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Post-C7-Discharge Mortgage Should Equal FMV per Home State Bank?
Because the Supreme Court said so. read Dewsnup v. Timm
502 US 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 - Supreme Court, 1992
dennis
>
> can someone explain why the amount of an underwater mortgage is not re-set
> to the value of the real property upon C7 discharge?
>
> Home State Bank, 501 US 78, says that the in personam claim is discharged,
> but that the in rem claim survives. How does it survive at any amount
> greater than the value of the real property?
>
> at 85...
>
> The conclusion that a surviving mortgage interest is a "claim" under
> 101(5) is consistent with other parts of the Code. Section 502(b)(1), for
> example, states that the bankruptcy court "shall determine the amount of [a
> disputed] claim . . . and shall allow such claim in such amount, except to
> the extent that . . . such claim is unenforceable against the debtor and
> property of the debtor " (emphasis added). In other words, the court must
> allow the claim if it is enforceable against either the debtor or his
> property. Thus, 502(b)(1) contemplates circumstances in which a "claim,"
> like the mortgage lien that passes through a Chapter 7 proceeding, may
> consist of nothing more than an obligation enforceable against the debtor's
> property. Similarly, 102(2) establishes, as a "[r]ul[e] of construction,"
> that the phrase " 'claim against the debtor' includes claim against
> property of the debtor." A fair reading of 102(2) is that a creditor who,
> like the Bank in this case, has a claim enforceable only against the
> debtor's property nonetheless has a "claim against the debtor" for purposes
> of the Code.
>
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can someone explain why the amount of an underwater mortgage is not re-set
to the value of the real property upon C7 discharge?
Home State Bank, 501 US 78, says that the in personam claim is discharged,
but that the in rem claim survives. How does it survive at any amount
greater than the value of the real property?
at 85...
The conclusion that a surviving mortgage interest is a "claim" under
101(5) is consistent with other parts of the Code. Section 502(b)(1), for
example, states that the bankruptcy court "shall determine the amount of [a
disputed] claim . . . and shall allow such claim in such amount, except to
the extent that . . . such claim is unenforceable against the debtor and
property of the debtor " (emphasis added). In other words, the court must
allow the claim if it is enforceable against either the debtor or his
property. Thus, 502(b)(1) contemplates circumstances in which a "claim,"
like the mortgage lien that passes through a Chapter 7 proceeding, may
consist of nothing more than an obligation enforceable against the debtor's
property. Similarly, 102(2) establishes, as a "[r]ul[e] of construction,"
that the phrase " 'claim against the debtor' includes claim against
property of the debtor." A fair reading of 102(2) is that a creditor who,
like the Bank in this case, has a claim enforceable only against the
debtor's property nonetheless has a "claim against the debtor" for purposes
of the Code.
can someone explain why the amount of an underwater mortgage is not re-set to the value of the real property upon C7 discharge?Home State Bank, 501 US 78, says that the in personam claim is discharged, but that the in rem claim survives. How does it survive at any amount greater than the value of the real property?
at 85...The conclusion that a surviving mortgage interest is a "claim" under 101(5) is consistent with other parts of the Code. Section 502(b)(1), for example, states that the bankruptcy court "shall determine the amount of [a disputed] claim . . . and shall allow such claim in such amount, except to the extent that . . . such claim is unenforceable against the debtor and property of the debtor " (emphasis added). In other words, the court must allow the claim if it is enforceable against either the debtor or his property. Thus, 502(b)(1) contemplates circumstances in which a "claim," like the mortgage lien that passes through a Chapter 7 proceeding, may consist of nothing more than an obligation enforceable against the debtor's property. Similarly, 102(2) establishes, as a "[r]ul[e] of const
The post was migrated from Yahoo.