SANTANDER CONSUMER USA INC v. BROWN
Filing
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ORDER On Appeal. The decision of the Bankruptcy Court is HEREBY AFFIRMED. Ordered by Judge C. Ashley Royal on 6/21/2013. (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
IN THE MATTER OF
:
SANTANDER CONSUMER USA
:
INC., as assignee of Thor Credit Corp., :
:
Appellant,
:
:
v.
:
:
No. 5:13‐CV‐68 (CAR)
PHILLIP JEFFERSON BROWN,
:
Bankruptcy Appeal
:
Appellee.
:
___________________________________ :
ORDER ON APPEAL
Before the Court is an appeal from the decision of the United States Bankruptcy
Court for the Middle District of Georgia, Macon Division. On appeal, Appellant‐
Creditor Santander Consumer USA Inc., as assignee of Thor Credit Corp., contends that
the Bankruptcy Court erred in concluding that 11 U.S.C. § 506(a) applied to the
valuation of a non‐910 vehicle upon Appellee‐Debtor Phillip Jefferson Brown’s
voluntary surrender of the vehicle pursuant to 11 U.S.C. § 1325(a)(5)(C). Having
considered the record of the lower court, the briefs filed by both parties, and the
relevant case law, the Court agrees with the findings and conclusions of the United
States Bankruptcy Court. Accordingly, the decision of the Bankruptcy Court is
HEREBY AFFIRMED.
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I.
Background
On July 28, 2007, Appellee‐Debtor purchased a 37‐foot, 2006 Keystone 345‐S RV
(the “RV”) from Midstate RV Center.1 On July 16, 2012, more than 910 days after
purchasing and financing the RV, Appellee filed for bankruptcy.2 Appellant‐Creditor
asserts a claim in the amount of $36,587.33, secured by a first lien on Appellee’s RV.3
Appellee’s initial Chapter 13 plan provided for surrender of the RV to
Appellant.4 Accordingly, on August 6, 2012, Appellant filed a motion for relief from the
stay seeking to repossess the RV and to exercise its other remedies consistent with the
plan.5 The parties subsequently entered a consent order docketed on September 4, 2012,
granting Appellant relief from the stay and authorization “to recover and dispose of the
[RV] in accordance with state law.”6 The order did “not prejudice [Appellee’s] right to
modify the Plan to provide for surrender of the [RV] to [Appellant] in full satisfaction of
the debt.”7 Consistent with this provision, Appellee filed a modified plan, that
proposed to surrender the RV in “full satisfaction of [Appellant’s] claim.”8
Security Agreement, Doc. 18‐1 [Doc. 1‐1 at 58].
Ch. 13 Voluntary Petition, Doc. 1 [Doc. 1‐1 at 21].
3 Id. [Doc. 1‐1 at 9].
4 Initial Ch. 13 Plan, Doc. 2 [Doc. 1‐1 at 51].
5 Mtn. for Relief from Stay, Doc. 18 [Doc. 1‐1 at 55].
6 Consent Order, Doc. 21 [Doc. 1‐1 at 67]. Appellee thereafter surrendered the RV to Appellant.
7 Id.
8 Mod. Ch. 13 Plan, Doc. 20 [Doc. 1‐1 at 63].
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Appellant objected to confirmation of Appellee’s proposed modified plan on
grounds that the plan did not comply with 11 U.S.C. § 1325(a)(5)(C).9 Specifically,
Appellant contended that Appellee could not surrender the RV in full satisfaction.10
Rather, Appellant contended that it had the right to sell the RV pursuant to state law
and the security agreement, apply the proceeds of the sale to the debt, and then assert
an unsecured deficiency claim for any balance remaining.11
In its order, the Bankruptcy Court overruled Appellant’s objection to hold that
Appellee “can use § 506(a) to value the RV and require the creditor to recognize the
value upon surrender of the RV under § 1352(a)(5)(C).”12 The court further concluded
that the proper standard of value to be applied to the surrendered RV was the
replacement value as of the date of the filing of the petition.13 In the instant appeal,
Appellant challenges the court’s decision to value the RV under § 506(a).14
Obj. to Conf. of Mod. Ch. 13 Plan, Doc. 23 [Doc. 1‐1 at 68‐71]; Brief in Support, Doc. 26 [Doc. 1‐1 at 76].
Obj. to Conf. Mod. Ch. 13 Plan, Doc. 23 [Doc. 1‐1 at 68‐71]; Brief in Support, Doc. 26 [Doc. 1‐1 at 76].
