In re Scantling, 465 B.R. 671, 675–82 (Bankr. M.D. Fla. 2012) (Williamson)

Debtor ineligible for discharge because of § 1328(f) can strip off wholly unsecured junior lien. “[Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (June 10, 1991),] recognized a debtor’s right to file a chapter 20 case. . . . [Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (Jan. 15, 1992),] recognized that § 506(d), by itself, is insufficient to strip a lien on a debtor’s homestead. . . . [Nobelman v. American Savings Bank, 508 U.S. 324, 113 S. Ct. 2106, 124 L. Ed. 2d 228 (June 1, 1993),] only dealt with a claim that was partially undersecured. In Nobelman, it was the existence of some collateral for the bank’s claim that made the bank a ‘holder’ of a ‘secured claim’ that brought into play § 1322(b)(2)’s anti-modification provision . . . . [Tanner v. FirstPlus Financial, Inc. (In re Tanner), 217 F.3d 1357 (11th Cir. July 13, 2000) (Black, Carnes, Kravitch),] . . . held that § 1322(b)(2)’s anti-modification provision does not bar a chapter 13 debtor from stripping off a wholly unsecured lien on the debtor’s principal residence. . . . Section 1325(a)(5), by its terms, only applies to ‘allowed secured claims.’ And as Tanner . . . made clear, the holder of a wholly unsecured junior mortgage does not have a ‘secured claim.’ . . . [T]he pro-lien stripping courts recognize that upon confirmation of a plan in a chapter 20 case, the holder of a wholly unsecured junior mortgage lien holds neither a secured claim . . . nor an unsecured claim enforceable against the debtor—by virtue of the prior discharge. Confirmation of the plan in such cases, instead, implements the debtor’s right under § 1322(b)(2) to modify—not the claim—but the ‘rights’ that the holder of the previously discharged claim has under applicable nonbankruptcy law. . . . [T]hose rights include ‘the right to retain the lien until the debt is paid off.’ It is this right that can be modified by strip off in a chapter 20 case. This is exactly what Tanner and the other circuit court cases recognized . . . . There is nothing in BAPCPA’s legislative history to suggest—nor has any court ever held—that the new provision in § 1325(a)(5)(B) was intended to abrogate the court’s analysis in Tanner. Nor is there anything in BAPCPA’s legislative history that suggests Congress added § 1328(f) to limit a debtor’s right to strip off a wholly unsecured junior mortgage . . . . [T]he bankruptcy court must still determine whether the chapter 13 plan was filed in good faith. . . . [I]t is only after a debtor has successfully completed all plan payments required by the chapter 13 plan that the provisions of the plan—including any lien avoidance—become permanent.”

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