Nobelman v. American Savings Bank

PETITIONER:Nobelman
RESPONDENT:American Savings Bank et al.
LOCATION:An apartment on the North Side

DOCKET NO.: 92-641
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 508 US 324 (1993)
ARGUED: Apr 19, 1993
DECIDED: Jun 01, 1993

ADVOCATES:
Michael J. Schroeder – on behalf of the Respondents
Philip Palmer – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – April 19, 1993 in Nobelman v. American Savings Bank

William H. Rehnquist:

We’ll hear argument next in No. 92-641, Leonard Nobelman against the American Savings Bank.

Mr. Palmer.

Philip Palmer:

Mr. Chief Justice and may it please the Court:

The basic issue in this case is whether section 506(a) of the Bankruptcy Code and section 1322(b)(2) are compatible and can be harmonized, or whether they are hostile and conflict.

It is the position of the petitioner that they are compatible and they can be harmonized.

The function of Code section 506(a) is to divide a claim into secured and unsecured parts.

A creditor who is undersecured under 506(a) may wind up with two claims, one of which is a secured claim to the extent of the value of the collateral, and the excess, or any amount above that, becomes an unsecured claim.

We know that 506(a) does apply in Chapter 13, because the Code tells us it does in section 103(a).

But does it apply specifically to Chapter 13, Code section 1322(b)(2)?

Everything I’ve said so far is little in dispute between the parties, but we now reach the point where the ways divide.

The respondents argue that it does not apply, in an argument that is based upon the 1322, the clause that reads

“other than a claim secured only by security interest in the real property that is the debtor’s principal residence. “

As you look at the various respondent positions taken, they differ somewhat between themselves as to why the 506(a).

American Savings and Freddie Mac specifically focus on the word “rights” to tell us that the “other than” clause modifies only the word “rights”.

Nationsbanc, Fannie Mae, and the Chapter 13 Trustee look to almost the same thing, “rights of holders”.

Whereas the Realtor Group, Fannie Mae again, and Freddie Mac look to the word “claims”, which they define by going back to the definitional section of the Code to determine that a claim is both a secured and an unsecured claim… indeed, a right to payment.

None of the respondents look to the word “secured” or “secured claim” together.

Now, the argument for the application of 506(a) can be made first by the rule of last antecedent, which was applied by the Ninth Circuit in the Bellamy case to say you should look to the words that immediately precede the clause in question.

Not just claims, but Bellamy looked to the adjective as well, secured claims.

Another approach is that when several words are followed by a clause and the clause is just as applicable to the first word or the last word or middle words, that clause should be read as applicable to all, which was an approach espoused by Justice O’Connor and Kennedy in the Ron Pair dissent.

Either approach is fatal, because either approach puts the word 1322(b)(2).

And it is 506(a), and 506(a) is what the respondents must avoid.

Now if, as those opposed to the application of 506(a) would argue, that it was not meant to apply, one thought which occurs is that the clause could have been put at the very first of 1322(b)(2), or at the very end.

In effect, to start off by saying “other than” what I’ll call a homestead mortgage, the debtor may modify secured or unsecured claims, and you could reach the same reasoning at the end.

Or as another alternative, Congress intended that both the secured and the unsecured homestead lands were untouchable, and put in something equivalent to the 1111(b) option that is found in Chapter 11 and with which all respondents seem to be happy.

But none of those things happened.

And if you simply take the statute as it reads, 506(a), for the determination of what is a secured claim, and 1322 by either of the techniques of the “other than” clause, you come out with a statute that is consistent.

It harmonizes, there is no conflict.

We do not need to search further for the intention of Congress because it is expressed clearly.

Byron R. White:

You mean your clients weren’t trying to alter a secured claim.

Philip Palmer:

They were not and, in fact, have not.

But in answering that, of course, the key, the operable words are secured claim.

If you accept, as we do, 506(a), that secured claim is only the $23,500 the condominium was worth, we’re not altering.

Sandra Day O’Connor:

Mr. Palmer, I’m not sure that 1332(b)(2) refers to secured claim.

It… the language is

“a claim secured only by a security interest. “

I’m not sure that necessarily means the same thing.

Philip Palmer:

And that argument–

Sandra Day O’Connor:

It’s an identification of the instance in which the… where there is a security interest in real property that is the principal residence, it says no modification of the rights of holders could be made.

And I think you also have to deal with the language, modify the rights of holders.

I suppose a holder can hold both rights to secured and unsecured claims.

Philip Palmer:

–Let me answer or state to the first one first, and then we’ll come to the rights of holders.

The secured claims that I was referring to is the language that is before the comma in 1322(b)(2): the

“secured only by a security interest. “

The argument has been made that to really say clearly what I am arguing, you would have to say secured claim secured.

And that is rejected by Bellamy upon the proposition that that would be a wooden and awkward way to force Congress to express its intent; that there is really no significant difference between a secured claim and a claim secured.

And, of course, our position would be the same as Bellamy.

On the rights of holders, if I may borrow your own language from the Ron Pair dissent.

Sandra Day O’Connor:

Well, that’s dangerous business, I suppose.

[Laughter]

Philip Palmer:

It’s been cited several times for the grammatical analysis which, frankly, does appeal to me at this moment.

[Laughter]

If you take… or if you accept that there is some uncertainty as to what the “other than” clause applies, if you do not accept the Bellamy rule of last antecedent, then we seem to fall right into the analysis that you made… with considerable and respectable authority, I might add… that it must apply to the whole thing, rights of holders of secured claims.