11 Obj. to Conf. Mod. Ch. 13 Plan, Doc. 23 [Doc. 1‐1 at 68‐71]; Brief in Support, Doc. 26 [Doc. 1‐1 at 76].
12 In re Brown, No. 12‐51926‐JPS, 2012 WL 6021469, at *5 (M.D. Ga. Dec. 4, 2012) [Doc. 1‐1 at 109].
13 Id.
14 In its Reply, Appellant argues, for the first time, that even if § 506(a) does apply, the lower court erred
in finding that the replacement value was the proper standard of value. Reply Br. at 2 [Doc. 6].
However, as the Eleventh Circuit “ha[s] repeatedly admonished, arguments raised for the first time in a
reply brief are not properly before a reviewing court.” Herring v. Sec’y Dep’t of Corr., 397 F.3d 1338, 1342
(11th Cir. 2005) (quotations omitted). Notwithstanding, because the Court concludes below that § 506(a)
is applicable to the valuation of a non‐910 surrendered vehicle, replacement value is the proper standard
of value for the RV pursuant to § 506(a)(2).
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II.
Legal Standard
“In reviewing bankruptcy court judgments, a district court functions as an
appellate court.”15 This Court “reviews the bankruptcy court’s legal conclusions de
novo, but must accept the bankruptcy court’s factual findings unless they are clearly
erroneous.”16 The instant appeal involves only the Bankruptcy Court’s conclusions of
law. There are no facts in dispute, nor did the court make any findings of fact that are
clearly erroneous. Consequently, the only applicable standard of review is de novo.
III.
Discussion
Chapter 13 of the Bankruptcy Code provides a reorganization remedy for
consumers and business proprietors with small debts.17 Bankruptcy courts are
obligated to review Chapter 13 plans for compliance with the Code.18 Before a
bankruptcy court can confirm a Chapter 13 plan, it must ensure that the plan complies
with the requirements set forth in 11 U.S.C. § 1325(a).19 Pursuant to § 1325(a), “the
plan’s treatment of an ‘allowed secured claim’ will be confirmed if (1) the creditor
accepts the plan [§ 1325(a)(5)(A)]; (2) the debtor retains the property and makes
payments on the claim [§ 1325(a)(5)(B)]; or (3) the debtor surrenders the property to the
creditor [§ 1325(a)(5)(C)].”20
In re JLJ, Inc., 988 F.2d 1112, 1113 (11th Cir. 1993).
Id.
17 DaimlerChrysler Fin. Servs. Ams. LLC v. Barrett (In re Barrett), 543 F.3d 1239, 1242 (11th Cir. 2008).
18 Id.
19 Id.
20 Id. (quoting 11 U.S.C. § 1325(a)).
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The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
(“BAPCPA”)21 changed, in part, the way certain secured claims are handled by a debtor.
Under pre‐BAPCPA law, if a Chapter 13 debtor retained the property under §
1325(a)(5)(B), “the debtor would be allowed to keep the collateral over objection of the
creditor and satisfy the debt by making monthly payments equal to its present market
value instead of the remaining balance of the loan.”22 This is commonly known as
“cram‐down.”23 If, however, a debtor surrendered the property under § 1325(a)(5)(C),
“the creditor could pursue an unsecured deficiency claim if it had a right to collect a
deficiency under applicable nonbankruptcy law.”24 “That deficiency [was] considered
an unsecured claim under § 506(a).”25
Pre‐BAPCPA § 506(a) bifurcated secured claims into unsecured and secured
portions based on the value of the collateral, without regard for when such collateral
was purchased.26 Although pre‐BAPCPA § 1325(a)(5)(B) (retention) and pre‐BAPCPA §
Pub. L. 109‐8, 119 Stat. 23 (April 20, 2005).
In re Barrett, 543 F.3d at 1242 (citing Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 957 (1997)).
23 Id. “It is called ‘cram‐down’ because … the bankruptcy court in effect ‘crams down the creditor’s throat
the substitution of money for the collateral, a situation that creditors usually oppose because the court
may underestimate the collateral’s market value and the appropriate interest rate, and the debtor may fail
to make all promised payments, so that the payment stream falls short of the collateral’s full value.’” Id.
at 1242 n.2 (quoting In re Wright, 492 F.3d 829, 830 (7th Cir. 2007)).
24 Id. at 1242 (citing Rash, 520 U.S. at 957).
25 In re Miller, 570 F.3d 638, 636 (5th Cir. 2009).
26 11 U.S.C. § 506 (2004); In re Brown, 346 B.R. 868, 872 (N.D. Fla. 2006).
