A second MortgageSecond mortgage
Toledo-Cardona and Bank of Amer. v. Caulkett, which are now in the process of being set tling the question of whether a fully uncollateralised pledge in a Chapter 7 insolvency can be cleared.
The court found, however, that a pledge can be cancelled without fairness, but a partially guaranteed pledge cannot be reduced. "See McNeal v. GMAC Mortgage, LLC, 735 F.3d 1263 (11 Cir. 2012), p. d... For a copy of the Bankruptcy Court's statement see: http://www.flsb.uscourts.gov/Opinions/EPK/14-28818bodensiek.pdf.
In accordance with the provisions of Section 7, the borrower submitted a bankruptcy application on a discretionary basis. Soon thereafter, the administrator in receivership submitted a communication in which he left the debtor's farmstead. Pursuant to 11 U.S.C. 506, the borrower submitted an application for valuation and determination of the secure state of a second mortgage right on his real estate. At the time, the move claimed that his principal place of abode, which was farm ownership in Florida, was $84,000 and that because the amount due on the first mortgage was $191,856.
53, no capital was available for the second mortgage owned by the same mortgage creditor. Consequently, the borrower reasoned, the mortgage creditor was abandoned with a completely uncollateralized debt in respect of the second mortgage. Mortgage creditor did not lodge an opposition in reaction to the debtor's request and did not appear at the hearings on the request.
Bankruptcy Court found that pursuant to 11 U.S.C. 506(a), a secure debt is "forked" into secure and uncovered debts if the pledged ownership is less valuable than the amount of the debt, and that sub-section 506(d) provides for the process of extinguishing or "deducting" such "underwater liens".
However, the Court of First Instance formulated the question before it as having the power to "deduct" a completely uncollateralised pledge, even if the ownership charged by the pledge is no longer managed as part of the bankrupt's assets. Here, because the receiver gave up the farm, it was considered managed before the debtor's application was made.
Bankruptcy court began its investigation by recognizing the unexplained state of the art of the Act in this case. First, the Tenth District Court in Dewsnup v. Timm, 908 F. 2d 588 (10th district < 1990), as a result of the legal construct, determined that "abandoned assets are not assets in which the assets have an interest", and accordingly 506(a) does not apply. However, the Tenth District Court in Dewsnup v. Timm, 908 F. 2d 588 (10th district < 1990), as a result of the legal construct, has determined that "abandoned assets are not assets in which the assets have an interest", and accordingly 506(a) does not.
However, the Court of Contention found that the U.S. Supreme Court's Dewsnup judgment, which upheld the Tenth Circuit judgment for other reasons, did not raise the question of whether Section 506 applied to assets left by the receiver under Section 554. Conversely, the Third Circuit in Gaglia v. First Federal Sav. & Loan Ass'n, 889 F. 2d 1304 (3rd Cir. 1989), and the Elft Circuit in McNeal v. GMAC Mortgage, LLC, 735 F. 3d 1263 (11th Circ. 2012) stated that section 506(a) is applicable and allows a restriction of pledge.
Agreeing with the arguments of the Third District of Gaglia, the Court found that it had the authority to withdraw pledges in accordance with section 506, irrespective of whether the securities had been given up or could subsequently be given up by the bequest. In approving the debtor's application, the court found that (a) the value of the debtor's farm was $84,001 when the case was lodged; (b) the aggregate amount of collateralized receivables older than the second mortgage was $191,856.
53; (c) there is no longer any capital after the repayment of seniors' mortgages; (d) the second mortgage is a secure receivable against the debtor's farm when the relief in Ch. e ) if the mortgage creditor provided evidence of a right, the receivable would be classed as a general uncovered receivable, regardless of how the receivable was classed in the evidence of a right; and f) the relevant ownership could not be resold or repaid without prior notification and further judicial settlement.