But what are the rights of the holders of the secured claims?

And that brings us back, I think, to the operative word, “secured claim”.

We’re not now speaking about the rights of holders of secured, or partially secured, or secured and unsecured claims, but only secured claims.

There are some other points that lead to somewhat the same analysis.

William H. Rehnquist:

Mr. Palmer, I hope you will discuss either now or after we return from the noon recess, the bearing you think the Dewsnup… our opinion in Dewsnup against Timm has on this.

It seems to me that that… although it may not be controlling, it certainly cuts against some of your arguments.

Philip Palmer:

Dewsnup and lien pass through, we can certainly start it now and may not finish.

Philip Palmer:

There is a question of whether or not Dewsnup forecloses the argument that was made here.

And, of course, all are aware that that was a Chapter 7 case.

All are aware that that was dealing to 506(d).

And I think all are aware that that was… the issue there was whether or not an abandonment would revive the lien that appeared by its terms to be cut off under 506(d).

And what I think the Court held, and properly, was that 506(d) applies only when it is not an allowed secured claim claim.

Because otherwise, Code liens would not pass through the act the way that Act liens did.

Now, when I say pass to… through, I think this Court was speaking in terms of unadministered.

They come into the estate at the beginning, but they are abandoned out of the estate and they should go out as they came in, with the same lien encumbered.

That was the old Bankruptcy Act rule and it was… the Court found nothing in the Code or the legislative history to indicate any intent to change that.

And the results of implying such a change would be a rather unfair windfall to the debtor, because it would be a permanent reduction even though it no longer served a bankruptcy purpose.

But none of those considerations apply here.

Chapter 13, as indeed do Chapter 11 and 12, have a built in protection against the windfall problem.

Chapters 11 and 12 keep… and 13 keep the property in the estate; abandonment is not a problem.

I see nothing in the Dewsnup case that indicates that it would move beyond the Chapter 7 abandonment factual situation the Court applied it to.

There is a reference in Dewsnup… and the Chapter 13 trustee here speaks to it in her brief… that 506(a) does not, by itself, avoid liens; it simply classifies claims into secured and unsecured.

But that something further… as I recall, she used the word catalyst… some catalyst is required.

And this Court determined that 506(d) did not apply in Chapter 7.

Even if you were to assume that the Dewsnup opinion should be expanded to say 506(d) does not apply in Chapter 13 either, that’s not the catalyst that avoids the excess lien in Chapter 13.

Instead, it’s section 1327(c), which is the effect of confirmation rule, that reduces the property to the value… by… well, mechanically it revests the property in the debtor free and clear of whatever amount has been determined to be an excessive value.

So a 1327(c) trigger, and a discharge under 1328, except as to long-term debts assumed by the plan, which would include the mortgage, as reduced in–

Obviously, Dewsnup spoke to none of those issues.

I don’t think they were before the Court.

And I see Dewsnup as a case somewhat limited in its scope to arrive at a proper result.

William H. Rehnquist:

We’ll resume there at 1:00.

Mr. Palmer, you may resume.

Philip Palmer:

When we took our noon break, we were discussing Dewsnup, and I’d like to pick up again at that point.

Dewsnup, of course, was a Chapter 7 case.

Dewsnup did not involve homestead or residence; it involved farmland in Utah.

And the argument was made in Dewsnup that because there had been a valuation of the property at a value well below the total amount, the total amount of the debt, that that was something akin to albatross branded to that property, even after that property was abandoned from the bankruptcy estate so that no distribution purpose in the bankruptcy remained.

The Court felt, and I think with justification, that that was an unfair result.

Philip Palmer:

Should the property appreciate in value, it would create a windfall to the debtor.

The Court found 506(d) ambiguous, and having made that initial determination then determined that the Court was uncomfortable in changing pre-Code law on ambiguous language when there was no legislative history whatever to support it.

But we turn then to Chapter 13 and its differences.

Chapter 13, of course, is one of the rehabilitation sections.

The property is not abandoned from the estate but remains in the estate, and that is true even if there is no objection to the exemption status as homestead.

Exempt property does not pass from the Chapter 13 estate until after the plan has been confirmed, and only then under 1327 does it pass from the estate.

The purpose of determining exemptions in Chapter 13 is not, as in Chapter 7, to have it pass from the estate, but to determine whether or not the debtor must include in its payments to creditors an amount equal to all of its nonexempt property.

Now, that’s all a Chapter 7 debtor does, is surrender his nonexempt property.

But a Chapter 13 debtor is required to do more than that.

The Chapter 13 debtor must not only pay the value of all of his nonexempt property, but must also pay his nondisposable income… that is to the excess under his monthly budget, his nondisposable income for 3 years to get the benefits of a Chapter 13.

Chapter 13 is a favored chapter in bankruptcy, and that has been a consistent purpose of Congress and that’s well reflected in legislative history throughout.

William H. Rehnquist:

Favored over Chapter 7, Mr. Palmer?

Philip Palmer:

Favored over Chapter 7.

Because Chapter 13 presents a man who is doing more than the legal minimum that he would have to do to receive a discharge of his debts.

Byron R. White:

Under Chapter 7.

Philip Palmer:

Than he would have to do under Chapter 7, yes.

William H. Rehnquist:

But he also gets some benefits from Chapter 13 that a Chapter 7 debtor doesn’t.

Philip Palmer:

That is true.

Otherwise, I assume it would be very hard to sell.

But those benefits are these.

