U.S. Bank National Association v. Darlene VertulloU.S. Bank National Association v. Darlene Vertullo
Hoffman, U.S. Bankruptcy Appellate Panel Judge.
U.S. Bank National Association, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-8 (“U.S. Bank” or the “Bank“), appeals from two bankruptcy court orders: (1) the order denying its motion for relief from the automatic stay (the “Order Denying Stay Relief“); and (2) the order confirming the amended chapter 13 plan filed by the debtor, Darlene Marie Vertullo (the “Debtor“), as modified in open court (the “Confirmation Order“).1 For the reasons set forth below, we REVERSE both orders and REMAND to the bankruptcy court for further proceedings.
BACKGROUND
I. The Bankruptcy Filings
U.S. Bank was the holder of a mortgage, originally given by the Debtor and James E. Underwood to SLM Financial Corp., on certain real property located in Nashua, New Hampshire (the “Property“). Following the Debtor‘s default in her payment obligations under the note secured by that mortgage, U.S. Bank conducted a foreclosure by public auction on January 11, 2017, at which a third party purchased the Property. No foreclosure deed from the Bank to the third party purchaser was ever recorded in the local land records registry.
On May 9, 2017, about four months after the foreclosure auction, the Debtor filed a petition under chapter 13 of the
The bankruptcy court dismissed that case on March 29, 2018, due to the Debtor‘s failure to make plan payments. The Debtor filed the chapter 13 case from
II. The Motion for Relief from Stay and the Debtor‘s Objection
On May 22, 2018, U.S. Bank filed a motion for relief from the automatic stay pursuant to
Failure to record said deed and affidavit within 60 days after the sale shall render the sale void and of no effect only as to liens or other encumbrances of record with the register of deeds said county [sic] intervening between the day of the sale and the time of recording of said deed and affidavit.
The Debtor urged the bankruptcy court to follow In re Beeman, 235 B.R. 519 (Bankr. D.N.H. 1999), in which the court ruled that a foreclosure sale is completed upon recording of a deed, and until that time a debtor mortgagor retained rights in the property. She asked the bankruptcy court to eschew this court‘s holding in TD Bank, N.A. v. LaPointe (In re LaPointe), 505 B.R. 589, 595 (B.A.P. 1st Cir. 2014), that a chapter 13 debtor mortgagor no longer had any rights in the mortgaged property once the auctioneer‘s hammer fell irrespective of when or if a foreclosure deed was recorded.
III. The Amended Chapter 13 Plan and U.S. Bank‘s Objection to Confirmation
In her amended chapter 13 plan (the “Plan“) filed in May 2018, the Debtor proposed to retain the Property, cure pre-petition defaults in the mortgage to U.S. Bank through the Plan, and make regular post-petition payments directly to U.S. Bank. The Bank filed an objection to confirmation of the Plan (the “Objection to Confirmation“), arguing that the Property was no longer part of the bankruptcy estate as it had been sold to a third party at a foreclosure auction. The Debtor countered by reiterating that U.S. Bank had failed to comply with
IV. The Orders
On October 1, 2018, the bankruptcy court entered the Order Denying Stay Relief and a separate order overruling the Bank‘s Objection to Confirmation. In its accompanying memorandum, the court observed that the Motion for Stay Relief and the Objection to Confirmation raised the same legal issue: “whether the Debtor has a sufficient property interest in [the Property] that she may cure defaults under a mortgage that encumbers the Property and which U.S. Bank holds.” In re Vertullo, 593 B.R. 92, 94 (Bankr. D.N.H. 2018). The court answered that question in the affirmative, stating: “[T]he Court finds that the Debtor does have a sufficient interest in the Property and so will deny the
On December 4, 2018, the bankruptcy court entered the Confirmation Order, thereby confirming the Plan as orally modified in open court.4
U.S. Bank timely appealed both the Order Denying Stay Relief and the Confirmation Order. As in the proceedings below, the issue is binary. U.S. Bank insists that LaPointe is correct, while the Debtor urges us to overturn LaPointe and follow Beeman.
