MEMORANDUM AND ORDER REGARDING BANKRUPTCY APPEAL
(Dkt. No. 1)
I. Introduction
Paul Sagendorph (“Debtor”) is the debt- or in a Chapter 13 bankruptcy proceeding. His amended Chapter 13 plan sought to vest title to certain property in one of his creditors, Wells Fargo Bank, N.A. (“Wells Fargo”). Wells Fargo objected to this provision of the plan, but the Bankruptcy Court overruled the objection and confirmed the plan based on the court’s interpretation of the statutory provisions presently at issue. Wells Fargo has appealed the decision of the Bankruptcy Judge.
II. Facts
The facts in the record are undisputed. On July 30, 2014, Debtor filed a voluntary Chapter 13 petition. (See Dkt. No, 9, Bankruptcy Court Record (“Bankr. Rec.”) at 16-21.) On August 15, 2014, Debtor filed his initial reorganization plan. (Id. at 22-30.) The plan indicated’ Debtor owns three income-producing properties. (Id.) The plan provided that each of the mortgagees on the three properties would be paid in full through the surrender and vesting of title to each property. (Id. at 25.) Wells Fargo is the mortgagee of the income-producing property located at 51 Pleasant Street, Ware, Massachusetts. (Id.) The initial plan treated all of Wells Fargo’s secured claims in the property identically. (See id.) The value of the property at issue is approximately $89,000, (id. at 26), which is more than Wells Fargo’s secured claim of $61,498.99.
On February 10, 2015, Debtor filed an amended plan still calling for title to the property to vest in Wells Fargo. (Id. at 73-83.) The amendment clarified Wells Fargo’s mortgage was the only encumbrance on the property. (Id. at 76.) Over Wells Fargo’s renewed objection, (id. at 87-88), the Bankruptcy Court confirmed the amended plan by order dated August 3, 2015. (Id. at 143-45.) The confirmation order treated Wells Fargo’s claim as follows:
Debtor is surrendering the property located at 51 Pleasant Street, Ware, Massachusetts in full satisfaction of the secured claims. Wells [Fargo] will foreclose on the property in full satisfaction of the Mortgage, Note and any outstanding fees. Pursuant to [11 U.S.C.] §§ 1322(b)(8) and (9), title to the property located at 51 Pleasant Street, Ware, Massachusetts shall vest in Wells [Fargo], and/or any/all successors and/or assigns, upon confirmation, and the Confirmation Order shall constitute a deed of conveyance of the property when recorded at the Registry of Deeds.
(Id. at 144 (emphasis added).) Wells Fargo appealed the confirmation order to this court. (Id. at 147.)
III. Standard of Review
The Court reviews the Bankruptcy Court’s legal determinations de novo. See In re Clifford,
IV. Background
Wells Fargo brings this case under Chapter 13 of the federal Bankruptcy Code (“the Code”) to resolve a significant question of statutory interpretation. Chapter 13 regulates the reorganization of an individual debtor’s arrearage. This is in contrast, to Chapter 11, which generally pertains to the reorganization of business-related debt, and Chapter 7, which governs the process of liquidation. At issue is whether, in full satisfaction of a claim, a debtor may transfer title to collateral property to a secured creditor over the creditor’s objection. The statutory provisions relevant to resolving this dispute are 11 U.S.C. §§ 1322(b)(8), 1322(b)(9), and 1325(a)(5)(C).
Sections 1322 and 1325 establish, respectively, the content and methods of confirming a proposed reorganization plan. Section 1322(a) enumerates mandatory plan provisions, while section 1322(b) specifies the provisions permitted in a debtor’s reorganization plan, any one or multiple of which a debtor may choose to include. See 11 U.S.C. §§ 1322(a)-(b). Subsection 1322(b)(9) in particular states a plan may “provide for the vesting of property of the estate, on confirmation of the plan or at a later time, in the debtor or in any other entity.” Section 1325 describes the standards for confirming a proposed reorganization plan. Subsection 1325(a)(5) enumerates three bases for approval. See id. §§ 1325(a)(5)(A)-(C). If, with regard to a debtor’s secured claim(s), any one of these bases applies, the proposed plan must be confirmed. See id.
The question presented is whether a surrender of collateral property, as permitted by section 1325(a)(5)(C) of the federal Bankruptcy Code, imposes on secured creditors a requirement to accept vesting of that property. In analyzing this question, the Court recounts in detail the Bankruptcy Court’s holding, the reasoning behind its holding, and the parties’ arguments. The result is a detailed accounting and analysis of the issues leading to this appeal. Given the importance of the issue at hand, the Court finds such an extended discussion appropriate.