First, he will consider Chapter 7 when he needs to take an Internal Revenue Service, a tax debt otherwise nondischargeable, and wants to pay it out over a period of time.

Or he wishes to save a homestead, because Dewsnup now makes it clear Chapter 7 will not help him save a homestead.

Or in those States where exemptions are parsimonious and he would rather value and pay for his furniture, car, et cetera than give them up.

Those are the benefits of Chapter 13.

Saving a homestead, I will not deny, is a major benefit in Chapter 13, and one reason why many people select Chapter 13.

But if the respondents prevail today, that incentive will be taken away and there will be more people filing Chapter 7 than 13.

Well, there is another I should mention, and that is that the grounds for objection to discharge in Chapter 13 are more restrictive than they are in 7.

That’s really not a major consideration for the average couple, but it’s also a benefit of 13 over 7.

Antonin Scalia:

Mr. Palmer, would you explain… explain how your system works?

How can it be that where you have a single instrument of indebtedness that covers both the secured and the unsecured claim, you can comply with what you contend the provision says, and that is allow the instrument to be modified as to the unsecured claim, but not allow it to be modified as to the secured claim.

Antonin Scalia:

How does one go about doing that?

Philip Palmer:

Let me begin by explaining it in an area where there is absolutely no controversy between the parties, the $50,000 lien on the $100,000 automobile.

All the same… instruments are the same.

Security agreement instead of the deed of trust, but other than that exactly the same.

506(a) and 1322(b)(2) clearly permit the valuation of the lien, the secured claim, to $1,000, on the proposition that that’s all the car is worth.

If the car were abandoned, the lienholder could get no more than the $1,000 fair market value and have an unsecured claim for $49,000.

If we move it to a homestead, the result is exactly the same unless, of course, the “other than” clause gives more protection than we say it does.

The debtor… the creditor will have a $23,500 secured claim in this case.

Antonin Scalia:

No, I understand that.

I mean, I’m not asking for the difference between the secured and the unsecured; I understand that.

But for the car or for the homestead, I have the same problem about how you can… how you can allow a unitary instrument which covers a claim… part of which is secured and part of which is unsecured, but it’s just one instrument.

How can you allow it to be modified as to the secured portion of the claim but not as to the unsecured portion of the claim, or vice versa, which is what 1322(b)(2) requires?

How can you do that?

It’s a single instrument that covers both.

Philip Palmer:

Well, the single instrument is defined as between the parties and in a nonbankruptcy context.

But when you go into a bankruptcy, 506(a) applies whether it… the debt’s in one instrument or two instruments.

Antonin Scalia:

Well, I understand that.

But the other side says we don’t have to worry about this problem.

Given our interpretation, you simply… you simply can’t modify it, if it’s a homestead.

You say, yes, you can, but you can only modify it… you can only modify it as to the unsecured.

How does one go about modifying it just as to the unsecured?

Philip Palmer:

Well, at the inception we apply 506 and 1322(b)(2), and we’ve talked about that.

Then we have confirmation.

The confirmation section, which is 1327, provides in section (c) that all of the property of the estate not otherwise dealt with revests in the debtor free and clear of any amount other than the secured claim.

So that’s how we get our one instrument down to a twenty three thousand five–

Antonin Scalia:

Well, but we’re not talking about the revesting provision.

What we’re talking about is whether the rights can be modified in the plan.

That’s the provision we’re discussing here.

Now, give me an example of how one can modify the rights pertaining to this unitary instrument only as to the unsecured portion, but not as to the secured portion.

How does one go about doing that?

Philip Palmer:

–Well, we’re not going to modify the unsecured rights.

We’re going to treat them as unsecured rights under the plan.

The remaining portion of the claim was unsecured; the plan will treat of unsecured claims.

Antonin Scalia:

No, but the provision we’re talking about is a provision that allows rights to be modified, right?

I mean that’s the provision before us.

Philip Palmer:

That’s 506(a).

Antonin Scalia:

And… right.

And as at issue is whether the exception to that which says you can’t modify rights as to homestead… whether that covers all rights in the homestead agreement or only those rights that are secured.

And you say the latter, right?

Philip Palmer:

I say the latter.

Antonin Scalia:

And just give me an example of a real life mortgage agreement in which you modify the unsecured portion but not the secured portion.

How… I really don’t understand what it means to say that.

Philip Palmer:

That approaches it backwards, I have to admit, from the way I’ve always looked at it.

Antonin Scalia:

Well, I do things that way, I guess.

[Laughter]

Philip Palmer:

I’ve always looked at it that we’re modifying the secured portion and thereby automatically making the rest unsecured.

I don’t know of any case that ever dealt with modifying the unsecured portion of the claim.

Once it’s become an unsecured portion, the debtor can deal with it in his claim.

Antonin Scalia:

Well, I don’t care if there’s a case or not.

But if it’s impossible to do, if you can’t give me an example of how it might be done, I will be inclined to think that your reading of the provision is wrong since it makes no sense.

Just tell me how?

You know, how one would do it if one wanted to do it?

Philip Palmer:

All right.

I would think that you could propose a plan that says we will value down all secured claims, homestead, car, et cetera, to fair market value, and we will pay 25 cents on the dollar for all unsecured claims.

There I’ve modified unsecured claims, which I have a right to do.

That’s not in dispute.

I have a right to modify unsecured claims.

Byron R. White:

Does the… in 13 does… if the secured creditor wants to participate, does he have to file a claim?

Philip Palmer:

All claims are supposed to be filed in a 13.