JURISDICTION
“Pursuant to
STANDARD OF REVIEW
The Panel reviews the bankruptcy court‘s findings of fact for clear error and its conclusions of law de novo. Jeffrey P. White & Assocs., P.C. v. Fessenden (In re Wheaton), 547 B.R. 490, 496 (B.A.P. 1st Cir. 2016) (citation omitted). “Issues of statutory interpretation are reviewed de novo.” In re LaPointe, 505 B.R. at 593 (citation omitted). The appeal of the Order Denying Stay Relief presents a question of law; so, too, does the appeal of the Confirmation Order. The applicable standard of review pertaining to both orders, therefore, is de novo. See id. (reviewing denial of stay relief de novo); see also Viegelahn v. Essex, 452 B.R. 195, 199 (W.D. Tex. 2011) (stating the standard of review for confirmation orders is de novo); Kronemyer v. Am. Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 919 (B.A.P. 9th Cir. 2009) (“We review de novo contentions that present an issue of law regarding stay relief.“) (citation omitted).
This appeal presents us with the two-fold task of examining the legal principles governing the bankruptcy court‘s orders and determining the extent to which we are bound by our own court‘s precedent in reviewing those orders. We begin with the legal principles.
I. The Relevant Standards Regarding the Order Denying Stay Relief
A. The Automatic Stay, Generally
“Section 362(a)(1) provides that the filing of a bankruptcy petition automatically stays all acts against a debtor and property of the bankruptcy estate, subject to limited exceptions.” In re LaPointe, 505 B.R. at 593 (citing
B. Relief from the Automatic Stay
On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;
(2) with respect to a stay of an act against property . . . , if—
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization[.]
In the First Circuit, “a hearing on a motion for relief from stay is merely a summary proceeding of limited effect, and . . . a court hearing a motion for relief from stay should seek only to determine whether the party seeking relief has a colorable claim to property of the estate.” Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 33 (1st Cir. 1994) (emphasis added). “A colorable claim is one that is legitimate and that may reasonably be asserted, given the facts presented and the current law . . . .” Jin Qing Li v. Rosen (In re Jin Qing Li), BAP No. NC-17-1062-STaB, 2018 WL 1354548, at *4 (B.A.P. 9th Cir. Mar. 12, 2018) (citation omitted) (internal quotation marks omitted). “This is a low threshold: ‘A colorable claim (one seemingly valid and genuine) is not a difficult standard to meet.‘” In re Pansier, No. 18-22297-beh, 2019 WL 1495100, at *4 (Bankr. E.D. Wis. Apr. 3, 2019) (citation omitted).
Here, U.S. Bank sought relief from the automatic stay pursuant to
C. New Hampshire Foreclosure Law
The foreclosure in this case was conducted pursuant to a power of sale clause in the parties’ mortgage agreement.
I. The person selling pursuant to the power shall within 60 days after the sale cause the foreclosure deed, a copy of the notice of the sale, and his affidavit setting forth fully and particularly his acts in the premises to be recorded in the registry of deeds in the county where the property is situated; and such affidavit or a duly certified copy of the record thereof shall be evidence on the question whether the power of sale was duly executed. If such recording is prevented by order or stay of any court or law or any provision of the United States Bankruptcy Code, the time for such recording shall be extended until 10 days after the expiration or removal of such order or stay. If such recording is, in accordance with the provisions of this chapter, made more than 60 days after the sale, the reasons therefor shall be set forth fully and particularly in the affidavit.
II. Failure to record said deed and affidavit within 60 days after the sale shall render the sale void and of no effect only as to liens or other encumbrances of record with the register of deeds for said county intervening between the day of the sale and the time of recording of said deed and affidavit.
III. Title to the foreclosed premises shall not pass to the purchaser until the time of the recording of the deed and affidavit. Upon such recording, title to the premises shall pass to the purchaser free and clear of all interests and encumbrances which do not have priority over such mortgage. In the event that the purchaser shall not pay the balance of the purchase price according to the terms of the sale, and at the option of the mortgagee, the down payment, if any, shall be forfeited and the foreclosure sale shall be void.
The mortgagor‘s state law redemption rights are set forth in
The mortgagor does not have a right of redemption after foreclosure. RSA
479:18, :19 (1992). Even though legal title does not pass until the deed has been recorded, see RSA 479:26, II (1992), “this rule does not change the fact that [the debtor] possessed neither a legal nor an equitable interest in the property once the auctioneer‘s hammer fell and the memorandum of sale was signed.” Abdelhaq v. Pflug, 82 B.R. 807, 810 (Bankr. E.D. Va. 1988); see In re Hazleton, 137 B.R. 560, 562 (Bankr. D.N.H. 1992).
