For the past several years, it has been common practice for a mortgagor to “surrender” property subject to a mortgage through a bankruptcy case and later defend (or continue to defend) a foreclosure action in state court. In this manner, mortgagors have been able to enjoy significant benefits afforded by the Bankruptcy Code, such as discharge of the debt and cessation of negative reports to credit bureaus, while at the same time enjoying prolonged possession and ownership of collateral.
A recent opinion from the Eleventh Circuit Court of Appeals threatens to end this practice.
In the case of, In re Failla, 15-15626, 2016 WL 5750666 (11th Cir. Oct. 4, 2016), the Eleventh Circuit held debtors who surrender real property in a chapter 7 bankruptcy case may not oppose a foreclosure action in state court pertaining to that property. In reaching this conclusion, the Failla court admonished: “In bankruptcy, as in life, a person does not get to have his cake and eat it too.” Id. at *5. Moreover, the Failla decision provides that a bankruptcy court has statutory authority to compel mortgagors to withdraw defenses and dismiss counterclaims asserted in state court foreclosure litigation. Id. at *6. This memorandum addresses the specifics of the Failla decision and the potential limitations of its reach.
The Failla opinion resolves two important questions: (i) whether a debtor who surrenders real property in a Chapter 7 bankruptcy case may oppose a state court foreclosure action pertaining to that property; and (ii) whether a bankruptcy court has authority to order a mortgagor to cease opposing a foreclosure action. Based on an analysis of the duties imposed on debtors pursuant to 11 U.S.C. § 521(a)(2) (“section 521(a)(2)”), the Failla court determined a debtor may not oppose a state court foreclosure action pertaining to real property surrendered in a Chapter 7 case. Relying on the broad enforcement powers bestowed by 11 U.S.C. § 105(a), the Failla court held a bankruptcy court has authority to order a mortgagor who surrendered real property in a Chapter 7 bankruptcy case to cease opposing a foreclosure action pertaining to that property.
- Mortgagors May Not Oppose State Court Foreclosure Actions After Declaring the Collateral Surrendered Under 11 U.S.C. § 521(a)(2).
In every individual Chapter 7 bankruptcy case, section 521(a)(2) requires that a debtor file a statement of intentions regarding what the debtor intends to do with property serving as collateral for a debt (the “Statement of Intentions”). Through the Statement of Intentions, a debtor must provide a sworn declaration stating whether the debtor will surrender the collateral, redeem the collateral, or reaffirm the debt. 11 U.S.C. § 521(a)(2); Fed. R. Bankr. P. 1007(b)(2). Additionally, section 521(a)(2)(B) mandates a debtor must perform the stated intention. Thus, clearly, a debtor must effect surrender of real property serving as collateral for a mortgage if a debtor indicates on his or her Statement of Intentions that is what the debtor elects to do. The issue resolved in Failla was to whom a debtor is required to surrender the collateral, as section 521(a)(2) states a debtor must “surrender” collateral but does not specify to whom. The Faillas argued section 521(a)(2) merely requires a debtor to surrender collateral to the Chapter 7 bankruptcy trustee, not the creditor. However, the Failla court determined, based upon a thorough analysis of the use of the term “surrender” in section 521(a)(2) and other sections of the Bankruptcy Code, that section 521(a)(2), “requires debtors who file a statement of intent to surrender to surrender the property to both the trustee and to the creditor.” Id. at *2-3.
Next, the Failla court considered the meaning of the term “surrender,” as it relates to a debtor’s obligation under section 521(a)(2) and ultimately concluded:
Because “surrender” means “giving up of a right or claim,” debtors who surrender their property can no longer contest a foreclosure action. When the debtors act to preserve their rights to the property “by way of adversarial litigation,” they have not “relinquish[ed] … all of their legal rights to the property, including the rights to possess and use it.” Id., at *4 (quoting In re White, 487 F.3d 199, 206 (4th Cir. 2007).
While the holding in Failla is promising news for creditors, bankruptcy courts hesitant to interfere in state court matters may opt to narrowly apply the opinion. Specifically, section 521(a)(2) only applies to cases filed under Chapter 7 by individuals. Consequently, the Failla opinion directly applies only to foreclosure actions where collateral was surrendered in an individual Chapter 7 case. Also, in order for the reasoning of Failla to directly apply, the name of the foreclosing creditor arguably must match the name of the creditor to whom the collateral was surrendered in the bankruptcy case. Furthermore, a foreclosure action may involve additional defendants who were not party to the bankruptcy case and, thus, did not relinquish their rights to oppose the action.
- Bankruptcy Courts Have Statutory Authority to Order Mortgagors to Stop Opposing State Foreclosure Actions After Real Property is Surrendered in a Chapter 7 Case.
“Bankruptcy courts have broad powers to remedy violations of the mandatory duties section 521(a)(2) imposes on debtors.” Id. at * 5 (citations omitted). 11 U.S.C. § 105(a) authorizes bankruptcy courts with the power to, “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” The Failla court appropriately noted a bankruptcy court’s powers under § 105(a), “includes section 521(a)(2).” Id. Bankruptcy judges regularly enter orders pursuant to 11 U.S.C. § 105(a) which compel action by parties outside of bankruptcy cases in order to redress violations of the Bankruptcy Code and compel compliance with orders of bankruptcy courts. Id. at *6. Thus, a bankruptcy court would have authority under section 105(a) to enter an order compelling compliance with a debtor’s Statement of Intention.
Unfortunately, in instances where the Failla opinion does apply, it is not self-effectuating. Creditors seeking the relief afforded by this opinion must take the additional step of filing a motion to compel in the relevant bankruptcy case. The necessity of filing a motion to compel may arise after the Chapter 7 case has been closed, thus requiring payment of a reopening fee. While a bankruptcy court would have authority to order payment by the debtor of the court costs and attorneys’ fees incurred due to filing the motion, the reality of actual payment by the debtor absent other costly legal action is, at best, uncertain.
In conclusion, while the Failla opinion is certainly positive new case law for creditors, the expanse of its practical impact is yet to be seen.