Roberts-Dude v. JP Morgan Chase Bank, N.A.Roberts-Dude v. JP Morgan Chase Bank, N.A.
ORDER AFFIRMING BANKRUPTCY COURT ORDER
This mаtter is before the Court on Appellant Denise Roberts-Dude’s appeal of
I. Background
Appellee JP Morgan Chase Bank, N.A. (“Chase”), holds a third mortgage lien in the approximately amount of $519,000.00 on property located at 1450 Enclave Circle, Royal Palm Beach, Florida, (the “Property”), the residence of Appellant Denise Roberts-Dude. The Property is also encumbered by a first mortgage in favor of Wells Fargo Bank, N.A., in the amount of $769,264.66 and a second mortgage in favor оf Wells Fargo Bank, N.A., in the amount of $142,186.28.
During Chapter 11 bankruptcy proceedings, Appellant and Debtor Roberts-Dude filed her Motion to Value Pursuant to 11 U.S.C. § 506(a) and to Bifurcate Pursuant to 11 U.S.C. § 506(d) (“Motion to Bifurcate”). In her Motion to Bifurcate, Roberts-Dude submitted evidence that the value of the Property at that time was $860,000.00. In view of the fact that more than that amount remained due and owing to Wells Fargo on the first two mortgages alone, Roberts-Dude invoked 11 U.S.C. §§ 506(a) and (d) and sought to bifurcate the creditors’ claims and strip off the entire unsecured lien of Chase, so it could be treated as a general unsecured claim.
The Property in this case is the subject of a number of purported deeds. On August 20, 2004, the Property was deeded from other parties to Roberts-Dude’s husband, Harald Dude, as a single man. See D.E. 2-3 at 105.
On September 6, 2006, Dude recorded a “Corrective Quit-Claim Deed” listing the owners as himself and his “wife as tenancy by the entireties with right of survivor-ship.” Id. at 104. A new deed was again recorded on February 5, 2007. See id. at 100. The February 5, 2007, deed was between “HARALD DUDE AND DENISE ROBERTS DUDE, his wife as tenants by the entireties with right of surviv-orship,” as “Grantor,” and Roberts-Dude as “Grantee.” Id. It provides that “the [G]rantor ... has granted, bargained and quitclaimed to the ... Grantee and Grantee’s heirs and assigns forevеr 96% of [the Property]....” Id.
Finally, on April 22, 2011, the last purported deed was recorded. This deed was between “HARALD DUDE and DENISE DUDE, husband and wife,” as “Grantors,” and “DENISE ROBERTS DUDE, a married woman, AS TO AN UNDIVIDED NINETY-EIGHT PERCENT (98%) INTEREST, and HARALD DUDE and DENISE DUDE, husband and wife, AS TO AN UNDIVIDED TWO PERCENT (2%) INTEREST ...,” as “Grantees.” Id. at 101. In this deed, “Grantors ... granted, bargained and quitclaimed to ... Grantees and Grantees’ heirs and assigns forever” the Property. Id. A handwritten legend across the top of this deed states, “Re-recording to include notary and acknowledgment — original OR. BK. 21387,
In support of her Motion to Bifurcate, Roberts-Dude submitted her own Affidavit and the Affidavit of her husband. In her own Affidavit, Roberts-Dude averred that as of April 22, 2011, she has held “an undivided 98% interest in the [Property] with the balance of 2% being held as an ‘undivided interest’ with [Dude] but not as tenants by the entireties.” Id. at 98. Roberts-Dude further attested that the Property “is intentionally not held as [tenants by the entirety] as is evidenced in the public records as well as not having the unities of possession, interest, title, time or survivorship.” Id. at 99.