Barrows v. Boles, 687 A.2d 979, 988 (N.H. 1996) (emphasis added).
D. The Bankruptcy Code‘s Cure Provisions—Section 1322
“Subsection 1322(b)(3) broadly permits [a chapter 13] plan to ‘provide for the curing or waiving of any default’ and subsection (b)(5) permits the plan to ‘provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.‘” In re LaPointe, 505 B.R. at 594 (citing
Notwithstanding subsection (b)(2) and applicable nonbankruptcy law . . . a default with respect to, or that gave rise to, a lien on the debtor‘s principal residence may be cured . . . until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law[.]
E. Interpreting § 1322(c)(1)—In re LaPointe
The parties do not dispute that
One line of cases follows the “gavel rule,” holding that the debtor‘s right to cure is cut off once the gavel falls at the foreclosure auction. These courts generally agree that § 1322(c)(1) is clear and unambiguous, and that the term “foreclosure sale” describes a “single, discrete event, and not merely a step in a process culminating in the recordation and delivery of a deed.” In re Medaglia, 402 B.R. 530, 533 (Bankr. D.R.I. 2009) (citing [In re] Connors, 497 F.3d [314, 320 (3d Cir. 2007)]; Cain [v. Wells Fargo Bank, N.A. (In re Cain), 423 F.3d 617, 620 (6th Cir. 2005)]. According to these courts, the property is “sold” at the foreclosure auction, and the delivery of the deed, which customarily happens
after the auction, is simply a ministerial act. Id. These courts also hold that the words “‘conducted in accordance with applicable nonbankruptcy law’ do not expand the cure period according to state-law redemption rights, but rather describe[ ] a foreclosure sale conducted in compliance with (and not in violation of), relevant state law.” Id. (citation omitted). Thus, “if the foreclosure sale did not violate applicable state law, it follows that when the gavel falls, the right to cure no longer exists.” Id. Courts adopting a second approach consider the statutory language to be ambiguous and turn to the legislative history to determine the legislature‘s intent. Courts following this approach focus on the word “sold” in § 1322(c)(1) and hold that the statutory language is intended to cut off the debtor‘s right to cure only when the entire sale transaction is complete under state law. They do not regard a “foreclosure sale” as an event, but instead, part of a process culminating in the delivery and recordation of the deed, with the debtor‘s right to cure surviving until title to the property passes to the purchaser under the relevant state law. The U.S. Bankruptcy Court for the District of New Hampshire adopted this approach in In re Beeman, a 1999 decision upon which the Debtor relies, and which the Bank argues was wrongly decided.
Id. at 595-96 (footnotes omitted).
We conclude that the language of § 1322(c)(1) is clear, unambiguous and needs no interpretation. “The phrase ‘sold at a foreclosure sale’ refers to a sale that occurs at a foreclosure auction.” The additional phrase “conducted in accordance with applicable nonbankruptcy law” is a requirement that the foreclosure was noticed, convened and held in compliance with applicable state laws. “To define the word ‘sold’ as the point at which a deed is transferred to the prevailing bidder subsequent to the date of the auction likewise removes the words ‘foreclosure sale’ from the statute. . . .
Even if we were to conclude that § 1322(c)(1) is ambiguous and that we must look to state law to ascertain when a foreclosure sale “occurs” or is “final,” it is clear that, under New Hampshire law, the foreclosure process is complete as to the mortgagor at the time the gavel falls at the foreclosure auction. See Barrows, 141 N.H. at 393, 687 A.2d 979; see also Calef v. Citibank, N.A., No. 11-cv-526-JL, 2013 WL 653951, at *5 (D.N.H. Feb. 21, 2013)[.]
Id. at 597 (citations omitted).
II. Whether the Bankruptcy Court or this Panel is Bound by LaPointe
There is disagreement among courts regarding the binding effect on bankruptcy courts of bankruptcy appellate panel (“BAP“) decisions. See Muskin, Inc. v. Indus. Steel Co. (In re Muskin, Inc.), 151 B.R. 252, 254 (Bankr. N.D. Cal. 1993) (noting that caselaw regarding the binding nature of bankruptcy appellate panel decisions is “wildly inconsistent“). In declining to follow BAP precedent, one bankruptcy court within this circuit recently stated “[t]he BAP‘s decisions must be given consideration as significant and persuasive authority, but there is no law definitively establishing that the decisions of the BAP are binding on bankruptcy courts within the First Circuit.” In re Smith, 573 B.R. 298, 301 (Bankr. D. Me. 2017) (citing LBM Fin., LLC v. Shamus Holdings, Inc., No. 09-11668-FDS, 2010 WL 4181137 at *2 n.2 (D. Mass. Sept. 28, 2010), and In re Virden, 279 B.R. 401, 409 n.12 (Bankr. D. Mass. 2002)), aff‘d 590 B.R. 1 (D. Me. 2018), aff‘d, 910 F.3d 576 (1st Cir. 2018).