Byron R. White:

Yeah.

Byron R. White:

Did–

Philip Palmer:

There’s nothing equivalent to 111(a) where–

Byron R. White:

–Under 506… under 506 does a secured creditor… with 506 in mind, does he just file a claim for the full amount of his security?

Philip Palmer:

–Traditionally, yes.

Byron R. White:

And he never then files a claim for the unsecured portion.

Philip Palmer:

No.

The debtor draws the issue by filing the plan.

Byron R. White:

Yes.

Philip Palmer:

Which says we value… as they did here… we value your equity at $23,500.

That will be the amount of your secured claim.

Byron R. White:

But the secured creditor has filed a claim for the full amount.

Philip Palmer:

Has filed a claim for the full amount.

Byron R. White:

As a secured creditor… as a secured claim.

Philip Palmer:

It… as a secured claim.

Byron R. White:

And so he has an… so the secured creditor, whether it’s a… whether it’s a homestead or not, he has a… he has a chance to litigate the value that they assign.

Philip Palmer:

That is so.

And that was, in effect, done here at the confirmation hearing.

But of all the court of appeals cases, the four that conflict with the Fifth Circuit decision, every one of those, the values were agreed or stipulated.

Apparently, it’s not a big batch.

Byron R. White:

Yeah.

Philip Palmer:

But the opportunity is always there.

There’s one thing that–

Antonin Scalia:

Mr…. is this another point or are you still responding to the same one?

Philip Palmer:

–No, it was another point.

Antonin Scalia:

Before you do that, let’s take a… I’m not satisfied or I don’t understand your answer to my previous question.

Suppose you have a mortgage that provides for payments of $500 a month, all right.

And that’s for the whole thing, for the secured and the unsecured.

How do you modify the unsecured portion of that mortgage without modifying the secured portion?

Don’t the payments still have to be $500 a month?

Philip Palmer:

They do.

Philip Palmer:

That’s what we contend is the meaning of the “other than” clause.

We must continue to pay the same mortgage amount.

David H. Souter:

But even if that is so, you’re still modifying it because you’re not going to pay the same mortgage amount for… or the same periodic payment amount for the same period of time.

Philip Palmer:

No.

David H. Souter:

No matter how you cut it, you’ve got to modify something with respect to what’s left of the secured portion.

Philip Palmer:

Well, the… if you reduce the balance that’s due… the unpaid principal, if you will, to the $23,500, when the payments, after interest service, have reached $23,500, that lien will be paid off.

David H. Souter:

Yeah.

And the lien would also be paid off if you make the same number of payments you had agreed to make before, but they were smaller payments, sure.

So no matter… no matter which way you go, you’ve modified something with respect to the secured claim beyond the amount of the lien.

Philip Palmer:

I have reduced the amount of the debt by what we have determined to be unsecured.

William H. Rehnquist:

Thank you, Mr. Palmer.

Mr. Schroeder, we’ll hear from you.

Michael J. Schroeder:

Mr. Chief Justice, and may it please the Court:

Mr. Palmer was correct when he said that this case involves an interpretation of one or more statutes.

I would like to reread section 1322 for the Court, the pertinent portions of that statute, and if the Court wants to follow along, that statute is reprinted in page 3 of American Savings’ brief.

The pertinent provisions of 1322(b)(2) state that

“the plan may modify the rights of holders of secured claims, other than a claim secured only by security interest in real property that is the debtor’s principal resident. “

Taking a plain and clear look at the language of this statute, it appears that the word “rights” is the grammatical object of the word “modify”.

Modify.

What are modifying?

We’re modifying the rights.

In addition, the term “secured claim”, again in that first phrase, is preceded by the preposition “of”.

It’s our contention that those three words together, “of secured claim” is merely definitional and defines the type of holder that the Congress was talking about when they passed the statute.

They’re talking about a holder of a secured claim.

Now, applying Mr. Palmer’s rule–

Byron R. White:

“Other than the holder of a claim secured only by a security interest. “

Michael J. Schroeder:

–That’s correct, Your Honor.

Byron R. White:

Yes, uh-huh, all right.

Michael J. Schroeder:

And applying Mr. Palmer’s rule of last antecedent, several courts which have allowed lien strip-down have simply gone back and applied the “other than” words simply to the phrase “secured claim”.

It’s our position that the better application, according to that particular rule, is to apply the “other than” phrase to the rights of holders of secured claims.

Anthony M. Kennedy:

Under your view, what is the result if there is a second mortgage as to which there is no adequate security at all?

Say that in this case there were a second mortgage, even the first is not satisfied.

Is the second mortgagee a holder of a secured claim?

Michael J. Schroeder:

So long as he had a perfected security interest in the property at the time of the filing of bankruptcy, he would be a secured creditor, that’s correct.

The debtor–

Anthony M. Kennedy:

Even though the value of the property does not support any portion of his secured… any portion of his claim as a secured claim.

Michael J. Schroeder:

–That’s correct.

He would be a secured creditor.

However, his security interests would be undersecured.

In your example, there would be no value in the property to support his security interest.

Nonetheless, because he has, for example, a second lien mortgage or deed of trust, he would ostensibly be classified as a secured creditor because he has a security interest claim against property of the debtor in the bankruptcy proceeding.

Anthony M. Kennedy:

It’s difficult for me to square that with 506(a).

I know we’re not talking about a second here, but I want to see how the statute works.

Michael J. Schroeder:

I understand that, Your Honor.