Bankruptcy Court Decision
The Bankruptcy Court for the District of Massachusetts confirmed Debtor’s proposed reorganization plan, whose terms vested collateral property in mortgagee Wells Fargo over the bank’s objection. (See Bankr. Rec. at 123-34, 143-45.) As formulated by the court, the key inquiry was whether “[section] 1325(a)(5) occupies the field with respect to in-kind payment” of secured claims such that vesting under 1322(b)(9) “must yield to the provisions of that section.” (Id. at 127-28.) The Bankruptcy Court ruled forced vesting in full satisfaction of a claim permissible so long as a plan is proposed in good faith and is “otherwise in compliance with the Code.” (Id. at 129.) See also 11 U.S.C. § 1325(a)(3) (“[T]he [bankruptcy] court shall confirm a plan if the plan has been proposed in good faith and not by any means forbidden by law.”). The court provided several rationales. It rejected the reasoning articulated in cases such as In re Tosi, which deemed “surrender” pursuant to 1325(a)(5)(C) and “vesting” pursuant to 1322(b)(9) mutually exclusive.
In support of this interpretation, the Bankruptcy Court compared section 1322(b)(9) to what it considered an analogous provision in Chapter 11. (Id. at 131-32.) Under this provision, known familiarly as Chapter ll’s “dirt-for-debt” provision, a
The Bankruptcy Court looked also to equitable considerations. In particular, it emphasized Debtor’s plan had been proposed in good faith. (See Bankr. Rec. at 132-33.) See also 11 U.S.C. § 1325(a)(3) (conditioning confirmation on a plan being proposed in good faith). Debtor’s plan did not seek to, for example, pass off the burdens of environmental liability or deterioration to Wells Fargo. (See Bankr. Rec. at 132-33.) Nor was the property subject to other liens or encumbrances. (See id.) The potential risk to Wells Fargo, the Bankruptcy Court further observed, was low because the bank was oversecured and would therefore suffer no deficiency. (Id.)
Finally, the court underscored the importance of the federal interest in the Bankruptcy Code’s “fresh start” policy, and ruled state laws inconsistent with this principle preempted. (Id. at 131.) Accordingly, the court upheld forced vesting provisions, finding they furthered the ‘fresh start’ interest by fully discharging a debt- or’s arrearage. (Id.)
Parties’ Arguments
A. Wells Fargo
Wells Fargo argues confirmation of forced vesting plans is contrary to the plain language of section 1325(a)(5) and to “the concept of ‘surrender’ and the consequences that flow therefrom.” (Dkt. No. 25, Reply Brief of Wells Fargo (“R.B. Wells Fargo”) at 3.) The bank asserts the plain meaning of the statutory language cannot be read to allow a debtor to simultaneously surrender its property under section 1325(a)(5)(C) and vest title in a creditor under section 1322(b)(9). (Id. at 2-3.) To do so, it charges, would violate the statute in multiple ways. Most notably, such a reading converts vesting from a bilateral disposition of property to a requirement unilaterally imposed by a debt- or in violation of traditional legal principles. (Id. at 17 (“[I]t stands to reason that consent is required [for vesting] because the Bankruptcy Code cannot be read to permit a debtor to do something that is impossible outside of bankruptcy, absent express statutory direction.” (citing Butner v. United States,
Wells Fargo also rejects the analogy drawn by the Bankruptcy Court between Chapter ll’s dirt-for-debt provision, 1123(a)(5)(B), and Chapter 13’s vesting provision, 1322(b)(9). (R.B. Wells Fargo at 19-20.) Wells Fargo attacks this analogy on several grounds. First, Wells Fargo asserts, this analogy is inaccurate. Section 1123(a)(5)(B) does not in itself authorize forced transfer. See § 1123(a)(5)(B) (identifying transfer only as ‘adequate means’ for plan implementation). Rather, forced transfer is effectuated under section 1129(b)(2)(A)’s “indubitable equivalent” provision, which is “conspicuously absent from Chapter 13.” (See R.B. Wells Fargo at 19-20 (citing In re Lemming,
Wells Fargo also takes issue with the Bankruptcy Court’s finding that section 1322(b)(9) preempts Massachusetts law defining creditors’ rights to refuse transfer of collateral property. Wells Fargo first asserts Massachusetts and federal law are not in conflict, and that the question of preemption therefore does not arise. (Id. at 25-26.) Even were preemption to apply, Wells Fargo adds, the federal government’s interest in providing debtors with a ‘fresh start’ is too weak to justify trampling creditors’ rights under state law. Moreover, the ‘fresh start’ principle cannot control any interpretation of sections 1322(b)(9) and 1325(a)(5)(C) because it is not an interpretational canon; at most, it informs statutory construction. (R.B. Wells Fargo at 15.) Accordingly, the ‘fresh start’ interest “should not be construed to allow a debtor to shift the burdens of property ownership onto others.” (Id. at 10 (citing Canning v. Beneficial Me., Inc. (In re Canning),
B. Debtor Paul R. Sagendorph, II
Debtor sets forth two alternative theories meant to elucidate Congress’s intent to allow forced vesting under 1322(b)(9) and 1325(a)(5)(C). Debtor first emphasizes the statute’s plain language. Section
Debtor further asserts that when read in combination, sections 1322(b)(9) and 1325(a)(5)(C) allow vesting over a creditor’s objection. (Id. at 2.) Debtor’s reasoning is twofold and originates in the term ‘surrender’ as it is used in section 1325(a)(5)(C). First, as is well-established, a “[c]ourt must confirm a plan over a creditors [sic] objection if the plan provides for the surrender of the property.” (Id. at 15 (citing Hamilton v. Wells Fargo Bank (In re Hamilton),
In addition to his ‘tandem theory,’ Debt- or relies on the statutory analogy between sections 1322(b)(9) and 1123(a)(5)(B) described by the Bankruptcy Court. Forgoing a word-by-word analysis of the statutory language, Debtor instead adopts the Bankruptcy Court’s broad interpretive rationale, (id. at 23), which considered it “a self-evident truth that wherever possible the reorganization rights of chapter 11 and chapter 13 debtors should be the same.” (Bankr. Ree. at 131.)
