In a positive outcome in the growing debate over “chapter 20” lien stripping, the Eastern District of California found that a debtor may strip off of a wholly unsecured junior lien in chapter 13 even though the debtor was ineligible for discharge because of a prior chapter 7 discharge. Real Time Resolutions v. Frazier, No. 11-290 (E.D. Cal. March 9, 2012) (creditor appealed bankruptcy court’s allowance of lien strip). [Read more…] about Lien Strip Allowed in Chapter 20
Chapter 20 Lien Stripping 8th Circuit
The issue of whether a debtor may strip a wholly unsecured lien in chapter 13 where discharge is unavailable is before the Eighth Circuit Court of Appeals in the case of Keller v. Fisette (In re Fisette), No. 11-3119, after debtor won before the bankruptcy appellate panel. The debtor argues in his brief, filed on December 8, 2011, that Nobelman v. American Sav. Bank, 508 U.S. 324 (1993), has been consistently and correctly interpreted by all the circuit courts addressing the issue to permit strip-off of wholly unsecured liens in chapter 13. Because BAPCPA permits chapter 13 cases even where discharge is unavailable debtors may avail themselves of all the benefits of a chapter 13 case with the exception of discharge upon completion of the case. One of those benefits is stripping of wholly unsecured liens pursuant to section 1322(b).
[Read more…] about Chapter 20 Lien Stripping 8th Circuit
Fisette v. Keller, No. 11-6012 (B.A.P. 8th Cir.)
Type: Debtor’s Brief
Date: August 29, 2011
Description: Whether wholly unsecured lien may be stripped off in chapter 20
Result: Reversed. Debtor won.
8th Cir. BAP Allows Strip Off in No-Discharge 13
Today the Bankruptcy Appellate Panel for the Eighth Circuit reversed a Minnesota Bankruptcy Court in Fisette v. Keller, No. 11-6012, and that a debtor may strip off wholly underwater junior mortgages when the debtor is not eligible for a discharge in chapter 13. Prior to Fisette, the bankruptcy courts in the District of Minnesota had disallowed the strip of of underwater mortgages even when the debtor was eligible for a discharge. See the decision here.
Goldgar Approves Lien Stripping without Discharge
On June 24, 2011, Judge Goldgar from the Bankruptcy Court for the Northern District of Illinois agreed with a growing number of courts that have concluded a discharge is not necessary to strip off a wholly underwater junior mortgage. There is no written decision, but a copy of the transcript is available here. The case is Anderson v. Harris, No. 10-A-02467 (Bankr. N.D. Ill.)