And until the legislature clarifies your concern, it’s our interpretation that the same treatment must be accorded to a first, second, or third lienholder against residential real property, without regard to the value of the property.

And let me, if I can, explain how I arrive at that conclusion.

Mr. Palmer’s client would have this Court believe that 506(a) automatically kicks in to affect the claim or secured claim rights of a holder as defined in section 1322.

It’s our position that 506(a) doesn’t necessarily automatically kick in to define the term “secured claim” in that instance.

The term “secured claim” is merely definitional, again, of the type of holder that the statute’s talking about.

Byron R. White:

Well, I suppose your colleague on the other side would… the meaning he would ascribe to 1322(b)(2) would be the same if it just read

“the plan may modify secured claims other than a claim secured by. “

Which the meaning for him, the meaning wouldn’t change if you left out the words “the rights of holders of”.

Is that right?

Michael J. Schroeder:

I think for Mr. Palmer’s position that would be correct.

But what the… the way… the statute’s not written that way.

The statute is written that it’s the rights that are protected by the “other than” clause, in a clause that fits after the comma.

Byron R. White:

And but you… but rights you figure are those rights defined by State law.

Michael J. Schroeder:

That’s… I’ll get into that argument–

Byron R. White:

Well, I know, but you have to get to it because otherwise you can say… you could argue that well the rights are those that are… that are described in 506.

Namely, you’ve got a secured claim only to the extent of the value of the property.

Michael J. Schroeder:

–Well, we would take the position, Your Honor, that the term “rights”, as opposed to the words “claim”, and “security interest” and “lien” and other words of art in the Bankruptcy Code… the word “rights” is not defined anywhere in the Bankruptcy Code itself.

Byron R. White:

So it’s State law rights, I guess.

Michael J. Schroeder:

Well, this… this Court, in Dewsnup, gave us some direction as to some of the rights that a holder of a mortgage has, with respect to its note and deed of trust, a mortgage.

And it comes into the bankruptcy court as a creditor of the bankruptcy estate.

This Court, for example, in Dewsnup has said that it is the creditor, not the debtor, who has the benefit of increase in value, so as to avoid a windfall to the debtor in that case.

I believe that’s one right.

Another right that the Dewsnup Court set forth was the right to have the lien pass through bankruptcy unaffected.

In addition, this Court in the Barnhill case, in interpreting the words property and interest in property, said that in the absence of a controlling Federal law, we may look to State laws.

So by analogy, I think… to answer your question… yes, we may look to State law in determining what rights are.

Antonin Scalia:

Well I… I’m surprised this is even an issue.

I mean the provision doesn’t mean very much if it means the only rights you may modify are the lien rights in particular.

I mean surely it means you can… you can modify the rights that are the substantive rights to which the lien attaches.

The right to payment by a certain date, the right to a certain amount of payments every month, and so forth and so forth.

Michael J. Schroeder:

And that’s exactly–

Antonin Scalia:

Certainly everybody understands that’s what it means.

Michael J. Schroeder:

–And that’s exactly–

Antonin Scalia:

And those are State rights, aren’t they?

Michael J. Schroeder:

–That’s correct.

Antonin Scalia:

So why isn’t your answer to Justice White simply yes, it includes State rights?

Michael J. Schroeder:

Yes, it does include State rights.

[Laughter]

But what–

Byron R. White:

How about not… but limited to.

Under 1322, you’re talking… the word “rights” refers only to the rights of the holder that he acquired prior to bankruptcy under State law.

Michael J. Schroeder:

–Yes.

Because I think the rights that any creditor would have in bankruptcy are those defined by the Bankruptcy Code.

Byron R. White:

Yes, all right.

Michael J. Schroeder:

So, yes.

And Justice Scalia, your analysis is exactly our point.

The “other than” clause must affect all those rights, those bundle of rights that a secured creditor such as my client would take with him in the bankruptcy.

Michael J. Schroeder:

In addition–

David H. Souter:

Mr. Schroeder, could I just interrupt you for a second–

Michael J. Schroeder:

–Yes.

David H. Souter:

–With what I assume is an easier question.

But I take it on your theory, if the one lien holder had a second mortgage on a separate piece of property, he wouldn’t have any protection.

Michael J. Schroeder:

That’s correct.

David H. Souter:

Okay.

Michael J. Schroeder:

If it’s not homestead, for example.

David H. Souter:

The second one is not homestead, that’s right.

Michael J. Schroeder:

If that’s–

David H. Souter:

One, he’s got a lien on the homestead and then he’s got a second mortgage.

He doesn’t get protected.

Michael J. Schroeder:

–That would be our interpretation, yes.

Because–

Antonin Scalia:

Rights means the rights to which the lien that’s a lien on a homestead relates.

Michael J. Schroeder:

–Correct.

Antonin Scalia:

Okay.

No, but you’re… but you’re also identifying the person who can claim anything as the person whose sole lien is… whose lien is solely on the homestead property.

Michael J. Schroeder:

And that’s… yes, sir.

And that’s because that’s… in our view, that’s the way the statute is written.

The “other than” clause refers to those creditors having a claim on real property that is the debtor’s principal residence.

So it’s under that–

Antonin Scalia:

And that alone.

Michael J. Schroeder:

–And that… under that statute alone, that seems where that protection is directed, that’s correct.

In addition, under that second clause, the 1322(b)(2) refers to a claim in the singular.

It does not refer a second time to secured claim or to secured portion of a claim, or something else; it refers to a claim.