Similarly, Dude states in his Affidavit that in executing the February 5, 2007 deed, he “specifically and intentionally omitted ownership by tenancy by the en-tireties or rights of survivorship.” Id. at 104. He further asserts that in executing the April 22, 2011, deed, he “specifically and intentionally omitted ownership by tenancy by the entireties or rights of sur-vivorship” and that the Property “is not held as tenancy by the entireties and does not enjoy the unities of possession, interest, title, time or survivorship.” Id.
After reviewing the deed history for the Property and the Affidavits, the Bankruptcy Court reached the following conclusions:
The debtor argues that the two percent interest granted to the debtor and her husband in this last deed, let’s assume it’s void, is not tenancy by the entirety, meaning that they are now holding as joint tenants.
But Florida law provides that any grant of real property to a married couple is presumed tenants by the entirety unless the instrument itself indicates otherwise. This instrument does not indicate otherwise.
The affidavits of the debtor and her husband do not change the effect of the deed under Florida law. It doesn’t matter what they say after the fact. We look at the instruments themselves in the real estate record to see what parties hold and what the nature of their estate is.
It also does not matter that prior deeds specifically said it was tenants by the entirety in order again, for this not to be an interest in tenants by entirety in two percent of the overall fee estate in the property they would have to negate that provision.
So as of the petition date on June 17th, 2011, Mr. Dude still held, with the debt- or, an undivided interest in two percent of the subject property as tenants by the entirety. It doesn’t matter how small this is. That two percent interest is sufficient to trigger the case law that I cited earlier. It is not possible for this Court to strip off the JP Morgan Chase lien, and so the motion will be denied.
Id. at 26-27.
After the Bankruptcy Court issued its Order on the Motion to Bifurcate, Roberts-Dude converted her bankruptcy from proceedings under Chapter 11 to proceedings under Chapter 7. In view of this development, Chase contends that Roberts-Dude’s appeal has become moot since, according to Chase, the strip-down mechanism under Sections 506(a) аnd (d) is not available under Chapter 7.
II.Jurisdiction
Federal courts are courts of limited jurisdiction. Federated Mut. Ins. Co. v. McKinnon Motors, LLC,
Here, Roberts-Dude properly seeks review under 28 U.S.C. § 158(a)(1). D.E. 1 at 1. Roberts-Dude timely filed this appeal, and, except for Chase’s contention that the issue on appeal has become moot, the parties do not dispute jurisdiction. This Court has agrees that it enjoys jurisdiction.
III.Legal Standards
In reviewing bankruptcy-court judgments, a district court functions as an appellate court. In re JLJ Inc.,
In contrast, the legal conclusiоns by the Bankruptcy Court are reviewed de novo. In re Club Assoc.,
IV.Discussion
A. This Appeal Is Not Moot
Chase suggests that the conversion of the bankruptcy case from a Chapter 11 proceeding to a Chapter 7 proceeding after the Bankruptcy Court entered the Order on the Motion to Bifurcate renders this appeal moot because the strip-off relief that Roberts-Dude seeks under Sections 506(a) and (d) is not available in Chapter 7 proceedings. In support of this position,
Since Chase filed its brief, however, the Eleventh Circuit has issued its final version of In re McNeal as a published opinion in the Federal Reporter. See id., — F.3d -,
In In re McNeal, the Eleventh Circuit noted that “[a] few bankruptcy court decisions within [the Eleventh Circuit] ... have treated Folendore as abrogated by Dewsnup.... ”
“Under our prior panel precedent rule, a later panel may depart from аn earlier panel’s decision only when the intervening Supreme Court decision is ‘clearly on point.’ ” Atl. Sounding Co., Inc. v. Townsend,496 F.3d 1282 , 1284 (11th Cir.2007). Because Dewsnup disallowed only a “strip down” of a partially secured mortgage lien and did not address a “strip off’ of a wholly unsecured lien, it is not “clearly on point” with the facts in Folendore or with the facts at issue in this appeal.
