Legislative Intent or Judicial Myth-making No Legislative History Supports Policy Arguments Advanced Against Stripdown

Legislative Intent or Judicial Myth-making No Legislative History Supports Policy Arguments Advanced Against Stripdown

Journal Issue: 
Column Name: 
Journal Article: 
As the debate over stripdown (and other modifications) of residential mortgages turns increasingly on technical arguments about the scope of 11 U.S.C. §322(b)(2) and the Nobelman case,1 judges sometimes allow policy-based arguments to trump the details of the legislative language. When they do, they often claim support for their position in the supposed legislative history of §1322(b)(2), which "establishes" that the protections were designed to support residential mortgage lending activity by encouraging "the flow of capital into the residential mortgage market."2

The point of origination of this practice was a concurring opinion by Justice Stevens in the Nobelman case itself. That concurrence is now frequently cited to support judge-made limits on modification of residential mortgages. Justice Stevens said:

At first blush it seems somewhat strange that the Bankruptcy Code should provide less protection to an individual's interest in retaining possession of his home or her home than of other assets.3 The anomaly is, however, explained by the legislative history indicating that favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home-lending market. See Grubbs v. Houston First Savings Assn., 730 F.2d 236, 245-246 (5th Cir. 1984) (canvassing legislative history of chapter 13 home mortgage provisions). It therefore seems quite clear that the court's literal reading of the text of the statute is faithful to the intent of Congress.

Misuses of Justice Stevens's Concurrence

Over the years since the Nobelman opinion was issued, Justice Stevens's concurrence has passed into the bankruptcy canon. Rather than research the legislative record directly, courts cite Justice Stevens's opinion as proof of the existence of relevant legislative history. Courts now often use the citation to justify a ruling protecting lenders from modification that is not consistent with the literal language of §1322(b)(2).4

Not only is use of the citation in these circumstances so inconsistent with the primary rule of statutory construction that Congress's expresses itself through the statutory language it chooses, but it also misses the point that Justice Stevens's opinion is a concurrence. He quite clearly states that the "legislative history" is only additional support for the court's "literal reading" of the plain language of the statute. His opinion then should not be seen as support for ignoring the literal reading.

No History on Intent of §1322(b)(2)

Most importantly, however, Justice Stevens's opinion is just plain wrong. Significantly, rather than cite the legislative record, Justice Stevens cites a Fifth Circuit case to support his description of the legislative history.5 It is important then to reread the Grubbs decision to determine its underlying basis in the relevant record.

Grubbs is a 1984 decision that concluded that the cure of a default on a residential mortgage loan is allowed because it is not an impermissible modification under §1322(b)(2). This holding, which is not controversial now, was a subject of some dispute in the early years of the Code.

In reaching its decision, the Grubbs court does "canvass" the legislative history of §1322(b)(2) and finds, in fact, that there is nothing in the record that describes the provision's purpose or scope. Instead, the court speculates based on the fact that the provision was a legislative compromise. It surmises that the compromise may have been reached in response to witness testimony (or perhaps may have been based on unexpressed Congressional perceptions):

This limited bar was apparently in response to perceptions, or to suggestions advanced in the legislative hearings...that home-mortgagor lenders [sic] performing a valuable social service through their loans needed special protection against modification thereof..."
(Emphasis added.) (Omitted citation is a reference to its own opinion.)

The relevant witness testimony is described in footnote 13 of the Grubbs opinion and the accompanying text. The bulk of the testimony described was offered at some point in 1975 before a Senate Committee (presumably including some members who were no longer in Congress in 1978 when the Code was passed). The witnesses were testifying on behalf of the American Bankers Association and the National Consumer Finance Association.

Putting aside the question of whether witness testimony alone is ever significant as Congressional history, what lender ever stated that it was not "performing a valuable social service" or that it was not entitled to special protection? (Perhaps this "valuable social service" test should be read into §1322(b)(2)—thus eviscerating the anti-modification protection for high-rate and predatory mortgage lenders). Still worse, the language that describes the "suggestion advanced" in the legislative history is that of the Grubbs court and not even that of the witnesses themselves.

In short, despite Justice Stevens's concurrence, there is no valid legislative history that supports policy-based limits on the plain language of §1322(b)(2). It is obvious from the legislative language itself that Congress intended to give some protection to residential mortgage lenders. However, nothing in the legislative history amplifies the meaning of that statutory language.6

Judges are thus left to follow the Supreme Court's admonitions to interpret the plain language of the statute. That language indisputably supports modification in limited situations that are outside the ambit of §1322(b)(2).

No Evidence on Undermining Residential Mortgage Market

As a supplement to the mythical legislative history, lenders often argue against stripdown on the basis that dire consequences for the residential mortgage market will follow. However, no actual evidence supports this bald policy argument.

It is unclear, as a matter of evidence, that the stripdown of residential mortgages, in the limited factual context in which it is allowed, has a significant financial impact on residential lenders. In the years before Nobelman came down, many jurisdictions allowed stripdown of all residential mortgages,7 and even then, no evidence of a broad economic impact was produced.