And under section 101(5)(a) of the Bankruptcy Code, “claim” is defined as any right to payment, whether or not such right is secured or unsecured.

Antonin Scalia:

To be fair, it refers… it refers not just to a claim, but to a claim secured, which is poetic for secured claim.

[Laughter]

Michael J. Schroeder:

Some courts have interpreted it that way, yes, Your Honor.

Michael J. Schroeder:

Other commentators have found that there is a difference between the term 506(a) and “claim secured by”, where the word “secured” is definitional.

William H. Rehnquist:

Only lawyers could come up with that sort of a distinction.

And so you are.

[Laughter]

Michael J. Schroeder:

That’s what I was told when I got my certificate from this Court.

[Laughter]

Sandra Day O’Connor:

Counsel, what can the debtor in a Chapter 13 proceeding do, then, in a situation such as the Nobelmans have?

Just leave the residence out of the proceeding altogether and let it be taken by the mortgage holders.

Michael J. Schroeder:

They have several elections or alternatives, and some of the alternatives are not very realistic.

One alternative would be to cure any existing arrearage immediately so there is no problem with the mortgage company.

Most debtors wouldn’t be in bankruptcy in the first place if they had that ability to do that.

Another alternative would be… and this is what I believe the legislature intended and Senator DeConcini’s comments went to, is that a claim such as the one claimed by American Savings Bank, the debtor would elect to cure and maintain payments under section 1322(b)(5).

Under 1322(b)(5), a homestead debtor typically takes a prepetition arrearage, that arrearage that existed on the mortgage loan prior to bankruptcy, puts it into his plan, and, depending on what district you’re in, either makes direct regular monthly postpetition payments to the creditor or through the trustee to the creditor.

That’s an election that a creditor in the Nobelmans’ position could take.

Byron R. White:

Yeah, but he’s got to keep… he’s not only got to make up arrearages; he’s got to pay his current amounts due.

Michael J. Schroeder:

That’s correct.

And that’s the way the Code’s read.

Sandra Day O’Connor:

Well, and in your position, pay off the whole principal balance even though the property isn’t worth it at all.

Michael J. Schroeder:

Well–

Sandra Day O’Connor:

So does he have another alternative, just walk away from it?

Michael J. Schroeder:

–He can walk away from it.

He can go into a Chapter 7 and get his personal liability discharged, which is going to get him potentially better off than if he were to go through a Chapter 13.

Sandra Day O’Connor:

Well, if he wants to walk away from it, would he have to do it in a Chapter 7 proceeding, very likely?

Michael J. Schroeder:

If he wants to avoid personal liability, that’s correct, Your Honor.

And Chapter 13, the discharge provision, section 1328, has an exception.

There are certain debts which are excepted to discharge in Chapter 13 which are not excepted to in Chapter 7.

For… and one of those is long-term debt, where the last payment on the debt is on a date further into the future than the last payment date on the Chapter 13 case.

So potentially in the situation we’re talking about, a debtor may be better off going into a 7 because he would have the receipt of a Chapter 7 discharge, would receive that personal liability relief.

But obviously he would lose his home.

The creditor, more than likely, would ask the court to lift the stay or modify the stay to allow foreclosure to proceed.

Sandra Day O’Connor:

Now, a majority of the circuits have gone the other way.

Michael J. Schroeder:

That’s correct.

Sandra Day O’Connor:

How do you… how do you explain that?

They just take your… the petitioners’ view of this thing, I guess, in terms of how to read the statute.

Michael J. Schroeder:

Well, if I might answer your question, Your Honor, by addressing the four specific cases individually.

In the Hougland case which came out of the Ninth Circuit, which was the first of the pro lien-stripping cases, it appears from a reading of the text that that court was predisposed as to its decision.

There was some verbiage in that decision which says we can’t believe that a mortgage creditor wouldn’t have an equity cushion in the first place.

They also do, as my opponent is suggesting, automatically take 506(a) and force it into 1322(b)(2), just because 506… the Chapter 5 provisions of the Bankruptcy Code are ones of general applicability to all other substantive provisions.

The Wilson case is somewhat distinguishable.

The same result was reached there, but in that case the creditor had additional collateral beyond the homestead.

And so the court, in part… almost in passing, but it did recognize that additional collateral beyond the homestead was claimed by the mortgage company in that case, so that case is somewhat distinguishable.

In the Hart case we have the same situation where we had a mobile home on real property and other collateral.

Again, that is somewhat distinguishable.

That’s not what the court necessarily… the facts that that court necessarily relied on in reaching its decision, but those were considered by that court in the result that took place.

In the most recent case, the Bellamy case, the court there takes a somewhat circular analysis of the statutes in effect.

The court, by that time, had heard several arguments.

And as a matter of fact, the creditor involved in that case, the Federal Home Mortgage Corporation, made the argument that it was rights and not the secured claim that was subject to modification at 1322(b)(2).

The Bellamy court on one page of its decision said yeah, that might be the case.

You may be correct in saying that it is the rights that are the subject of the adjective modified.

However, the real question is whether it means unsecured rights or secured rights.

And then it goes on to make a statement about the Code being a substantial change from the Act, which it was.

And therefore… without really looking at the terms of the statute, therefore we must only be talking about secured claims.

A couple of pages later in that same decision that court goes and automatically, as the Hougland, Wilson, and Hart courts did, take the “other than” phrase and apply it to the words “secured claim”, just as if it had forgotten that it already used the rule of last antecedent to apply to the entire phrase of that preceding phrase.