Although the Supreme Court’s reasoning in Dewsnup seems to reject the plain language analysis that we used in Folen-dore, “ ‘[t]here is, of course, an important difference between the holding in a case and the reasoning that supports that holding.’ ” Atl. Sounding Co., Inc.,496 F.3d at 1284 [ (citation omitted) ]. “[T]hat the reasoning of an intervening high court decision is at odds with that of our prior decision is no basis for a panel to depart from our prior decision.” Id. “As we have stated, ‘[ojbedience to a Supreme Court decision is one thing, extrapolating from its implications a holding on an issue that was not before that Court in order to upend settled circuit law is another thing.’ ” Id. In fact, the Supreme Court — noting the ambiguities in the bankruptcy codе and ... “the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations”— limited its Dewsnup decision expressly to the precise issue raised by the facts of the case.112 S.Ct. at 778 .
Id., — F.3d at -. In view of the binding precedent that In re McNeal and Folendore represent, the Court cannot conclude that the conversion of the proceedings in this case to occur under Chapter 7 precludes the strip-off relief that Roberts-Dude seeks with regard to the Chase third mortgаge. Accordingly, this appeal is not moot.
B. The Bankruptcy Court Did Not Err
Roberts-Dude contends that no part of the Property is owned by Roberts-Dude
With regard to the deed history, Roberts-Dude argues that the omission of the phrase “tenаnts by the entirety” from the 2007 and 2011 conveyances demonstrates the intent of Roberts-Dude and her husband that they no longer possess the Property in any part as tenants by the entirety. She points to the Affidavits as further evidence of the intent in 2007 to cease holding the Property as tenants by the entirety.
A review of the 2007 and 2011 deeds reveals that, while neither deed expressly states that the Property is deeded in any part to Roberts-Dude and Dude as tenants by the entirety, nor does either deed expressly provide that the Property is not deeded to Roberts-Dude and Dude as tenants by the entirety. Moreover, the 2007 deed, which states that it is between Roberts-Dude and Dude “as tenants by the entireties,” as “Grantor,” and Roberts-Dude as “Grantee,” conveys only 96% of the Property to Roberts-Dude and does not purport to make any changes to the remaining 4% of the Prоperty expressly identified as being held by Roberts-Dude and her husband as “tenants by the entire-ties.” Thus, contrary to the contentions of Roberts-Dude and Dude in their Affidavits, the actual language of the 2007 deed conveys an intention to retain 4% of the Property to continue to be held by Roberts-Dude and Dude as “tenants by the entireties.”
As for the 2011 deed, the handwritten legend on the top of the deed claims that the deed was executed as a “re-recording to include notary and acknowledgment” of the 2007 deed. That, in and of itself, suggests that no material change was intended by the 2011 deed. On the other hand, despite this language, the 2011 deed quitclaims an undivided 98% interest to Roberts-Dude, as opposed to the 96% interest under the 2007 deed, and, instead of remaining silent with regard to the remaining 2% of the Property, the deed purports to convey “an undivided ... 2% ... interest” to “Harald Dude and Denise Dude, husband and wife.”
Thus, the Court must determine (1) whether the language in the 2011 deed, in light of the deed history, reflects the existence of a tenancy by the entirety with regard to the 2%, and, if so, (2) whether the Court may consider any evidence outside the documents themselves in evaluating whether, under the 2011 deed, 2% of the Property is held by Roberts-Dude and her husband as tenants by the entirety. In analyzing these issues, the Court observes first that the nature of a debtor’s interest in property is determined by state law. In re Sinnreich,
Under Florida law, where real property is owned by a husband and wife, “the ownership in the name of both spouses vests title in them as tenants by the entireties.” Beal Bank SSB v. Almand & Assocs.,
As the Bridgeview Bank Court explained, if a rebuttable presumption applied to the title of real property, substantial problems with titles would result: “Which title insurer could feel secure in insuring property having a conveyance to a husband and wife in the chain of title, if that title could be rebutted by evidence extrinsic to the deed itself? The integrity of the title to real property could be called into question when titles could be overturned in litigation by rebuttable presumptions.”