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1325(a)(5)(C) (surrender) provided different remedies and were mutually exclusive,
both relied upon pre‐BAPCPA § 506(a) to bifurcate a creditor’s claim.27
The subsequent enactment of BAPCPA changed the foregoing with respect to
some claims by distinguishing between “910 vehicles,” or vehicles that had been
purchased within 910 days of filing for bankruptcy, and “non‐910 vehicles,” or those
vehicles that had been purchased more than 910 is known by federal courts as a
“hanging paragraph.”28 In general, courts have interpreted the hanging paragraph to
render the valuation provision of § 506(a) inapplicable to a 910 vehicle claim.29
Specifically, when a debtor retains a 910 vehicle, the debtor “must now pay the entire
claim and [the claim] is to be treated as fully secured.”30 When a debtor surrenders a
910 vehicle, the creditor may pursue a deficiency claim governed by the parties’
contractual entitlements and obligations under state law.31 In both circumstances, § 506
is inapplicable to the valuation of the 910 vehicle.
The issue presently before the Court, however, pertains to a non‐910 vehicle:
whether a debtor can surrender a non‐910 vehicle pursuant to § 1325(a)(5)(C) in full
See Rash, 520 U.S. at 962‐63.
11 U.S.C. § 1325(a)(*); In re Barrett, 543 F.3d at 1242. “The section in question has been called the
hanging paragraph because, although it is set forth as a subparagraph following 11 U.S.C. § 1325(a)(9), it
is not separately designated by letter or number. Rather, it just ‘hangs’ without ordered designation and
without surrounding context. It has been variously referred to by courts as Section 1325(a)(9), Section
1325(a)(*), and as a ‘hanging paragraph.’” In re Barrett, 543 F.3d at 1241 n.1.
29 See, e.g., id. at 1243.
30 Id.
31 Id. at 1246‐47.
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satisfaction of the debt, the value of which can be determined pursuant to § 506(a).32
Appellant argues that the Bankruptcy Court erred in applying § 506(a) to value a non‐
910 vehicle surrendered by a debtor under § 1325(a)(5)(C). Instead, Appellant contends
that state law governs the rights and obligations of the parties because the Code is silent
with respect to the valuation of a non‐910 vehicle surrendered by a debtor. In essence
then, if the Court were to adopt Appellant’s position, it would be treating non‐910
vehicles surrendered under § 1352(a)(5)(C) as if they were 910 vehicles. As discussed
below, such a position is both contrary to pre‐BAPCPA law and congressional intent.
Appellant first asserts that the Bankruptcy Court misinterpreted the Supreme
Court’s decision in Associates Commercial Corp. v. Rash,33 a pre‐BAPCPA case, by
applying § 506(a) to valuation of surrendered vehicles when, as Appellant argues, the
Supreme Court only espoused the applicability of § 506(a) to retained, not surrendered,
vehicles. The Court disagrees.
In Rash the Supreme Court considered the debtor’s two choices under the Code,
surrender or retention, and then considered the respective consequences of those
choices on the secured creditor.34 If a debtor chose to surrender the property, the
secured creditor would have liquidated the property and received the property’s
Although initially disputed in the lower court, it is undisputed that Appellee’s surrender of the RV is
governed by § 1325(a)(5)(C).
33 520 U.S. 953 (1997).
34 Id. at 962‐64.
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liquidation, or foreclosure, value.35 Alternatively, if a debtor chose to instead retain, or
use, the property, the secured creditor was exposed to “double risks,” and consequently
liquidation value would “[in]accurately gauge[ ] the debtor’s use of the property.”36
Thus, in instances of retention, replacement value was the proper valuation standard.37
While the ultimate issue in Rash concerned the valuation of a retained vehicle,
the Court nevertheless premised its conclusion on the distinction between the valuation
of retained and surrendered property.38 In doing so, the Supreme Court implied the
applicability of § 506(a) to surrendered vehicles.39 The Eleventh Circuit subsequently
recognized this application, noting that “Section 506(a) applied to both retention and
surrender of collateral pre‐BAPCPA.”40 Because nothing in BAPCPA changes the pre‐
BAPCPA practice with respect to non‐910 vehicles, a point that Appellant does not
dispute, the Court concludes that a debtor can use § 506(a) to value a non‐910 vehicle
upon surrender under § 1325(a)(5)(C).41
Id. at 962‐63.
Id. at 963.