With respect to preemption, Debtor emphasizes “[a] major [tenet] of the Bankruptcy Code is to provide a ‘fresh start to the honest but unfortunate debtor.’ ” (B. Debtor at 5 (quoting Marrama v. Citizens Bank of Mass.,
C. Amicus curiae National Association of Consumer Bankruptcy Attorneys
The National Association of Consumer Bankruptcy Attorneys (“NACBA”) has filed an amicus brief in support of Debtor. Arguing in favor of forced vesting, NAC-BA stresses the absence of a statutory prohibition thereon. NACBA insists “there is nothing in the plain language of the Code” supporting Wells Fargo’s position
As to preemption, NACBA agrees with Debtor that, due to the federal ‘fresh start’ interest, sections 1322 and 1325 preempt “[pjroperty interests ... created and defined by state law.” (Id. at 4 (quoting Butner,
Y. Discussion
A. Statutory language
The key issue facing the Court is the meaning of the words “vest” and “surrender” as they are used in sections 1322(b)(9) and 1325(a)(5)(C) of the Code. Specifically, the Court must determine whether and to what extent these terms interact to authorize forced vesting under section 1322(b)(9).
When interpreting a statute, a court first considers its “plain meaning.” See Caminetti v. United States,
The meaning of the word ‘surrender,’ whether used in the Bankruptcy Code or elsewhere, is plain and well-established in property law. See, e.g., Tosi,
In contrast, ‘vest’ is generally defined as “[t]o confer ownership (of property) on a person,” “[t]o invest (a person) with full title to property,” or “[t]o give (a person) an immediate, fixed right of present or future enjoyment.” Blaok’s Law DICTIONARY (10th ed. 2014). Vesting is not the unilateral act of the grantor, and elementary principles of property law make this clear. See, e.g., In re Weller,
Recognizing ‘surrender’ and ‘vesting’ as distinct acts has led courts to rule against forced vesting. See, e.g., supra page 548-49 (explaining the Tosi court’s reasons for rejecting forced vesting); see also Zair,
The Bankruptcy Court first approved forced vesting by reading sections 1322(b)(9) and 1325(a)(5)(C) in combination, reasoning that because vesting presupposes surrender, inherent in vesting is the surrender required for plan confirmation hnder 1325(a)(5)(C). While admiring the elegance of the Bankruptcy Court’s solution, this Court finds it problematic. This explanation mischaracterizes the chronological relationship between surrender and vesting. Surrender is a prerequisite action subsumed by vesting upon acceptance. The Bankruptcy Court’s finding that vesting falls within the scope of 1325(a)(5)(C) transposes this relationship, rendering it legally incoherent. “[Interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” See Griffin v. Oceanic Contractors, Inc.,
The Bankruptcy Court also allowed forced vesting as a means of harmonizing various provisions of the Bankruptcy Code. “Applying § 1322(b)(9) consistently with its plain meaning,” the court explained, “promotes coherence in the reorganization chapters of the [Code].” (Id. at Í31.) On this logic, the court concluded that, “wherever possible the reorganization rights of chapter 11 and chapter 13 debtors should be the same.” (Id.; see also id. at 132 (“[T]he differences between the two primary reorganization chapters [Chapters 11 arid 13] should be cabined by explicit statutory mandate. In the absence of statutory directive, the two chapters should offer comparable relief to debtors who seek to reorganize.”).) In exposition of this coherence, the Bankruptcy Court compared section 1322(b)(9) to its “chapter 11 analog,” section 1123(a)(5)(B). (Id. at 132.) Section 1123(a) sets forth requirements a Chapter 11 reorganization plan “shall” meet. 11 U.S.C. 1123(a). One such requirement is to “provide adequate means for [a] plan’s implementation.” 11 U.S.C. § 1123(a)(5). Subsection 1123(a)(5)(B) in particular provides examples of ‘adequate means’ for implementation, among which is the “transfer of all or any part of the property of the estate to one or more entities.” This language echoes that of 1322(b)(9), which allows “vesting of property of the estate ... in the debtor or in any other entity,” and 1322(b)(8), which permits “payment of all or part of a claim ... from property of the estate or property of the debtor.” Because the statutory language in these different sections is so similar, the Bankruptcy Court emphasized, sections 1123(a)(5)(B) and 1322(b)(9) should produce the same result—forced vesting.