Byron R. White:

So your submission is that a plan may not be confirmed unless it provides for the payment of the entire principal amount.

Michael J. Schroeder:

To a home mortgage lender.

Byron R. White:

Yes.

Michael J. Schroeder:

That’s correct.

Byron R. White:

And no part of it can be treated as an unsecured claim.

What may–

Michael J. Schroeder:

Not necessarily.

Byron R. White:

–How may the rights of unsecured creditors be modified in a Chapter 13 proceeding?

Michael J. Schroeder:

How may the unsecured rights–

Byron R. White:

Uh-hum.

Michael J. Schroeder:

–Be modified?

Byron R. White:

Do they have to pay them at all?

Michael J. Schroeder:

In a Chapter 13 proceeding, a debtor is required to submit to the court, as required by the Code, his disposable income.

Byron R. White:

Right.

Michael J. Schroeder:

That income that is over and above his living expenses, simply.

Byron R. White:

Right.

Michael J. Schroeder:

That disposable income goes in part to pay certain claims in the bankruptcy case.

Priority claims.

Byron R. White:

Sure.

Michael J. Schroeder:

Potentially, attorney fees.

Byron R. White:

Yes.

Michael J. Schroeder:

Unsecured creditors.

Byron R. White:

How about secured creditors?

Michael J. Schroeder:

Secured creditors are dealt with… and potentially secured creditors.

For example, the prepetition arrearage on a home-mortgage loan.

Byron R. White:

Well, how about the… how about the principal amount, the unpaid principal amount?

Michael J. Schroeder:

The unpaid principal amount in a typical residential mortgage situation–

Byron R. White:

Yes.

Michael J. Schroeder:

–Is going to be included, in part, in the prepetition arrearage.

Byron R. White:

Yes.

Michael J. Schroeder:

Because the prepetition arrearage–

Byron R. White:

Right.

But now the rest of the unpaid amount.

Michael J. Schroeder:

–But now… the unpaid amount?

Byron R. White:

The rest of it, yeah.

Michael J. Schroeder:

It’s our position that there cannot be any modification on that, whether it is secured or not.

Because the reading of the statute says that the… it is the rights, whether secured or not.

Byron R. White:

Yeah.

Michael J. Schroeder:

Those rights cannot be modified as against a residential–

Byron R. White:

But when… when the… suppose the disposal income is not enough to pay anything more than, say… it just obviously isn’t enough ever to pay off unsecured claims, all of them.

Michael J. Schroeder:

–Usually that’s the case, yes.

Byron R. White:

Yes.

And so the balance is… when he pays what he can, he’s discharged from–

Michael J. Schroeder:

Debt.

That is correct.

Except as to, again, either… the 1328 discharge, certain debts.

There are certain sections including long-term debts.

Byron R. White:

–But in any event, the principal amount, the unpaid principal amount of the contract or on the mortgage on the principal residence just lingers.

He’s never discharged from that, in your position.

Michael J. Schroeder:

That is our position, yes, sir.

John Paul Stevens:

May I just ask to get one thing clear in my mind.

You do… or what is your position on whether the interference with your right, otherwise existing right to foreclose, would be a modification of your rights?

Michael J. Schroeder:

That is… my position on that, Your Honor, is that is dealt with by another section of the Bankruptcy Code, specifically section 362 of the Bankruptcy Code and, in certain cases, section 1301 of the Bankruptcy Code which imposes upon the filing of a bankruptcy petition an automatic stay.

John Paul Stevens:

So this is done by statute rather than by a plan.

Michael J. Schroeder:

That’s correct.

And what 1322 speaks to, Your Honor, is “a plan may modify”–

John Paul Stevens:

I see.

Michael J. Schroeder:

–“Other than”.

John Paul Stevens:

That is not a modification caused by the plan.

Michael J. Schroeder:

That’s correct.

That’s a statutory modification, and that is something that we were… we live with.

John Paul Stevens:

Yeah.

Michael J. Schroeder:

In addition–

Antonin Scalia:

Mr. Schroeder, what… what if you have two mortgages on a property, okay?

Michael J. Schroeder:

–Yes.

Antonin Scalia:

And even the first one is undersecured.

Under your reading, is the second mortgage also protected?

Michael J. Schroeder:

Under our reading of the statute, the way it is currently written, yes.

Antonin Scalia:

Even though that second mortgage doesn’t even qualify as a secured claim at all.

It’s not even a… under 506.

Michael J. Schroeder:

Under 506 it may not be secured, that’s correct.

But–

Antonin Scalia:

It is not secured.

Now, don’t say “may not” now.

In the hypothetical I gave you, it is not.

Michael J. Schroeder:

–That–

Antonin Scalia:

It is not a secured claim under 506(a).

Michael J. Schroeder:

–That’s correct, Your Honor.

Antonin Scalia:

But under your reading it would have full protection under… as a second mortgage even though the first mortgage gobbles up the entire value of the security, right?

Michael J. Schroeder:

That’s correct, Your Honor.

Antonin Scalia:

Wow.

Michael J. Schroeder:

And so our position would be that the debtors need to make some elections and some choices about whether that home is worth keeping or not.

In addition, Your Honor, in our case American Savings Bank is, according to the findings of the bankruptcy court below, undersecured.

They have a first lien on the property, but the value of the property, as found by the bankruptcy court, is less than the total of that.

Antonin Scalia:

Well, they–

Michael J. Schroeder:

The–

Byron R. White:

–I would think under your position in this case, it would be better for the… for the homeowner just to say go ahead and foreclose, just abandon the property to you.