The U.S. Court of Appeals for the First Circuit has stated that it is bound by its earlier decisions, “unless an exception exists to the principles of stare decisis.” United States v. Rodriguez-Pacheco, 475 F.3d 434, 441 (1st Cir. 2007) (citation omitted). It explained:
The doctrine of stare decisis provides that courts must abide by or adhere to cases that have been previously decided and that a legal decision on an issue of law that is contained in a final judgment is binding in all future cases on the court that made the legal decision and all other courts that owe obedience to that court. In other words, the doctrine of stare decisis incorporates two principles: (1) a court is bound by its own prior legal decisions unless there are substantial reasons to abandon a decision; and (2) a legal decision rendered by a court will be followed by all courts inferior to it in the judicial system.
Id. (quoting 3 J. Moore et al., Moore‘s Manual—Federal Practice and Procedure § 30.10[1] (2006)). The First Circuit recognizes two exceptions to the stare decisis rule: (1) when an existing decision is “undermined by controlling authority, subsequently announced, such as an opinion of the Supreme Court, an en banc opinion of the circuit court, or a statutory overruling“; and (2) when “authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind.” Id. at 441-42 (citations omitted) (internal quotation marks omitted).
Stare decisis considerations support our adherence to LaPointe. Neither the Supreme Court nor the First Circuit has issued a decision which overrules or undermines LaPointe. Since LaPointe‘s issuance, the bankruptcy court‘s decision in Vertullo is the only published decision criticizing LaPointe. Nevertheless, it does not offer a sound reason for us to conclude that the LaPointe panel would have changed its collective mind in light of fresh developments dealt with by the bankruptcy court. A review generally of case law post-dating LaPointe yields no compelling reason for this Panel to reverse the position expressed in LaPointe. Furthermore, an examination of relevant statutory authority reveals no change which might prompt a departure from the holding in LaPointe. Accordingly, there is no reason for this Panel to depart from our BAP‘s own precedent on the issue that controls the outcome of this appeal.
III. Assessing LaPointe
The bankruptcy court found fault with three aspects of the LaPointe analysis. We address those criticisms to assess whether the LaPointe panel made a mistake, as the court below suggests.
A. Whether the LaPointe Panel “Misread” Beeman
The bankruptcy court stated:
[I]t was incorrect [for the Panel] to conclude that Beeman “adopted this [second] approach,” which the [P]anel defined as an approach that considers “the statutory language to be ambiguous.” [ ] It is unambiguously clear that Beeman did not find the language of § 1322(c)(1) to be ambiguous[.]
In re Vertullo, 593 B.R. at 97-98 (quoting Beeman, 235 B.R. at 524). This purported “misreading of Beeman,” the bankruptcy court opined, “fogs the rest of” the LaPointe panel‘s legal analysis. Id. at 98.
A close reading of LaPointe, however, reveals that the LaPointe panel never stated that the Beeman court found
B. Whether the LaPointe Panel‘s Legal Reasoning is “Problematic”
The bankruptcy court challenged the meaning the LaPointe panel ascribed to two phrases contained within
[T]he Court finds the LaPointe decision‘s legal reasoning to be problematic. LaPointe concludes that “foreclosure sale” really means “foreclosure auction” and that the last phrase of § 1322(c)(1), “conducted in accordance with applicable nonbankruptcy law,” means only that the “auction” complied with that state law. In coming to this conclusion, the LaPointe panel seems to make the very same error it found in Beeman. It has effectively read the phrase “foreclosure sale” out of the statute and substituted it with “foreclosure auction.” This substitution necessarily narrows the scope of the sentence, as “auction” is a more specific term than “sale.” See Beeman, 235 B.R. at 525 (“Thus, the statutory
language envisions a debtor‘s rights being terminated upon the completed transfer of title and ownership to a buyer through a foreclosure sale. Title and ownership generally pass through foreclosure upon the completion of a process, and not upon the occurrence of a single event such as a foreclosure auction.“). The Court finds the meaning of § 1322(c)(1) clear without any paraphrasing or glossing of terms.
