Woolsey v. Citibank, N.A. (In re Woolsey), No. 11-4014, 2012 WL 3797696, at *8–*13 (10th Cir. Sept. 4, 2012) (Gorsuch, Holmes, Matheson)

Until Supreme Court retreats from Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (Jan. 15, 1992), Chapter 13 debtor cannot void a wholly unsecured junior mortgage using only § 506(d). Repudiating “the only possible winning argument they may have had,” debtors’ plan proposed to strip off wholly unsecured junior lien, relying only on lien-voiding language in § 506(d). “Dewsnup has created more than a little ‘methodological confusion[]’. . . . [T]he Dewsnuppian departure from the statute’s plain language is the law. . . . [E]very federal court of appeals to consider the question has already refused to extend Dewsnup’s definition of the term ‘secured claim’ to other statutory provisions using that term in Chapter 13, where the focus is on reorganization rather than liquidation. . . . So it is that Dewsnup has lost every away game it has played: its definition of ‘secured claim’ has been rejected time after time elsewhere in the code and seems to hold sway only in § 506(d). . . . [O]f all the circuit courts approving of lien stripping in reorganization cases, not a single one has taken up the Woolseys’ invitation to do so using § 506(d). Instead, they have relied exclusively on other statutory provisions particular to those chapters. . . . [M]any courts have already identified one apparently promising candidate in § 1322(b)(2). . . . [N]o fewer than six circuits have already read [Nobelman v. American Savings Bank, 508 U.S. 324, 113 S. Ct. 2106, 124 L. Ed. 228 (June 1, 1993),] this way and held a debtor may invoke § 1322(b)(2) to remove a wholly unsecured lien, even if that lien is secured against the debtor’s principal residence. . . . [T]he Woolseys didn’t choose to pursue this line of argument . . . . [W]e opt today against forcing a § 1322(b)(2) argument onto the unwilling Woolseys and leave that statute and its meaning for another day when a bankruptcy petitioner actually wants to pursue the question.”

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