Stripdown is unlikely to be the cause of substantial lender losses. The reality is that when stripdown is unavailable, nothing changes the fact that the collateral is worth less than the debt owed. If a chapter 13 plan cannot be confirmed and foreclosure results (as is likely), the creditor can only recover the actual economic value of the property.8

There are only three situations in which stripdown is ever the cause of the lender's loss—all of which are unlikely scenarios. In the first, stripdown is unavailable and the debtor somehow nevertheless finds a way to pay both the secured and unsecured portion of the claim either during or after bankruptcy. In the second, the debtor has resources available to be collected in a deficiency action that are unavailable under a chapter 13 plan (and the debtor never obtains a bankruptcy discharge in chapter 7 or 13). And third, although the debtor cannot afford to pay the full amount of the debt, the property would have been misvalued in bankruptcy or would have appreciated quickly between the date of valuation and a foreclosure sale. (Since foreclosures are expensive and since stripdown valuations don't take account of foreclosure costs after Rash, mortgage-holders have a substantial cushion against the third type of loss.9)


While this article does not address underlying arguments on the meaning of the language of §1322(b)(2), the positions expressed here would nevertheless confine the terms of the debate to that language. Where debtors have the better of the plain language arguments, as they may in the context of strip-off, multi-use residential properties, mortgages maturing before or during a chapter 13 plan, and additional security interests in personal property, the legislative history should be no bar to a favorable outcome.10


1 Nobelman v. American Savings Bank, 113 S.Ct. 2106, 124 L.Ed. 2d 228 (1993). See, generally, National Consumer Law Center, Consumer Bankruptcy Law and Practice ch. 11 (5th ed. 1996 and Supp.) for a discussion of the implications of the Nobelman decision. Return to article

2 See, e.g., In re Witt, 113 F.3d 508, 514 (4th Cir. 1997); In re Eason, 207 B.R. 238, 239 (N.D. Ala. 1996); In re Rodriguez, 218 B.R. 764, 775 (Bankr. E.D. Pa. 1998); In re Bauler, 215 B.R. 628, 633 (Bankr. D. N.M. 1997); In re Smart, 214 B.R. 63, 68 (Bankr. D. Conn. 1997); In re Anderson, 209 B.R. 639 (Bankr. M.D. Pa. 1997); In re Fraize, 208 B.R. 311, 313 (Bankr. D. N.H. 1997); In re Neverla, 194 B.R. 547, 550-552 (Bankr. W.D.N.Y.). Return to article

3 Author's Note: Indeed, it does seem peculiar that modification of a mortgage to save a vacation home should be possible in chapter 13, when similar protections are unavailable with respect to a debtor's shelter. Return to article

4 For example, as many courts have held, a completely undersecured secured creditor is not the "holder" of a "secured claim" entitled to the protection of §1322(b)(2). This conclusion is consistent with the plain language of both §§506 and 1322(b)(2) and with the Nobelman opinion itself. See In re Plouffe, 157 B.R. 198, 200 (Bankr. D. Conn. 1993); 8 King, Collier on Bankruptcy, ¶1322.06[1][a], at 1322-21 (15th ed. rev. 1999). Courts that have held to the contrary have frequently cited Congressional intent. See, e.g., In re Neverla, 194 B.R. 547 (Bankr. W.D.N.Y. 1996) (minority position "better reflects Congressional intent"). Similarly, most courts have concluded that the plain language of 11 U.S.C. §1322(c)(2) permits modification of mortgages that have matured during or after a chapter 13 case "notwithstanding subsection (b)(2)." See, e.g., In re Mattson, 210 B.R. 157 (Bankr. D. Minn. 1997) (§1322(b)(2) protections did not apply to loans maturing before end of plan); In re Young, 199 B.R. 643 (Bankr. E.D. Tenn. 1996) (debtors could strip down mortgage if last payment was due before final scheduled plan payment); 8 King, Collier on Bankruptcy, ¶1322.16 at 132252 (15th ed. rev. 1999). In 1997, the Fourth Circuit in In re Witt, 133 F.3d 508 (4th Cir. 1997), concluded that stripdown is not permitted under §1322(c)(2) because it provides for modification of "payments" rather than "claims." The Witt court misreads §1322(c)(2) because the statute plainly refers to "claims as modified." In reaching a tortured interpretation of the language to deny modification, the court relies, in part, on "legislative history." Witt, 133 B.R. at 514. Return to article

5 Grubbs v. Houston First Savings Assn., 730 F.2d 236, 245-246 (5th Cir. 1984). Return to article

6 Indeed, I may speculate that Congress was intending to placate the naked political power of large institutional lenders, but that doesn't help me read the statute. Return to article

7 See, e.g., In re Hougland, 886 F.2d 1182 (9th Cir. 1989); Wilson v. Commonwealth Mortgage Corp., 895 F.2d 123 (3d Cir. 1990); In re Bellamy, 962 F.2d 176 (2d Cir. 1992); In re Hart, 923 F.2d 1410 (10th Cir. 1991). Return to article

8 For a host of reasons, including state anti-deficiency statutes, conversions and discharge under chapter 7, judgment-proof mortgagors and the expense of collection, actual recovery on deficiency judgments after foreclosure is extremely rare. Return to article

9 Note that the high cost of foreclosure also means that if the choice is between stripdown with successful payment of the stripped-down balance and foreclosure with attendant costs, a rational lender should choose the stripdown. Return to article

10 See, generally, National Consumer Law Center, Consumer Bankruptcy Law and Practice, 11.6.1 (5th ed. 1996 and Supp.) for a discussion of the underlying arguments. Return to article

Journal Date: 
Wednesday, December 1, 1999