In re Vertullo, 593 B.R. at 98 (citation omitted).
1. The Plain Language of the Statute
We discern no error either in the parsing of
We agree that
2. The Gavel Rule Represents the Majority View
Despite the bankruptcy court‘s criticism, LaPointe‘s interpretation of
A number of gavel rule cases offer particularly insightful reasoning and warrant lengthy quotation to demonstrate that, far from being “dead wrong,” LaPointe was correct in adopting the gavel rule. Within our own circuit, Medaglia‘s reasoning in support of the “gavel rule” and its attendant definition of “foreclosure sale” is especially persuasive:
This Court is most comfortable adopting the majority view on the ground that the language of the statute is clear, unambiguous, and needs no interpretation. I also agree that the term “foreclosure sale” describes a single, discrete event, and not merely a step in a process culminating in the recordation and delivery of a deed. Connors, 497 F.3d at 320; Cain, 423 F.3d at 620. It is not, I think, an extreme position to take, i.e., that the property is sold at the foreclosure sale, and that the deed is customarily not delivered to the purchaser until after the foreclosure sale. Connors, [497 F.3d] at 320-321. The delivery of a foreclosure deed has been described as a “ministerial act, routinely performed, which does not affect the redemption rights of the parties.” Id. at 321 (citation omitted). Further, the words “conducted in accordance with applicable nonbankruptcy law” do not expand the cure period according to state-law redemption rights, but rather describe[ ] a foreclosure sale conducted in compliance with (and not in violation of), relevant state law. Connors, 497 F.3d at 391; Cain, 423 F.3d at 620.
Nowhere does the statute require that the cure rights under [§] 1322 terminate only upon the recordation and delivery of the foreclosure deed. Such language is not part of the statute, and it is not within the Court‘s authority to read the statute as though it were in there. “To define the word ‘sold’ as the point at which a deed is transferred to the prevailing bidder subsequent to the date of the auction . . .
removes the words ‘foreclosure sale’ from the statute.” Crichlow, 322 B.R. at 234. Therefore, if the foreclosure sale did not violate applicable state law, it follows that when the gavel falls, the right to cure no longer exists.
Turning to the statute‘s plain meaning as well as the language of other Bankruptcy
Common parlance draws a distinction between the property being “sold at a foreclosure sale” and the later consummation of that sale and satisfaction of all contingencies required to prevent defeasance of the sale (such as any required court approval of the sale, or expiration of any right of cure that exists after the sale and prior to court approval of the sale, or expiration of any right of redemption). . . . Moreover, this interpretation of § 1322(c)(1) is appropriate in light of Congress having drawn a distinction elsewhere in the Bankruptcy Code between property being sold at a sale and the later consummation of that sale. The drawing of the distinction is found in [ ] § 363(k) which provides:
(k) At a sale under subsection (b) of this section of property that is subject to a lien that secures an allowed claim, unless the court for cause orders otherwise the holder of such claim may bid at such sale, and, if the holder of such claim purchases such property, such holder may offset such claim against the purchase price of such property.
[Emphasis added.] Congress used the term “sale” as meaning the bidding process—not the later consummation of the sale—whereby the property is sold at the § 363 sale to the highest bidder. Section 363(k) contemplates that the act of purchasing the property (via being the high bidder) “at such sale” is distinct from the later act of paying the purchase price (via offsetting the secured creditor‘s claim against the price at which the property was sold). In other words, § 363(k) makes clear that a “sale” is the process of bidding off the property, not the later process of consummating the successful bidder‘s purchase of the property. Once the term “foreclosure sale” is properly construed to mean the bidding process—usually taking the form of a public auction—the phrase “sold at a foreclosure sale” connotes that the bidding has concluded with an entity purchasing the property as a result of being the highest bidder; it does not connote the later time when that purchaser consummates the sale by paying the consideration and
receiving a deed transferring title. Once there is a highest bidder obligated to perform (subject only to any required court approval of the sale), the property has been sold at a foreclosure sale.
In re Bobo, 246 B.R. 453, 456-57 (Bankr. D.D.C. 2000).
