehabilitative bankruptcy proceedings under Chapters 11, 12, and 13, where lien stripping is expressly and broadly permitted, subject only to very minor qualifications. The legislative history of the Code makes clear that lien stripping is permitted in the reorganization chapters.