37 Id. at 963‐64.
38 Id.
39 Id.
40 In re Barrett, 543 F.3d at 1242.
41 See, e.g., In re Long, 519 F.3d 288, 293 (6th Cir. 2008) (noting that in pre‐BAPCPA cases, “[t]he surrender
of the collateral satisfied the allowed secured claim in full leaving the undersecured creditor with a
deficiency that could only be asserted as a general unsecured claim”); In re Harris, No. 288‐0020, 1989 WL
1717341, at *2 (S.D. Ga. Jan. 26, 1989) (noting in a pre‐BAPCPA case that “[d]ebtors routinely propose to
surrender collateral in full satisfaction of debt”); In re Barclay, 276 B.R. 276, 279 (N.D. Ala. 2001) (“Since
the secured claim is based upon the value, any surrender would necessarily pay the secured claim in
full.”); In re Johnson, 247 B.R. 904, 906 (N.D. Ga. 1999). Because the Court reaches the instant conclusion
without regard to Appellant’s argument that the Court mistakenly applied a Chapter 11 standard to a
Chapter 13 case, the Court need not address Appellant’s argument with respect to this point.
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Moreover, the Court disagrees with Appellant that the Code is silent with respect
to valuation of a surrendered non‐910 vehicle. BAPCPA expressly sets forth the
valuation method for a non‐910 claim in Chapter 7 and 13 cases:
If the debtor is an individual in a case under chapter 7 or 13, such value
with respect to personal property securing an allowed claim shall be
determined based on the replacement value of such property as of the
date of the filing of the petition without deduction for costs of sale or
marketing. With respect to property acquired for personal, family, or
household purposes, replacement value shall mean the price a retail
merchant would charge for property of that kind considering the age and
condition of the property at the time value is determined.42
Consequently, because the Code is not silent on the valuation of a surrendered non‐910
vehicle, state law does not control.43
The Court’s conclusion is consistent with Congress’s intention in BAPCPA to
protect 910 claims.44 The hanging paragraph, which renders § 506(a) inapplicable to 910
vehicles, explicitly distinguishes between vehicles purchased within 910 days and
vehicles purchased more than 910 days before filing bankruptcy.45 Treating a non‐910
vehicle as though it were a 910 vehicle ignores this explicit textual distinction and
11 U.S.C. § 506(a)(2).
See, e.g., In re Butner, 440 U.S. 48, 54 (1979) (“Congress has generally left the determination of property
rights in the assets of a bankrupt’s estate to state law.”).
44 See In re Dean, 537 F.3d 1315, 1318 (11th Cir. 2008) (noting that Congress intended to protect 910 claims
from the “abusive and unfair” practices resulting from cram‐down).
45 11 U.S.C. § 1352(a)(5)(*) (“For purposes of paragraph (5), section 506 shall not apply to a claim
described in that paragraph if the creditor has a purchase money security interest securing the debt that is
the subject of the claim, the debt was incurred within the 910‐day period preceding the date of the filing
of the petition, and the collateral for that debt consists of a motor vehicle … acquired for the personal use
of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred
during the 1‐year period preceding that filing.”); In re Dean, 537 F.3d at 1318.
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congressional intent to treat 910 vehicles differently. In this respect, Appellant’s
argument that federal courts unanimously do not permit bankruptcy debtors from
surrendering collateral in full satisfaction of a debt is without merit, as all the cases cited
by Appellant concern 910 vehicles.46 The issue here is a non‐910 vehicle, and
consequently, those holdings are not controlling.
To the extent Appellant contends that § 506(a) does not apply because Appellant
is in possession of the RV, this argument is also without merit. Possession alone does
not terminate the interest of the estate.47 Moreover, because the plan had yet to be
confirmed, the applicability of § 506(a) is unaffected.48
IV.
Conclusion
The Court, having reviewed the applicable law and the arguments of the parties,
agrees with the decision of the Bankruptcy Court. Accordingly, it is HEREBY
ORDERED that the decision of the Bankruptcy Court be AFFIRMED.
SO ORDERED, this 21st day of June, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH/bbp
For a complete list of citations, see Appellant’s Brief at 12‐14 [Doc. 3].
See Motors Acceptance Corp. v. Rozier (In re Rozier), 376 F.3d 1323, 1324 (11th Cir. 2004).
48 See 11 U.S.C. § 506(a); In re Simmons, 765 F.2d 547, 553 (5th Cir. 1985); B.R. M.D. Ga. L.R. 3012‐1.
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