In addition to the above-mentioned courts, the Tenth Circuit BAP also provided a convincing policy rationale for interpreting the date of the foreclosure sale as the date that a debtor‘s right to cure is cut off:
Finding that a debtor‘s ability to cure a mortgage default under [§] 1322(b) is terminated under [§] 1322(c)(1) on the date of a foreclosure sale is in accord with the policy of establishing a uniform set of laws governing consumer bankruptcy. It also does not offend the goals of chapter 13 of affording wage earners an opportunity to retain their homes while at the same time providing certain protections to mortgagees. Prior to any foreclosure sale, debtors must be given notice of the sale. By the time of the sale, therefore, the debtors have had a reasonable opportunity to retain their residence by filing chapter 13 and proposing a plan to cure any defaults under their mortgage.
In re McCarn, 218 B.R. at 160 (citations omitted).
Some courts have found ambiguity in the phrase, “that is conducted in accordance with applicable nonbankruptcy law.” . . . We are unpersuaded that the phrase is ambiguous; indeed, to find ambiguity would be to deny the words their plain meaning. The word “that” is a relative pronoun that restricts and, therefore, modifies, the preceding noun, “foreclosure sale.” Thus, when the statute refers to “a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law,” it clearly refers to a foreclosure sale that complies with state-law procedures. See New Castle County v. Hartford Acc. & Indem. Co., 970 F.2d 1267, 1270 (3d Cir. 1992) (“[T]he question is not whether there is an ambiguity in the metaphysical sense, but whether the language has only one reasonable meaning when construed, not in a hypertechnical fashion, but in an ordinary, common sense manner.“). We agree with those decisions that have reached this conclusion without resorting to legislative history. See, e.g., Cain, 423 F.3d at 620; Hric, 208 B.R. at 25; see also Simmons, 202 B.R. at 203 (finding that canons of statutory construction, as well as “common sense,” mandated the same reading, but also considering legislative history).
We must also determine what it means for a residence to be “sold at a foreclosure sale.” Deconstructing this phrase further, we must determine the meaning of “foreclosure sale“—a term that Appellees contend is synonymous with the foreclosure auction, but that Connors insists refers to the entire foreclosure process, terminating with the delivery of a deed. The Bankruptcy Code does not define “foreclosure sale,” so we must give it its ordinary meaning. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 171 F.3d 818, 822 (3d Cir. 1999).
Outside of cases applying the deed-delivery rule, the term “foreclosure sale” is broadly understood to mean the foreclosure auction. First, the preposition “at” in “sold at a foreclosure sale” signifies a discrete event, rather than an ongoing process. See Chisolm, 2005 WL 1522232, at *3. . . . There is no doubt that “foreclosure sale,” as it is commonly understood, signifies the foreclosure auction. See, e.g., Cain, 423 F.3d at 620; Hric, 208 B.R. at 25; Simmons, 202 B.R. at 203.
497 F.3d at 319-20 (footnote omitted).
The above-cited cases highlighting the majority view provide sound reasons for concluding, as the LaPointe panel did, that a debtor‘s interest in foreclosed property and, hence, her right to cure, ends when the gavel falls. These cases uniformly point to the well-established rule of statutory construction, the plain language rule, to support this conclusion. In addition, other compelling considerations that emerge from the case law include the need for a uniform set of laws governing consumer bankruptcy, In re McCarn, 218 B.R. at 160, and internal consistency within the Bankruptcy Code itself, In re Bobo, 246 B.R. at 456-57. There is no support for a conclusion that the LaPointe‘s reasoning was “problematic” or that LaPointe was “dead wrong,” such that its decision should not be followed by this Panel. Moreover, other than Vertullo, there have been no cases issued by courts at any level rejecting the holding in LaPointe.
In light of LaPointe and the majority of cases that are consistent with LaPointe, it is safe to say that U.S. Bank satisfied its burden of establishing a colorable claim to the Property. See Grella, 42 F.3d at 33. Applying LaPointe, we conclude that, because the Debtor did not
IV. The Plan Confirmation Order
(a) Except as provided in subsection (b), the court shall confirm a plan if—
(1) the plan complies with the provisions of this chapter and with the other applicable provisions of this title[.]
CONCLUSION
For the foregoing reasons, we REVERSE the Order Denying Stay Relief and the Confirmation Order and REMAND to the bankruptcy court for further proceedings consistent with our decision.