These Florida cases clarify that where a deed is titled in the name of two people as husband and wife — even if the deed does not use the phrase “tenancy by the entirety” — the estаte is a tenancy by the entirety, and it matters not what extrinsic evidence may exist of the husband and wife’s contrary intentions in titling the deed in their names as husband and wife. Only in the case of fraud does an exception to this rule exist.
Here, the 2011 deed titles an “undivided ... 2% ... interest” in the Property in the name of “Harald Dude and Denise Dude, husband and wife.” As a result, by its terms, the deed creates a tenancy by the entirety in 2% of the Property. Nor do Roberts-Dude’s and Dude’s Affidavits affect the аnalysis. Under Florida law, unless fraud is involved — and no such allegation exists in this case — extrinsic evidence of the parties’ intentions in titling their property in a certain way is irrelevant to whether the parties, in fact, created a tenancy by the entirety.
Finally, Roberts-Dude’s argument that a partial interest in the Property cannot be held by a tenancy of the entirety lacks merit. In this respect, Roberts-Dude asserts that the Property cannot be held in part by a tenancy of the entirety because such a situation results in the lack of at least one of the six unities required to own property as a tenancy by
The problem with Roberts-Dude’s analysis arises from the fact that Roberts-Dude and her husband do, in fact, share a unity of interests in the 2% interest of the Property. In other words, both Roberts-Dude and Dude enjoy precisely the same interests in the 2% оf the Property deeded to them as husband and wife. Indeed, the deed itself describes the conveyance of an “undivided” interest to Roberts-Dude and Dude as husband and wife.
The fact that 98% of the Property is not held jointly by Roberts-Dude and her husband does not make the 2% that is any less of a tenancy by the entirety. As the Eleventh Circuit’s predecessor court has explained,
“Where real property is conveyed or devised to husbаnd and wife and a third person or persons, the husband and wife, being but one person in law, will together take only an undivided moiety or half of the estate, leaving the other half to the third person, or, if there are two other grantees or devisees, then husband and wife will take[] only one third of the subject matter, and so on in accordance with the number of persons entitled. As between themselves, a husband and wife are tenants by the entirety of their share, but as to the third person they are together a joint tenant or tenant in common with him.... ”
Winchester v. Wells,
V. Conclusion
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the Bankruptcy Court’s Order on appeal is AFFIRMED. The case is DISMISSED. The Clerk of this Court shall CLOSE this case. Any pending motions are DENIED AS MOOT.
DONE and ORDERED.
Notes
. Some filings in the appellate record bear morе than one page-numbering system: the original page number or numbers and the page number imprinted across the tops of each page by the Court's CM/ECF filing system. This Order refers to the page numbers left by the Court's CM/ECF filing system.
. For purposes of his discussion, the Bankruptcy Court assumed without deciding that all of the alleged deed transactions were valid. See D.E. 3 at 23. Chase argues that, in fact, the last two alleged deeds were not valid. The Court does nоt address these arguments here because the Court agrees with the Bankruptcy Court’s analysis that even if the deeds were valid, the Bankruptcy Court properly denied Roberts-Dude's Motion to Bifurcate.
. Like the Bankruptcy Court, this Court assumes without deciding that all deeds discussed in this Order are valid.
. Therefore, the Court need not consider the facts that the Affidavits were executed well after the 2011 deed was recorded and during the bаnkruptcy proceedings, that the notation on the 2011 deed states that the 2011 deed was simply a re-recording of the 2007 deed, or that the 2011 deed employs the term “undivided” to describe Roberts-Dude and Dude’s 2% interest in the Property in evaluating the credibility of the Affidavits. The credibility of the Affidavits simply makes no difference to the analysis. Accordingly, here, where no allegations of fraud have been raised, no evidentiary hearing was required to ascertain whether a 2% interest in the Property is held as a tenancy by the entirety.