OPINION
This bankruptcy appeal presents purely a legal question that has split the bankruptcy and federal district courts, namely, whether a debtor who has filed for Chapter 7 bankruptcy may avoid a valueless hen under § 506(d) of the Bankruptcy Code, 11 U.S.C. § 506(d). Because the Supreme Court’s reasoning in
Dewsnup v. Timm,
I.
Debtors Terry and Lahna Talbert (the “Talberts”) filed an adversary proceeding against Defendant City Mortgage Services (“City Mortgage”) to avoid City Mortgage’s hen on their residence pursuant to 11 U.S.C. § 506(d). Although properly served with process, City Mortgage failed to file an answer or other responsive filing in the bankruptcy court, a strategy to which City Mortgage adhered before the district court, and continues to employ before this court. At the hearing for default judgment, the bankruptcy court raised sua sponte the issue of whether, as a legal matter, § 506(d) permits the “strip off’ of an allowed unsecured hen. 1
For purposes of its analysis, the court accepted as true that at the time of the Talberts’ bankruptcy filing, they owned a residence located in Lansing, Michigan, which had a fair market value of $88,000. The court also accepted that the residence was encumbered by a first mortgage in the amount of $90,633, and that City Mortgage held a junior mortgage in the amount of approximately $33,110. It was thus undisputed that City Mortgage held a “valueless” hen since the Talberts’ property had
*557
a market value that was $2,633 less than the amount of the lien securing the first mortgage. The bankruptcy court concluded that § 506(d) does not permit the “strip off’ of a valueless junior lien from real estate.
See Talbert v. City Mortgage Servs. (In re Talbert),
We have jurisdiction under 28 U.S.C. § 158(d). Of course, the order by the bankruptcy court, affirmed by the district court, that a junior valueless lien is not voidable by a debtor under 11 U.S.C. § 506(d) is a conclusion of law, which we review
de novo. Wesbanco Bank Barnesville v. Rafoth (In re Baker & Getty Fin. Servs. Inc.),
II.
A. City Mortgage’s Failure to File an Appellate Brief
First, we must determine what consequences, if any, City Mortgage faces for not filing a brief in this appeal. Although not a situation we confront often, on a previous occasion, we have addressed the effects of this unhelpful and highly risky form of appellate advocacy:
An initial question presented ... is the effect of appellee Allgeier’s failure to file a brief on appeal. While Allgeier did not file a brief, his counsel was present at oral argument and offered to answer any questions the panel might have. Neither the Federal Rules of Appellate Procedure nor our local rules suggest that an appellee’s failure to file a brief should be penalized by a decision in favor of the appellant. Instead, Fed. R.App. P. 31(c) provides in such a case that “the appellee will not be heard at oral argument except by permission of the court.” See, e.g., H.C. by Hewett v. Jarrard,786 F.2d 1080 , 1083 n. 1 (11th Cir.1986). Our court rules do not address this issue.... While Rule 31(c) also authorizes us to dismiss the appeal where the appellant fails to file a brief to support his burden of persuasion, see id., we believe that an appellee’s failure to file a brief should normally carry with it only the oral argument sanction called for by the Rule. However, we do not address the power of the court to impose additional sanctions should it specifically order the filing of a brief and the appel-lee without adequate reason fails to comply-
Allgeier v. United States,
B. “Strip Off” in Chapter 7
The question of whether a Chapter 7 debtor may use 11 U.S.C. § 506(d) to “strip off’ a valueless junior lien from real property has divided the bankruptcy and federal district courts.
Compare Webster v. Key Bank (In re Webster),
As did the debtors in
Ryan,
the Talberts argue that the secured status of a claim is determined by the security-reducing provision of § 506(a),
2
and that pursuant to this provision, their junior lien is completely unsecured, and, thus, according to § 506(d),
3
may be “stripped off.”
4
See Ryan,
In its analysis, the Court laid out in detail the different readings that could be given to the thorny statutory interpretation question presented by the perceived interplay of §§ 506(a) and 506(d).
See Dewsnup,
Under this construction, “allowed secured claim” “should be read term-by-term to refer to any claim that is, first, allowed,
5
and, second, secured.”
Id.
(footnote added). The Court continued, “[bjecause there is no question that the claim at issue here has been ‘allowed’ pursuant to § 502 of the Code and is secured by a lien with recourse to the underlying collateral, it does not come within the scope of § 506(d), which voids only liens corresponding to claims that have
not
been allowed and secured.”
Id.
(emphasis in original). This reading, the Court explained, “gives the provision the simple and sensible function of voiding a lien whenever a claim secured by the lien itself has not been allowed.”
Id.
at 415-16,
Three considerations constituted the analytical underpinnings of the Court’s holding, namely, that: (1) any increase in the value of the property from the date of the judicially determined valuation to the time of the foreclosure sale should accrue to the creditor; (2) the mortgagor and mortgagee bargained that a consensual lien would remain with the property until foreclosure; and (3) hens on real property survive bankruptcy unaffected.
Id.
at 417-18,
The practical effect of petitioner’s argument is to freeze the creditor’s secured interest at the judicially determined valuation. By this approach, the creditor would lose the benefit of any increase in the value of the property by the time of the foreclosure sale. The increase would accrue to the benefit of the debt- or, a result some of the parties describe as a “windfall.”