Michael J. Schroeder:

–Yes.

That would be an election that I think would make sense for a homeowner.

Byron R. White:

And then… and what rights would you have, then, by the way?

Would… say you foreclose.

Would you have any security claim that you might have to… that you could get paid off or possibly get paid off under the plan?

Michael J. Schroeder:

No secured claim after liquidation of the collateral through foreclosure.

Byron R. White:

Yeah, yeah.

Michael J. Schroeder:

That’s correct.

Byron R. White:

But you’ll still have a deficiency.

Michael J. Schroeder:

That’s correct.

Byron R. White:

And that is still… except for the bankruptcy, he would still owe it.

Michael J. Schroeder:

That’s correct.

Byron R. White:

Well he still owe it to you if he abandons the property to you?

Michael J. Schroeder:

Yes.

If he… well, it–

Byron R. White:

Wouldn’t it be–

Michael J. Schroeder:

–Let me answer that question this way.

It may depend on how he abandons the property to the creditor.

There is a practice in the Northern District Bankruptcy Court of Texas whereby certain debtors attempt to abandon property in full satisfaction of the debt to the creditor.

Byron R. White:

–But I would have thought that your deficiency would be discharged in the… in the proceeding.

Michael J. Schroeder:

It may be discharged, and that’s a question that I don’t think is before this Court today, but–

Byron R. White:

Well, it may not be, but it’s kind of an interesting question, isn’t it?

[Laughter]

Michael J. Schroeder:

–That… you’re right.

And the answer I would give to your question is that I don’t… I do not believe… the way that Chapter 13 is set up is that that deficiency would be discharged because of section 1328.

Byron R. White:

1328.

Michael J. Schroeder:

Which has the certain exceptions to discharge for Chapter 13.

And one of the exceptions is long-term debt, and that note is still due and payable 25 years in the future, or whatever the maturity date is, which may be outside the 3 or 5 year plan that the Chapter 13 debtor is in.

So potentially, yes, even a deficiency after foreclosure in a bankruptcy may not be nondischargeable.

Now–

Byron R. White:

Well say it was… it didn’t exceed the length of time that… say it would… it didn’t exceed that length of time, would it be discharged?

Michael J. Schroeder:

–Yes, it would.

Byron R. White:

Because why?

Michael J. Schroeder:

Because it does not fall within the exception of section 1322.

Byron R. White:

Well, I know.

But why in the first place would be… would it be discharged?

Did you… would you have filed a deficiency?

Filed–

Michael J. Schroeder:

We… my client would–

Byron R. White:

–Your client… your client would have… would have scheduled it.

Michael J. Schroeder:

–Would have filed and mended.

Byron R. White:

Exactly.

Michael J. Schroeder:

Proof of claim for the deficiency after foreclosure.

Byron R. White:

And that would be discharged.

Michael J. Schroeder:

If the last payment fell within the 3 or 5 year period–

Byron R. White:

Yeah.

Michael J. Schroeder:

–Of the Code… of the plan.

John Paul Stevens:

May I just be sure I understood one of your answers to Justice Scalia.

Assume the hypothetical, the second mortgage in this case in which the first mortgage is undersecured, is the person who holds the second mortgage… does he have a secured or an unsecured claim?

Michael J. Schroeder:

When he comes into the bankruptcy proceeding before there’s any claim determination or any action by the debtor, that creditor holds a security agreement or mortgage on property that is the debtor’s that becomes property of the estate when the debtor files bankruptcy.

At that point in time, he’s a secured creditor.

He is a creditor who has security.

His security may be nothing.

His security may be 0, or–

Anthony M. Kennedy:

All right, but then go to 506.

Under 506(a), is he a secured creditor?

Michael J. Schroeder:

–Under 506(a), I believe he’s a secured creditor only where he falls within the protection of the 1322(b)(2).

Now, a debtor in bankruptcy has the opportunity in an adversary proceeding under bankruptcy rule 7001 to bring an action to determine the extent, validity of a… of a lien or of a claim.

Anthony M. Kennedy:

Well, but it seems to me your argument is circular, because of… (b)(2) does not apply except to the holders of secured claims.

And under 506(a), he’s not secured in any degree.

So it seems to me perfectly plausible–

Michael J. Schroeder:

He–

Anthony M. Kennedy:

–To read (b)(2) as applying to someone who has a… a holder who has some portion of his claim secured.

Michael J. Schroeder:

–That–

Anthony M. Kennedy:

But in the situations… the cases supposed and put to you by Justice Stevens and Justice Scalia and earlier by me, that is not the case with the second mortgagee.

Michael J. Schroeder:

–Yes, Your Honor, that is a plausible reading of the two statutes together.

Antonin Scalia:

Mr. Schroeder, I’m sure it’s in the interests of your clients to protect the second mortgage as well as the first mortgage.

But, in fact, I can agree with you on the first mortgage here without agreeing with you on the second.

Michael J. Schroeder:

I understand that, Your Honor.

Antonin Scalia:

I can read the word… as Justice Kennedy said, the word, the phrase 506(a).

Michael J. Schroeder:

Your Honor, that may be a plausible reading.

Antonin Scalia:

You would rather… you would want us to go further, but we really don’t have to to agree with you on the first mortgage.

Michael J. Schroeder:

That’s correct.

Antonin Scalia:

Yes.

William H. Rehnquist:

Thank you, Mr. Schroeder.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.