The Bankruptcy Court was correct in noting both 1123(a)(5)(B) and 1322(b)(9) approve vesting as a means of discharging debt. This linguistic similarity cannot, however, alter the limitations imposed on Chapter 13 vesting by the statute’s plain language. Any harmonization like that described by the Bankruptcy Court imper-missibly distorts the plain language of these provisions. First, and most importantly, it ignores an additional pair of plainly distinct terms: “shall” and “may.” Section 1123(a)(5) states “a plan shall” provide for vesting or other acceptable means of implementation. Section 1322(b) states a plan “may provide for [] vesting.” This contrasting use of ‘shall’ and ‘may is no small thing. ‘Shall’ makes section 1123(a)(5)(B) a mandatory provision, one which explicitly identifies transfer of collateral property as a necessarily ‘adequate means’ of carrying out that mandate. As it
There is also a technical impediment to forced vesting by analogy, as Wells Fargo observes. In Chapter 11 plans, it is not section 1123(a)(5)(B) that effectuates forced vesting, but rather section 1129(b)(2)(A)(iii). Like 1325(a)(5), section 1129 prescribes confirmation standards. Forced vesting under 1123(a)(5)(B) may be accomplished pursuant to 1129(b)(2)(A), which compels a bankruptcy judge in certain circumstances to confirm a plan “deemed ‘fair and equitable,”’ RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
Additionally, this Court appreciates the, logic driving the Bankruptcy Court’s analysis of statutory intent and effect. (See, e.g., Bankr. Rec. at 131 (discussing the “paramount federal interest” behind the Code).) However, because the meaning of ‘vest’ and ‘surrender’ is plain, the Bankruptcy Court’s consideration of these factors was inappropriate. The plain text of the Bankruptcy Code must begin and end our analysis. Puerto Rico v. Franklin Cal. Tax-Free Trust, — U.S. -,
Notwithstanding the Court’s conclusion in this case, the ‘fresh start’ principle is unquestionably a fundamental premise of the federal Bankruptcy Code. The Supreme Court “on numerous occasions has stated that (o)ne of the primary purposes of the Bankruptcy Act is to give debtors a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” Perez v. Campbell,
Bankruptcy courts “are essentially courts of equity, and their proceedings inherently proceedings in equity.” Local Loan Co.,
VI. Conclusion
The appeal in this action asked the Court to evaluate the permissibility of forced vesting under sections 1322(b)(8), (b)(9) and 1325(a)(5)(C) of the federal Bankruptcy Code. After analysis, the Court holds the plain language of these provisions precludes forced vesting. The Court’s holding reaches only the provisions presented here.
It is So Ordered.
Notes
. Debtor valued the total amount of recorded-liens at $60,545.41, (Dkt. No. 9, Bankruptcy
. Noting the Code defines neither ‘surrender’ nor ‘vesting,’ the court drew a distinction between the two using case precedent and traditional definitions. " ‘Surrender,’ ” it observed, ‘‘has developed a distinct meaning in this circuit,” namely, “to make the collateral
.The Bankruptcy Court characterized the . property at issue as an ''income-producing,” ''multifamily property.” (Bankr. Rec. at 123). The record therefore supports an assumption that the property is not the debtor’s primary residence, but the Bankruptcy Court made no explicit finding on this point. Compare In re Guilbert,
. As with the primary-residence distinction, ■ the Bankruptcy Court did not address forced vesting as it pertains to short versus long-term mortgages under the provisions mentioned above.
. Both the Bankruptcy Court and the parties considered whether sections 1322(b)(9) and 1325(a)(5)(C) preempt state law. This court, again, resists weighing in on this issue for what could only be an academic analysis in the context here. The necessity of the Bankruptcy Court’s preemption analysis was based on what this Court has found to be an erroneous reading of the statutory language. Having answered the operative question as presented, this Court leaves it to the Bankruptcy Court on remand to analyze and apply preemption doctrine if necessary.