We think ... that the creditor’s lien stays with the real property until the foreclosure. That is what was bargained for by the mortgagor and the mortgagee. The voidness language sensibly applies only to the security aspect of the lien and then only to the real deficiency in the security. Any increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor, not to the benefit of the debtor and not to the benefit of *560 other unsecured creditors whose claims have been allowed and who had nothing to do with the mortgagor-mortgagee bargain....
This result appears to have been clearly established before the passage of the 1978 Act. Under the Bankruptcy Act of 1898, a lien on real property passed through bankruptcy unaffected. This Court recently acknowledged that this was so. See Farrey v. Sanderfoot,500 U.S. 291 , 297,111 S.Ct. 1825 , 1829,114 L.Ed.2d 337 (1991) (“Ordinarily, liens and other secured interests survive bankruptcy”); Johnson v. Home State Bank,501 U.S. 78 , 84,111 S.Ct. 2150 , 2154,115 L.Ed.2d 66 (1991) (“Rather, a bankruptcy discharge extinguishes only one mode of enforcing a claim — namely, an action against the debtor in person-am — while leaving intact another— namely, an action against the debtor in rem ”)....
Congress must have enacted the Code with a full understanding of this practice. See H.R.Rep. No. 95-595, p. 357 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6313 (“Subsection (d) permits liens to pass through the bankruptcy case unaffected”).
When Congress amends the bankruptcy laws, it does not write “on a clean slate.” See Emil v. Hanley,318 U.S. 515 , 521,63 S.Ct. 687 , 690-691,87 L.Ed. 954 (1943).... [T]o attribute to Congress the intention to grant a debtor the broad new remedy against allowed claims to the extent that they become “unsecured” for purposes of § 506(a) without the new remedy’s being mentioned somewhere in the Code itself or in the annals of Congress is not plausible, in our view, and is contrary to basic bankruptcy principles.
Id.
at 417-20,
The Supreme Court’s reasoning for not permitting “strip downs” in the Chapter 7 context applies with equal validity to a debtor’s attempt to effectuate a Chapter 7 “strip off.”
See Ryan,
*561
As in the case of a “strip down,” to permit a “strip off’ would mark a departure from the pre-Code rule that real property hens emerge from bankruptcy unaffected. Also, as in the case of a “strip down,” a “strip off’ would rob the mortgagee of the bargain it struck with the mortgagor, i.e., that the consensual hen would remain with the property until foreclosure. In fact, in
Dewsnup,
the Court was persuaded by the creditors’ argument that “ ‘the fresh start’ policy cannot justify an impairment of respondents’ property rights, for the fresh start does not extend to an
in rem
claim against property but is limited to a discharge of personal liability.”
It is true that the Court’s opinion has not escaped scholarly criticism,
see Cunningham,
In the instant ease, the Talberts do not challenge that City Mortgage’s claim is allowed pursuant to § 502. Also, regardless of the fact that the current value of the real property is insufficient to recover City Mortgage’s junior lien, the claim is nonetheless “secured in the ordinary sense, that is, ... [it] is backed up by a security interest in property, whether or not the value of the property suffices to cover the claim.”
Cater,
“Section 506 was intended to facilitate valuation and disposition of property in the reorganization chapters of the Code, not to confer an additional avoiding power on a Chapter 7 debtor.”
Ryan
AFFIRMED.
Notes
. The term "strip off” is used when a junior mortgage is totally unsecured, whereas the term "strip down” is used when a mortgage is partially unsecured and partially secured.
See In re Fitzmaurice,
. Section 506(a) provides in relevant part:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim.
11 U.S.C. § 506(a).
. Section 506(d) provides in pertinent part that "to the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.” 11 U.S.C. § 506(d).
.In the Talberts own words, "[p]ursuant to the definition of a secured claim under 11 U.S.C. § 506(a), a creditor only has a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property.” They continue, "[i]n the case at bar, because of Appellee's default, it is undisputed that the amount of the first mortgage exceeds the value of Appellant’s residence. It therefore cannot be gainsaid that the Appellee does not have a secured claim.”
. A claim or interest is deemed "allowed” if proof thereof is timely filed pursuant to Code § 501, and (1) no objection is made by a party in interest, or (2) the bankruptcy court, after notice and a hearing, determines the validity of the claim, thereby overruling the objection of a party in interest. 11 U.S.C. § 502.
. The bankruptcy court reached this same conclusion, although by different reasoning. According to the bankruptcy court, 11 U.S.C. § 506 is meaningless in Chapter 7 proceedings unless the debtor is redeeming properly and needs § 506(d) to avoid any residual lien the creditor might claim in the property once the allowed secured claim has been paid. Because the Talberts were not redeeming the property, the court reasoned that they could not use § 506(d) to "strip off” City Mortgage’s lien on the property. The bankruptcy court noted that § 506(d) is needed in reorganization proceedings to classify secured claims as allowed or disallowed in order to determine who gets paid. According to the court, however, there is no need for such a determination in a Chapter 7 proceeding because the trustee’s job does not include making distributions to holders of secured claims; a trustee's job in a Chapter 7 proceeding is to distribute property of the estate, defined as the legal or equitable interests of the debtor in the property. 11 U.S.C. § 541. From this definition, the bankruptcy court found that secured claims do not qualify as property of the estate, thus avoiding the need to classify the claims as allowed or disallowed.
After reviewing this question of law de novo, we agree with the district court that the more prudent analytical approach to resolving the "strip-off” question presented in this matter is to affirm on the basis of the statutory interpretation analysis contained in Dewsnup — and on that basis only. We thus express no opinion on the bankruptcy court’s analysis.