461 B.R. 581
9th Cir. BAP2011Background
- Debtor filed Chapter 13 to prevent foreclosure on her principal residence in Oregon; loan refinanced in 2007 with a security instrument requiring residence as principal residence for one year.
- Debtor was absent from the Property after July 2009 due to caregiving for her mother; lender deemed property abandoned and proceeded with foreclosure.
- Original Plan (Dec 2010) sought cramdown of the lender’s secured claim under §1322(b)(2) based on the 1-year occupancy provision and valued the Property at $148,500.
- Bankruptcy court denied confirmation of the Original Plan, holding the principal-residence status for anti-modification purposes determined at loan-transaction date; referenced Abdelgadir for petition-date rule.
- Amended Plan (Feb 2011) provided for regular postpetition payments to cure arrears and no cramdown; the court confirmed this plan.
- Debtor appeals, arguing the correct determinative date is the petition date for §1322(b)(2) purposes; the Panel agrees and reverses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Date to determine principal residence under §1322(b)(2) | Benafel—petition date governs | One West—loan-transaction date governs | petition date controls |
Key Cases Cited
- Nobelman v. Am. Sav. Bank, 508 U.S. 324 (1993) (anti-modification purpose in 1322(b)(2))
- Scarborough v. Chase Manhattan Mortg. Corp. (In re Scarborough), 461 F.3d 406 (2006) (view on when security interest is analyzed)
- In re Dean, 319 B.R. 474 (2004) (valuation/plan confirmation timing)
- In re Crain, 243 B.R. 75 (1999) (valuation vs. existence of claim; timing of determination)
- In re Smart, 214 B.R. 63 (1997) (last-antecedent/anti-modification interpretation)